DVA2004-00005, ALSO SEE FLD2004-09068, SGN2004-09020, PLT2004-00016
DV A2004-00005
MANDALA Y BEACH
RESORT
500 MANDALA Y AVENUE
ALSO SEE FLD2004-09068/
SGN2004-09020
&
PL T2004-000 16
..
.
.
Planning Department
100 South Myrtle Avenue
ClealWater, Florida 33756
Telephone: 727-562-4567
Fax: 727-562-4865
CASE #:
DATE RECEIVED:
RECEIVED BY (staff initials):
ATLAS PAGE #:
ZONING DISTRICT:
LAND USE CLASSIFICATION:
ZONING & LAND USE CLASSIFICATION OF
ADJACENT PROPERTIES:
NORTH:
SOUTH:
WEST:
EAST:
o SUBMIT ORIGINAL SIGNED AND NOTARIZED APPLICATION
o SUBMIT 12 COPIES OF THE ORIGINAL APPLICATION including folded site plans
o SUBMIT APPLICATION FEE $ 500.00
DEVELOPMENT AGREEMENT APPLICATION
(Revised OS/22/(2)
~PLEASE TYPE OR PRINT ~
A. APPLICANT, PROPERTY OWNER AND AGENT INFORMATION: (Section 4-202.A)
CBR Development I, LLC, a Florida limited liability company
J.
suite 200, St. Petersburg, 04
APPLICANT NAME:
MAILING ADDRESS:
727-821-2007
PHONE NUMBER:
727-823-0022
FAX NUMBER:
EMAIL ADDRESS:jhObach@jmcdev.com
Hunter Hotel Company, an Iowa corporation, P. O. Box 7230,
PROPERTYOWNER{S): Des Moines, Iowa 50309, and
(Must indude ALL owners)
Mandalay Investments, LLC, a Florida limited liability company, 2201 Fourth street
North, suite 200, St. Petersburg, FL 33704
AGENT NAME: E. D Arm tr n III Es
Burns, LLP
MAILING ADDRESS: P. O. BoX 1368, Clearwater, FL 3375,7~1368
CELL NUMBER:
Bokor
Ru
e1 &
PHONE NUMBER:
727-461-1818
FAX NUMBER:
727~462-0365
B. PROPOSED DEVELOPMENT INFORMATION:
RECEIVED
STREET ADDRESS:
See Exhibit "A" attached.
See Exhibit "B" attached.
NOV 1 9 Z99~
LEGAL DESCRIPTION:
See Exhibit "A" attached.
PLANNING DEPARTMENT
CITY OF CL[ARV/AT[R
PARCEL NUMBER:
9.77 acres m.o.l.
"C"
(acres, square feet)
pROpOSED USE AND SIZEo Multi-use pro; ect, as more particularly des cr ibed .in Exhibit
PARCEL SIZE:
(number of dwelling units, hotel rooms or square footage of nonresidential use)
attached hereto and incorporated herein.
DESCRIPTIO"* OF AN'(. R~LATED REQUEST(S):
See Exhibit 'C attached hereto and incorporated herein.
(approval of a developmentinclude all requested code deviations; e,g. reduction in required number of parking spaces. specific use, etc.)
DOES THIS APPLICATION INVOLVE THE TRANSFER OF DEVELOPMENT RIGHTS (TOR), A PREVIOUSLY APPROVED PLANNED UNIT
DEVELOPMENT, OR A PREV10USL Y APPROVED (CERTIFIED) SITE PLAN? YES ~ NO _ (if yes, attach a copy of the applicable
documents)
Page 1 of 5 _ Development Agreement Application - City of ClealWater
.
.
8.2 DEVELOPMENT AGREEMENTS SUPPLEMENTAL SUBMITTAL REQUIREMENTS: (Section 4-606.B)
An appticalion for approval of a development agreement shall be accompanied by the following (use separate sheets or include in a formal report):
o STATEMENT OF THE REQUESTED DURATION OF THE DEVELOPMENT AGREEMENT.WHICH SHALL NOT EXCEED TEN YEARS
o DESCRIPTION OF ALL EXISTING AND PROPOSED PUBLIC FACILITIES AND SERVICES THAT SERVE OR WILL SERVE THE
DEVELOPMENT;
o DESCRIPTION OF THE USES DESIRED TO BE PERMITTED ON THE LAND, INCLUDING POPULATION DENSITIES AND BUILDING
INTENSITIES AND HEIGHTS;
o INDENTIFICA TION OF ZONING DISTRICT CHANGES, CODE AMENDMENTS THAT WILL BE REQUIRED IF THE PROPOSED DEVELOPMEI\
PROPOSAL WERE TO BE APPROVED;
o ZONING AND LAND USE CATEGORIES OF ALL ADJOINING PROPERTIES;
o COMPLETE NAMES AND ADDRESSES OF ALL OWNERS OR PROPERTIES ABUTTING OR LYING WITHIN 200 FEET OF THE SUBJECT
PROPERTY AS CURRENTLY LISTED IN THE COUNTY RECORDS AS OF ONE WEEK PRIOR TO THE FILING OF AN APPLICATION.
C. PROOF OF OWNERSHIP: (Section 4-202.A)
o SUBMIT A COPY OF THE TinE OR DEED TO THE PROPERTY OR PROVIDE OWNER SIGNATURE ON PAGE OF THIS APPLICATION
D. WRITTEN SUBMITTAL REQUIREMENTS: (Section 4-606.G)
o Provide the following conlents to the development agreement, as follows:
Contents. The approved development agreement shall contain, at a minimum, the following information:
a. A legal description of the land subject to the development agreement
b.. The names of all persons having legal or equitable ownership of the land.
c. The duration of the development agreement, which shall not exceed ten years.
d. The development uses proposed for the land, including population densities, building intensities and building height.
e. A description of the public facilities and services that will serve the development, including who shall provide such public facilities and services; t e
date any new public facilities and services, if needed, will be constructed; who shall bear the expense of construction of any new public facilities a d
services; and a schedule to assure that the public facilities and services are available concurrent with the impacts of. the development. T1 e
development agreement shall provide for a cashier's check, a payment and performance bond or letter of credit in the amount of 115 percent of tl e
estimated cost of the public facilities and services, to be deposited with the city to secure construction of any new public facilities and servio s
required to be constructed by the development agreement. The development agreement shall provide that such construction shall be complell d
prior to the issuance of any certificate of occupancy.
f. A description of any reservation or dedication of land for public purposes,
g. A description of all local development approvals approved or needed to be approved for thEi development.
h. A finding that the development approvals as proposed is consistent with the comprehensive plan and the community development cod
Additionally, a finding that the requirements for concurrency as set forth in Article 4 Division 10 of these regulations have been satisfied.
i. A description of any conditions, terms, restrictions or other requirements determined to be necessary by the city commission for the public healt ,
safety or welfare of the citizens of the City of Clearwater. Such conditions, terms, restrictions or other requirements may be supplemental 0
requirements in existing codes or ordinances of the city.
j. A statement indicating that the failure of the development agreement to address a particular permit, condition, term or restriction shall not relie e
the developer of the necessity of complying with the law governing said permitting requirements, conditions, terms or restrictions.
k. The development agreement may provide, in the discretion of the City Commission, that the entire development or any phase thereof e
commenced or be completed within a specific period of time. The development agreement may provide for liquidated damages, the denial of futu e
development approvals, the termination of the development agreement, or the withholding of certificates of occupancy for the failure of II e
developer to comply with any such deadline.
I. A statement that the burdens of the development agreement shall be binding upon. and the benefits of the development agreement shall inure t
an successors in interest to the pa_rties to the development agreement.
m. All development agreements shall specifically state that subsequently adopted ordinances and codes of the city which are of general application
not goveming the development of land shall be applicable to the lands subject to the development agreement, and that such modifications a e
specifically anticipated in the development agreement.
Page 2 of 5 - Development Agreement Application - City of ClealWater
.
.
E. SUPPLEMENTAL SUBMITTAL REQUIREMENTS: (Section 4-202.A)
o SIGNED AND SEALED SURVEY (induding legal desaiption of property) - One original and 12 copies;
o COpy OF RECORDED PLAT, as applicable;
o PRELIMINARY PLAT, as required;
o LOCATION MAP OF THE PROPERTY,
o TREE SURVEY (including existing trees on site and within 25' of the adjacent site, by species, size (DBH 4" or greater), and location,
induding drip lines.)
o GRADING PLAN, as applicable;
.
F. SITE PLAN SUBMITTAL REQUIREMENTS: (Section 4-202.A)
o SITE PLAN with the following information (not to exceed 24" x 36"):
All dimensions;
North arrow;
Engineering bar scale (minimum scale one inch equals 50 feet), and date prepared;
Location map;
Index sheet referencing individual sheets induded in package;
Footprint and size of all buildings and structures;
All required setbacks;
All existing and proposed points of access;
All required sight triangles;
Identification of environmentally unique areas, such as watercourses, wetlands, tree masses, and specimen
trees, induding desaiption and location of understory, ground cover vegetation and wildlife habitats, etc;
Location of all public and private easements;
Location of all street rights-of-way within and adjacent to the site;
location of existing public and private utilities, induding fire hydrants, storm and sanitary sewer lines, manholes and lift stations, gas
and water lines;
All parking spaces, driveways, loading areas and vehia.llar use areas;
Depiction by shading or crosshatching of all required parking tot interior landscaped areas;
Location of all refuse collection facilities and all required screening (min. 10'x12' dear space);
Location of all landscape material;
Location of all onsite and offsite storm-water management facilities;
Location of all outdoor lighting fixtures; and
Location of all existing and proposed sidewalks.
o SITE DATA TABLE for existing, required, and proposed development, in writtenltabular form:
Land area in square feet and acres;
Number of dwelling units proposed;
Gross floor area devoted to each use;
Parking spaces: total number, presented in tabular form with the number of required spaces;
Total paved area, induding all paved parking spaces and driveways, expressed in square feet and percentage of the paved vehicular area;
Size and species of all landscape material;
Official records book and page numbers of all existing utility easement;
Building and structure heights
Impermeable surface ratio (I.S,R.); and
Floor area ratio (FAR.) for all nonresidential uses.
o REDUCED SITE PLAN to scale (8 Y. X 11) and color rendering if possible;
o FOR DEVELOPMENTS OVER ONE ACRE, provide the following additional information on site plan:
One-foot contours or spot elevations on site;
Offsite elevations if required to evaluate the proposed stormwater management for the parcel;
All open space areas;
Location of all earth or water retaining walls and earth berms;
Lot lines and building lines (dimensioned);
Streets and drives (dimensioned);
Building and structural setbacks (dimensioned);
Structural overhangs;
Tree Inventory; prepared by a "certified arboris\", of all trees 8" DBH or greater. reflecting size, canopy (drip lines) and condition of such trees.
Page 3 of 5 - Development Agreement Application - City of Clearwater
.
.
G. LANDSCAPING PLAN SUBMITTAL REQUIREMENTS: (Section 4-1102.A)
o LANDSCAPE PLAN:
All existing and proposed structures;
Names of abutting streets;
Drainage and retention areas induding swales, side slopes and bottom elevations;
Delineation and dimensions of all required perimeter landscape buffers;
Sight visibility triangles;
Delineation and dimensions of an parldng areas including landscaping islands and curbing;
Proposed and required parking spaces;
Existing trees on-site and immediately adjacent to the site, by species, size and locations, induding dripline;
Location, size, description, specifications and quantities of all existing and proposed landscape materials, induding botanical and
common names;
Typical planting details for trees, palms, shrubs and ground cover plants including instructions, soil mixes, backfilling, mulching and
protective measures;
Interior landscaping areas hatched and/or shaded and labeled and interior landscape coverage, expressing in both square feet and
percentage covered;
Conditions of a previous development approval (e.g. conditions imposed by the Community Development Board);
Irrigation notes.
o REDUCED LANDSCAPE PLAN to scale (8 %X 11) (color rendering if possible);
o IRRIGATION PLAN (required for level two and three approval);
o COMPREHENSIVE lANDSCAPE PROGRAM application, as applicable.
H. BUILDING ELEVATION PLAN SUBMITTAL REQUIREMENTS: (Section 4-202.A.23)
Required in the event the application indudes a development where design standards are in issue (e.g. Tourist and Downtown Districts) or as part
of a Comprehensive Infill Redevelopment Project or a Residentiallnfill Project.
o BUILDING ELEVATION DRAVVlNGS - all sides of all buildings induding height dimensions, colors and materials;
o REDUCED BUILDING ELEVATIONS- four sides of building with colors and materials to scale (8 % X 11) (black and white and color rendering, if
possible) as required.
I. SIGNAGE: (Division 19. SIGNS I Section 3-1806)
o Comprehensive Sign Program application, as applicable (separate application and fee required).
o Reduced signage proposal (8 % X 11) (Color), if submitting Comprehensive Sign Program application.
J. TRAFFIC IMPACT STUDY: (Section 4-801.C)
o Include as required if proposed development will degrade the acceptable level of service for any roadway as adopted in the Comprehensive Plan.
Trip generation shall be based on the most recent edition of the Institute of Transportation Engineer's Trip General Manual. Refer to Section 4-801
C of the Community Development Code for exceptions to this requirement.
K. SIGNATURE:
I, the undersigned, acknowledge that all representations made in this
appfication are true and accurate to the best of my knowledge and
authorize City representatives to visit and photograph the property
described in this application.
STATE OF FLORIDA, COUNTY OF PINELlAS
Sworn to and subscribed before me this ~ J'TIt- day of
September ,A.D. 20 04 to meandlo'r by
E. D. Annstrong II~ who is personally knownxM
~ to me. x~:
::~MxI.
Signature of property owner 0 epresentative
E. D. A.rmstrong III, Esquire
~t.~
My commission expires:
....,-:;It.!i:;:... Jayne E. Sears
f:~'-JJ;:~;~ MY COMMISSION # OD041066 EXPIRES
:~:'~-?f September 2. 2005
'........- ..
#'''.n'''-
Page 4 of 5 - Development Agreement Application - Cityof Clearwater
09-22-04 05:25pm
From-JOHNSON,PO'lllr
7274418617
.
T-148 P.02/05 F-368
AFfiDAVIT TO AUTHORIZe AGENT:
HUNTER HOTEL COMPANY, an Iowa corporat:ion,. formerly known as FloriC1a Clearwater Beach
Hotel Co.
(Names of all property owoers on deed - please PRINT full names)
1. Thai (I Bmlwe are) the owner{s) snd record title hol~er(s) "(the following describ(Jd property (address or general location):
500 Mandalay Avenue and adjoining par<:el$ lnOre particularly described on Exhibit "An
attached hereto ~nd inc~zporated herein.
2. That this property constitutes the property for whIch a request for a: (describe req\Jesl)
Flexible development approval for co~)rehensive infill redevelopment projectl development
agreement application, comprehensive ,.ign progr~ aI~lication, comprehensive landscape plan
application and requests for vacation of right-of-w~~
3. That th~ undersi9ned ChasJhave) appointed Bnd (does/do) <Ippolnt: E. D. Al:mstrong III. Esquire, of Johnson, Pope.
Bokor, Ruppel & Burns, LLP
85 (hlsltheir1 agent(s) to execute allY pelilions or other documenl:i ne<:ess<lry tQ ccffed sl.tCh petition;
4.
5. . That site visits to the property are necessary by City representatives in order to
represp.f1tatives to visil: a~ photogmph .th~ propeny desaibed in this application; .
6. Thai (l/'oNe), (he undersigned authority, hereby certify that the foregoing is lJ'ue a
HUNTE
--'
.. Property ONner.
Property OWner
STATE OF IOWA
. couNTy OF P6LK' )
Before me lhe undersIgned. an otru:.er duly commissioned b~ the laws of the Stale. of Florida, o,! this' a < ~ ~ day of
september ,~~ personally appeared Jeff Hunter, as Vl-ce Pr.es:t.dent" whOhaVing been first dufy sworn
Deposes and $ays that he/she fully understands tt)e contents of the affidavit that helstl~ signed.
~of Hunter Hotel Co an, an Iowa . ~ c/ ( ~ ./ b1
corporation, on be ~. lpf ~u~a;r:a: , ./....~ 7~~,
. t'"# ....uK"r.....u Not<lry rublic
My Commission FJq)irt!s; ~ " F CommIssion NUmber 225533
< ;0:. VI Commission Expires
I
.
i
I
I
"-...-.
U~-LL-U4 u~:'lpm
rrom-Ju"n~un,ru~
'''-''1100 II
.
J-t~f .r.U">>~ r-~ul
I AFFIDAVIT TO AUTHORIZE AGENT;
_ MANDALAY INVESTMENTS , LLC. a Flori dl'l 1 i wi tl"d 1 ; ",hi lity cOrnP;my
(Names of all property owners on deed - please PRINT full ~mes)
1. That (I aml\A,~ are) the ownef(s) and record title holder(s) of the fOllowingdeSCl'ibGd propeny (address or general location):
Parcel located at 470 Mandalay Avenue, as more particularly described on Exhibit "A"
~~hed hereto
helein.
2. That this property constitutes the propeny for which a requestfOf a: (desctibe request)
Flexible developlllentapproval for cc.mprehensive infill redevelopment project; development
agreement application, comprehensivE: sign program application, comprehensive landscape
. .. . . - "
plan application and requests for vQcation of right-of~way_
3. That the undersig",-"<1 (haVh3ve) appointed and (does/dol appoint E. D.~rttistroncj III I Esquire, of Johnson,
Pope, Bokor, Ru~pel & Burns,LLP
as (hisltl\eir) llgentls) to elCeClJte- any petitions or other dClCUmentsnecessary to affect such petition:
4. That this affidavit ~as been executed to induce the CitYOl Clearwater, Florida to (;onsi<3er and act 00 the above described property:
5. That site visits to the prop.my are necessary by City reprc,sentativesin order to p.'occss thIs application and the owner authorizes City
representatives to visit and photograph the pro~rty described In this application:
G. That (1Iwe). the undersignedau!horiry. hereby certify that !he foregOing Is \tI.Je 3l'\dcOrrecl
MAND1U.AY INVESTMENTS,
limit iahi' t
Propc
B'I :
Property
a F).orida
Property Owner
STATE OF FLORIDA
COUN1Y OF PINatAS
Before me the undersigned. an officer duly commissioned by tile 1aws o(the Stllte of Florida. on t/lis ..' ~ JI 'f"'h.- day of
September .2004 personally appeared J. Mi(mael Cheezem, as ~anaging* who having been first dol)' sworn
Deposes and says that he/she fully understllndS the contents (,f the affidavit that heJshesigoed.' .
*Member of Mandalay Investments, LLC, a ~.., ~r ~
Florida limited liability company, ~ Notary Public
My Commission Expires:
"".,~:::~~ Ja,ne r. SIWI
trA'~~ MY COMMISSION I 00041066 EXPIRES
~~~,; September 1. 2005
"':f.iif.~~., 80NDfD THRU TROY FoW INSURANCf.1NC.
::;~SEf'';:'22:';'2004 "'17:20:'';>/'
7274418617
~ .'-!';
97;,:;,:,.
P.02'
,- -., ": 'j--,.- : ,. .-~~;
_.:....:_ u ::...,.:,...
.
.
AFFIDAVIT TO AUTHORIZE AGENT: (BY APPLICANT)
CBR DEVELOPMENT I, LLC, a Florida limited liability company
1The-tindersi9'ne~ is the~applicari.t regard,i.n<jhe following descobed property (address or general location):
Parcels 08/29/15/16398/000/0530, 08/29/15/16398/000/0490, 08/29/15/16398/000/0090,
Ul:l/ .I.':J/ 1.';:)/ lb.:i':Jl:l/UUU/UUbU, UH/l':J/.l~/ Ib39B/OOU/OO.lO, Ul:l/l':J/ 1.';:)/ 1.b,jl:lu/uUu/uulu ,~~--'-'-:'-:-::-T::--~~':1"
OS/29/15/57924/000/0010 and 08/29/15/16398/000/0430
2. That this property constitutes the property for which a request for a: (describe request)
Flexible development approval for comprehensive infill redevelopment project; development
agreement application; comprehensive sign program application, comprehensive landscape plan
application and requests for va~ation of right~of-way.
3. That the undersigned (hasJhave) appointed and (does/do) appoint
pope, Bokor, Ruppel & Burns, LLP
E. D. Armstrong III, Esquire, of Johnson,
as (hisllhelr) agent(s) to execute any petitions or other documents necessary to affect such petition;
4. That this affidavit.has been executed to induce the City of Clearwater. Florida to consider and act on the above described property;
_ applicant
5. That site visits to the property are necessary by City representatives in order to process this application and the . I authocizes City
representatives to visit and photograph the property described in this apPlication;
6. That (1Iwe). the undersigned authority, hereby certify thaI the foregoing is true and correct.
CBR DEVELOPMENT I, LLC, a Florida limited
liability company
:By: -CBR Communities I,' Ltd.'," a".:Florida limited
partnership, Manaqing~~mber
By: JMC 00 nities of Clearwater V, Inc.,
a Flo id co', r tion, General Partne
By:
STATE OF FLORIDA
COUNTY OF PlNaU\S
;1<0"--
Before me the undersi9!led, an officer duly commissioned b.Y Jh~ laws of tbe State of Florida, on this day of
September . 2uu4 personaUyappeared J. M1.cnael Cheezem, as CEO of. whOhavlngbeenfirstdulyswom
Deposes and says that helshe ful . at helShers.;-. ~ _.
~ GAllt.lCOOPER 'LJ y, r~
W~f ';~ MYCOUMI~ION'D0107231 -Nolarvf\sblic -
?J: . ~ EXPIRES. May 14, 2006 Notary blic
My Commission Expires: .,,,,~.~ IlondedThnlNolllyP1Alllc~
*JMC Communi ties of Clearwater V, Inc., a Florida corporation, General Partner of CBR
Communities I, Ltd., a Florida limited partnership, Managing Member of CBR DEVELOPMENT I, LLc,
a Florida. limited liability co~any
c0"d
./.86
L1981t717/...CL
.
61:11 v00c-8c-d3S
AFFIDAVIT TO AUTHORIZE AGENT: (BY ~'\PPLICANTJ
CBR DEVELOPMENT n,LLe, a Florida limited liabllity company
. . ...
rrhe:un4ersi<jne9. is the:.applicant regardinghe following deS(~ .properly (address (,1( generall0C8lion):
Parcels 08/29/15/16398/000/0530, OEl/29/15/16398/000/0490, 08/29/15/16398/000/0090,
08/~~/~5/1b~~tl/Uuu/uubU, Utl/~~/l~/Lb~~~/UOU/uU1U, Otl/~~/~~/Ab~~U/UUU/vv~O, .-___~~~_~
OS/29/15/S"92~/OOO/OOIO and 08/29/~5/16398/000/~O,.."> '.. '."
2. Tf1;tt thIs property constltute3lhe property fOr which n ~lIeStfo~:.: (cklSCtibo ~) . .... ..... ....; ."
Flexible development:. approval. for clQmprehensi.'\re .infil.l redeVelo~t projoct;. develoPJl\ent
agreement application; comprehensh"p. sign program .appli:ca"4c>ntcon,ti>teheriSive;;:l~dscape p.lan _
appl1.cation and requests for vacati.on of right-ot-If~Y......_
3" Thet the undersigned (haslhave) appointed sfId (doe:;/do) appoint:
Pope, Bokor, Ruppel & Burns, LLP
E. D. AnnStrong :J:IX,Esquire, of Johnson,
ll$ (hlslthei" agent(s) to ~oc:ule any petitions or oth<:r documents fleCeS~llry 10 ~lfod wch petition; .
A" Tha~ this effidavlt has been executed 10 In<luce the CI'.y of C1e3~er. FIorfda tu.?~,~!)~ Dctj~~,~~.~~Ji~~~:~
5. That site visits to the propelti :110 neoassary by City ~rosontstives In ordor to Jlroces.slhls3PP~o'l"andthe"j >iWtfl6Rzn CIty
representaUve$1o VISit .nd photogr.lph the propcttyclesaibed In lh~ ~ ". .... '.. .' .... '.' ..... .. :',;:"iI
6. That. (1Iwe), ~ underslgnedalllborlty.hereby cartify t"'at the foregoinQ Is t'U8 slid correct.. .' .... ..... '. '.', '. .'<.' ." "'~' '. " ...
CBRDlWELOPMENT II., LLC;' a'-Fidfi.'da:'limited
liabLlity _t?o~~y ,_,:-_. i~
- '.
By: . CBR COmmunities IIj' Ltd. :,' a ';Florida linti te
--l>artnership, Hahag ing:...Member
ily: JMC Communities of Clea.rwaterVI. Inc.,
a Flo i a Co . atibn, General Partne
. .
-'
STATE OF FLORIDA )
COUNTY OF PfNaLAS ). .. '. .. ""'" .".'
Se~1,="":--"=:~~71"~.~';(j.r'1,i:"~"=.:"
Deposes and says that helshe fufIy Understands the contents oflhe aflldavillhat 1JeIS..,B;tL.. s' Ign.............;. .' '.. '. .... ". . ..... .:......:..... -.:7;;.~...... .... ". .
..... ~;.. f~.".'i>...'.>....
'. . ../~:.E<'~
Notary p
My Commls:;lon ExpIres:
*JMC Communities of Clea:rwater~ Inc., a :E'lorida corporation, General Partner of CBR
Communities H. Ltd., a Florida limited partnership, Managing Metllber of CBR DEVELOPMENT:O, LLC,
a Florida limited liability campany
~~~"" . GAIl M. COOPER
f/tA"~ MY COMMISSION' 00107231
~EXPfRES: May 14, 2006
~~.. IlondodThnl Notary NlIic UndenorteIs
.
.
EXHIBIT "A"
Map
# Parcel No. Address Legal Description
(Owner)
1 08/29/15/16398/000/0530 495 Beach Lots 53, 54, 55 and 56,
(Hunter Hotel Company) Drive Clearwater Beach Park,
according to the plat thereof
recorded in, Plat Book 10, Page
42, Public Records of Pinellas
County, Florida.
2 08/29/15/16398/000/0490 Vacant Lots 49, 50, 51 and 52,
(Hunter Hotel Company) Clearwater Beach Park,
according to the plat thereof
recorded in Plat Book 10, Page
42, Public Records of Pinellas
County, Florida.
3 08/29/1516398/000/0430 470 Mandalay Lots 43 through 48, Lots 65
(Mandalay Investments, Avenue through 71 and the South 14.75
LLC) feet of Lot 64, Clearwater
Beach Park, according to the
plat thereof recorded in Plat
Book 10, Page 42, Public
Records of Pinellas County,
Florida.
4 08/29/15/16398/000/0090 470 Beach Lots 9, 10, 11, 12 and 13,
(Hunter Hotel Company) Drive Clearwater Beach Park,
according to the plat thereof
recorded in Plat Book 10, Page
42, Public Records of Pinellas
County, Florida.
5 08/29/15/16398/000/0060 Vacant Lots 6; 7 and 8, Clearwater
(Hunter Hotel Company) Beach Park Subdivision, as
recorded in Plat Book 10, Page
42, Public Records of Pinellas
County, Florida.
.
.
6 08/29/15/16398/000/0010 490 Beach Lots 1 through 5, inclusive,
(Hunter Hotel Company) Drive Clearwater Beach Park
Subdivision, according to the
plat thereof recorded in Plat
Book 10, Page 42, Public
Records of Pinellas County,
Florida.
7 08/29/15/16380/odo/0010 500 Mandalay See Exhibit "A-1" attached.
(Hunter Hotel Company) Avenue
8 OS/29/15/57924/000/0010 500 Mandalay See Exhibit "A-1" attached.
(Hunter Hotel Company) Avenue
#328195 v3
.
.
Best copY l
A"ailab1e f
/1 ~
.' h Cd] B5J
! .
.
.
.
~'- \
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EXHIBIT "A_l"
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PARCEL I:
THAT PART OF TRACT A OF A RE-SUB, OF BLOCK 10 AND II AND LOTS 2 TO 15, INCLUSIVE,
BLOCK 9, OF THE REVISED MAP OF CLEARWATER BEACH, AS RECORDED IN PLAT BOOK 19,
PAGE 96 OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA, DESCRIBED AS
FOLLOWS: BEGIN AT THE SOUTHEAST CORNER OF THE SAID TRACT A AS SHOWN AS 3.68
ACRES, THE P.O.B. BEING A POINT AT THE INTERSECTION OF THE NORTH LINE OF
BA YMONT STREET, AS SAID BA YMONT STREET IS SHOWN ON SAID RE-SUB OF BLOCKS 10
AND 11 AND LOTS 2TO 15, INCLUSIVE, BLOCK 9 OF THE REVISED MAP OF CLEARWATER
BEACH, WITH THE WESTERLY LINE OF MANDALA Y ROAD, AND RUN mENCE N 20" 45' 00" E,
182.23 FEET; THENCE N 01044' 00" E, 110.51 FEET TO THE CENTERLINE OF AMBLER STREET,
AS SAID AMBLER STREET IS SHOWN AND DEDICATED AS A PUBLIC STREET IN THE
REVISED MAP OF CLEARWATER BEACH, AS RECORDED IN PLAT BOOK 11, PAGE 5, OF THE
PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA; THENCE WEST ALONG mE
CENTERLINE OF SAID AMBLER STREET 420.00 FEET MOL TO THE WATER OF THE GULF OF
MEXICO, THENCE IN A SOUTHERLY DIRECTION ON A MEANDERING LINE ALONG THE
WATERS OF THE GULF OF MEXICO, 321.00 FEET MOL TO THE CENTERLINE OF SAID
BA YMONT STREET, THENCE EAST 385.00 FEET MOL ALONG SAID CENTERLINE OF
BA YMONT STREET TO A POINT 40.00 FEET soum OF THE P .O.B. THENCE NORUI 40.00 FEET
TO THE P.O.B.
PARCEL 2:
THE NORTH 20.00 FEET OF AMBLER STREET LYING WEST OF THE EAST LINE OF LOT 9,
PROJECTED SOUTH AS SHOWN ON TIlE PLAT OF MILLER'S REPLA T, AS RECORDED IN PLAT
BOOK 26, PAGE 17 OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA.
PARCEL 3:
LOT 1 AND 10 AND THE SOUTH 80.00 FEET OF LOT 9 OF MILLER'S REPLA T AS RECORDED IN
PLAT BOOK 26, PAGE 17, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA.
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EXHIBIT B
SOUTH BLOCK
Lots 1 - 13 and 49 - 56, Clearwater Beach Park, as per plat thereof recorded in Plat
Book 10, Page 42, of the Public Records of Pinellas County, Florida.
Lots 43 through 48, Lots 65 through 71, and the South 14.75 feet of Lot 64,
CLEARWATER BEACH PARK, as recorded in Plat Book 10, Page 42, of the Public
Records of Pinellas County, Florida.
NORTH BLOCK
PARCEL 1:
THAT PART OF TRACT A OF A RE-SUBDIVISION OF BLOCK 10 AND 11, AND LOTS
2 TO 15, INCLUSIVE, BLOCK 9, OF THE REVISED MAP OF CLEARWATER BEACH,
AS RECORDED IN PLAT BOOK 19, PAGE 96, OF THE PUBLIC RECORDS OF
PINELLAS COUNTY, FLORIDA, DESCRIBED AS FOLLOWS:
BEGIN AT THE SOUTHEAST CORNER OF THE SAID TRACT A AS SHOWN AS 3.68
ACRES. TO THE POINT OF BEGINNING, BEING A POINT AT THE INTERSECTION
OF THE NORTH LINE OF SA YMONT STREET, AS SAID BA YMONT STREET IS
SHOWN ON SAID RE-SUBDIVISION OF BLOCKS 10 AND 11 AND LOTS 2 TO 15,
INCLUSIVE, BLOCK 9 OF THE REVISED MAP OF CLEARWATER BEACH, WITH
THE WESTERLY LINE OF MANDALA Y ROAD, AND RUN THESE N 200 45'00" E,
182.23 FEET; THENCE N 010 44'00" E, 110.51 FEET TO THE CENTERLINE OF
AMBLER STREET, SAID AMBLER STREET IS SHOWN AND DEDICATED AS A
PUBLIC STREET IN THE REVISED MAP OF CLEARWATER BEACH, AS RECORDED
IN PLAT BOOK 11, PAGE 5, OF THE PUBLIC RECORDS OF PINELLAS COUNTY;
FLORIDA; THENCE WEST ALONG THE CENTERLINE OF SAID AMBLER STREET
. 420.00 FEET, MORE OR LESS, TO THE WATER OF THE GULF OF MEXICO;
THENCE IN A SOUTHERLY DIRECTION ON A MEANDERING LINE ALONG THE
WATERS OF THE GULF OF MEXICO, 321.00 FEET, MORE OR LESS, TO THE
CENTERLINE OF SAID BA YMONT STREET; THENCE EAST 385.00 FEET, MORE OR
LESS, ALONG SAID CENTERLINE OF BA YMONT STREET TO A POINT 40.00 FEET
SOUTH OF THE POINT OF BEGINNING; THENCE NORTH 40.00 FEET TO THE
POINT OF BEGINNING.
PARCEL 2:
THE NORTH 20.00 FEET OF VACATED AMBLER STREET LYING WEST OF THE
EAST LINE OF LOT 9, PROJECTED SOUTH AS SHOWN ON THE PLAT OF MILLER'S
REPLAT, AS RECORDED IN PLAT BOOK 26, PAGE 17, OF THE PUBLIC RECORDS
OF PINELLAS COUNTY, FLORIDA.
PARCEL 3:
LOT 1 AND 10 AND THE SOUTH 80.00 FEET OF LOT 9 OF MILLER'S REPLA T, AS
RECORDED IN PLAT BOOK 26, PAGE 17, OF THE PUBLIC RECORDS OF PINELLAS
COUNTY, FLORIDA.
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EXHIBIT "B"
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LEGAL DESCRIPTION
BlocK 1 LOT 1
lEGAL 0CSCRJp11ON:
PAACU "
rNtT OF TRACT A OF . A RE-SV80IVISIOH or BLOCK '0 J.HJ t,. AHO LOTS t TO 'S.
'NCl.U$''f'E~ Roo: S. Of'" THE 1tEV15n) IIW" or a..LARwATER 8EACH. AS RECOROE"D'If I"U.T
BOOK IS. rAGE. K. Of" n< .......c R(COOOS Of" rUCEl.LU COUNTY. rUJfUOA.. OE$.CRI8€O
AS FClU.OIiS:
BEC;IN AT nE SOO1lfE.Ur CORNER OF TtE: $.AID TRACT A A.$ St10WN AS 3.Ge AcREs. TO TfoE
PO'NT Of' N:GU".HG. KINe: A rOINT AT TJ1[ tHTERSCCHON OF THE NORllt LINE Of"
IA.lM:IHT STRaT. .AS SAID 8Al'\<<)NT STRUT '$ SttOWN ClH SAID R€"-SUBO'VIStoN Of" 8LOCK
10 AfrC) II. IH:J LOTS t TO 15. fHQ..USIY(". IN...OO( '0 Of' TlE: REVISED MAP OF
a...ENnrATEJt: 1EA.at. WITH TK: t1ESTOll.Y LINE OF lIW<<W...Ay ROID. AHJ IteM THESE
NlO"'4S'OO.[. tal.U FEET; THEHa:: NO'.""OO.E. I to.51 FEET To THE CEHTOl...hl: OF
MIBLDt STREET. SAIO MBLER STREET IS SHCMN AND om'CATED 1\$ A ha.IC STREET IN
THE. AEV'SED MIll" OF Cl.EMw""ER eEAcH. AS- "ECOROEo IN ruT 800<< II. rM;€. I. OF 1l€:
P'UltLIC RECORDS OF "frElU.$ COUlIfTY. nORIDA.: THENC(. "EST ALONG THE CE:HnlllLnE: OF
SAID M8lLR -~l'REET 4tO.OO faT. IClRE OR lESS. TO 'J1i( WATER OF THE C\.\.F OF
IlEX'CO: THEHcE. IN A SOUTHE:Rl..Y DIRECTION OH A lEAHOCR'NG UHf AL(WG THE WATERs or
~ CUlF Of" M::x'co. 3ZI.OO f'EET. MaR( OR LESS, TO THE: CENTERt.INE Of" SAID SA....",..-
ITREEr: lHENCE EAsT 305.00 FEET. aOtc Oft USS. ALONG SA'O COITERLfN( OF I4'IM>>fT
STREET TO A rotHT 40.00 FEET SOUTH OF TK: rotHT Of 8t:G'...,NG: Tl€HCt" HOftTH 40.00
FaT To THE POfNT Of' 8('G:IMfIHG. .
rAACU 2:
THE NORTH 20.00 FEl:T Of" VACA,ttD MI8c....Dt STREET LYING IlEST OF 1lE EAsT LlH[ OF LOT
t. rttOJE~D SOUTH " SHOWN ON THE PLAT or WILLER" Ra'UT. AS ItECORoc.D IN P1....AT
80CIC Z5. PAJ;E 'T. OF TlE: f"UBt.fC R(C:Oft>S OF I"f4ELU.S COUlTY. "-ORIGA.
PARCO. ~
LOT , IkJ 10 NfD lIE SOUTH eo.GO FH:T OF LOT , OF MIl..J.LR', REP1...AT. AS ItECOR(JOJ
'tfl'lAT 600K 2e. PN:C. U. OF THE I'UBt..IC RECORDS or "'HEl.LAS COUNTY. fUJR,OA.
1- AS ILl ... _ """ OF ....YETI
lOl:E1ttDl IflH:
n.. _.ful. .,1., W... ., t.. r:....C'., Jti...-...."., ".. .. c.u "'''''' .. .,...
.. ... .I.f ., c:tLIoAWATER 8EACH. .. "'eef'.' ,. .,.. .... a. ,.,. I .. ...
.....c 1t_',4<< .t .1..".. t...". F',,,,<<. f,I., E.., .t t.. ..... H'" w...,
L... .t u. C.1f .t .....c.. 1,1., N.d. <<, ... .....,., ..h..h. ., U. .....
fI.. .t.... ,..,.. 20.00 h.. -., ....., .'nt'. .. ..... .. ..1. .,., ..
Cl...LMWA1'tJt aE4at eu ... ..,.. .. REviSED ...,. OF t:LEMwATDt eEAaf. .. t.c.,.... ..
Pl., .... ". ."" $., ... .." 1$ It.c..... ., .i....... c...t,. F..,..... ...
.,Ia, s.v.. af tk ......'" ..._.,.. ., ... ...,.. II.. ., Lt. _. MIUDt'S
IlErl.AT. .. "c'~"4 I. .h. .... r6. ,et. .7.f U. ....,Ie It.u,'. .. "hel'..
c....,.. "'e,'".
ALl. lIOI<<; IIORE PARlIQJlNll. Y 0Esal&D AS;
A. ,...ul ., .... ..,., . ,.rfl.. ., Trecf A. .A lItE-SUI OF Iloacs 10-,. AHO LOTS
I TO IS lHa... IlL.Oat . OF nt: ItEVUO)...,. OF a...EARwATtR ~9. .. '-urlle" ..
,.,.. ..~. I.. '.f. K '.' '11. ,...tlc: I.eu.. ., ,.....,.. e.."",. Fl.,....
t......, .u. t... '. L.f '0 .... ". I.... IiP.OO h.t .t l... S. .MIU.EJt.S
IlEPLAT9. ... 'ee.'..4 J. ".f I.., K. ,... 17 ., 'k .....,e It.e.r.. .t ,.,..,,..
C._I,. "";'4a. ....t..,- .i " . ,.,u.. .. ....uh4 "...t-......,.t .....,.
Sf,..... HC.t.,." .. ...-, ""1.l.ER'S ItU'l...AT.. hf".'" ."It . ;.,......t "ute4
.',..-..-"., .t c.,. 0..'..... .cc.,...., f. -~TEJll: tEAai..,.' ,.~..... .. ....t
".t: s.. ,.,. 2 .t t.. .....,e a.c.,.. .t ",..".. c...t,. Fle""_. t...tlt., .1.1t
. ,....... .t '.cll... . ..4 e. r......" << ...... It.".. 15 E..t. .1......
c...fr. ,.,.',.... "I.. -,. ,.ffle.I.,I, "'C'.." .. '.11....:
tEelH .t ... a........ e.n., ., Tue' ". ." "-SUB or 1l.0CK$ '0-11 N*J lOTS 2
TO U 'NCL~ ....OCK I OF THE REVISED MAP or: Q...[:MwATU 1iEAoOf... .. ...c....... .. "f.,
.... ". ,... M -'f .... '''"e ".c.,.,. .t ',...... e...t,. "'.,..,.: .It."e.
ICU.3r'~'-E-" ..... ... C... fl.. .f .... Tract A. ..,.. ,.,.. tlte ...,
.''''-.'-W., ..".... ........, A....... aCe.f.i.. h..,. .A JIIE-SUI Of' kDCKs
,0--" NrG LOT. t 10 '5 11JifCt.. 8L0Ct( I OF lliE ftty'$(J) IIW' OF" Cl.ENI'WArvt 1tOat..
f.":lat~>> '..': .....e. c..,.... .,.., ..., .E.., 1I...t T'ee' A. .... '.h,
,,'4 ....,.11I1...'-.'-.., .... .t ......,V A........ NOz-"4.'34.E. '.r "0.10 h.. h
tit. "'ef ., '.f.,...etl.. "It, fill. -I.... .....'-.f...., II.. ., .....,. ."".'.
.cc..."., .. ~"'um.. 1IEf't..A,.... '.e.r..... I. ..... .... 26. p.t. .7 .. f....
r..uc Wee..... ., ,,...... e.....,. ,..,,..: ".IIU ""05'h..~ .r.., ..1. a....
,u.......-w., II.. .. .....,. Ih.... .., 160.00 ,..t .. '1tIe ~..t ., ....,..dl..
"'." ... k..Iit.", ......,.. .,"~, C..t .... .'L.t '. ..1. ""UDt'. "ErlA.T-:
t....u ~4. '~.C. .,.., ..14 a..'lter., .."ul." .t ... E.., II". ., l.. I.
.... .... E..f II.... Lef '. '..,'Cfh.". f.r 100.0$ ._, t. ,.. p.te. ..
I...,....~tl.. .ltlrt ... th..t. 'h. .. n. ...... eo.OO h.f .f .." l.., _; ,It..u
",,-,,'SS-W. ..... ..i. N.,.. II.. ., 'M .I....IO.O() te.. .t l.' '. .... CO.oo
,.., t. ... '."t.t "'.r..~I(.. "". ,.. W.., II.. ., .... l..t _: ,tt",c.
H02-'4">>4-c. .,."" ..ff W... If.. .f l.f'. .... '.K h.t .. ,... ..",_..
ui..,. ., '.ff L... ... ,...c.....NOr(K..S'... .,."" 'Ill. ...". II.. .f l.t '0. ..I'
""UQt'S AEPt.A.T.~ ,... ........ If.. .f ht I, .... -...ULJt'S IlEPLAT... .ft' ...
W....',' ......,.. .t .... Me,." .... .f l.t '. ",.,.c''''.''' f., 511.4' f... ,.
'Ilt ,.h. ., I.ter..ctl.. "... .1..,.."." 0.5.t h.'. Nortlt ......'h.. V....fe.1
O.t_ .f ''" (tMYO 'Me). ..... ,.,., n. ,.i.' .t l.h,..cU." .." u. .....
H',. ....... L... .t fM 'hlt ., ....Ie.: '...c. ,... "",.,.. _I.. t,) $..,...
..... ...~ .,...U.. O.CZ: ...t.. ..,.,. ....,.c.. Ver'h.. Def_ ., .,.. ''''\'0
.see)~ .... "'.t .." ..... HI,. W.,... l.1llI. .f .Ilt hit ., .....ce; .., 'hu.
.cot'-a,'_... fe, 40." f.d; f2, tli.H. &05.43"50..... t.r 5..... ,...: U' ....ce
S05-SZ...,.... ...... St.04 ...t: (4) "un 10$..33.4..... .., ..,.7't '..1: (5' 'hu.
SO""X'-3.-W. h,. 41.te ...t: (eJ "HC' 5Or1l".s3.... f., U.K ,..t: (7) '''.ce
SO$"02O-)8". h.. St.$4 t..f: tet "'flU SOS."'zo.w. hr 4'.11 h.,: .'1 ...u.
sorZ).".... ,.~ 4.l:.M ,... .. tit. ,.laf.. ..t.r..cfl.. w.n '... w.."'"
......... ., ... e......II.... a.,.... Sh.... eec',4'.t ,. ..1. -A 1ItE-S\8 OF
Ik.OCicS ,0-" NIO LOTS r TO IS INCl.. 8l.oac: . OF 'HE REVISED ...,. t!F ct..t:ARW.UIR
IEAOI.: ..."c. ....... .,..."." 0_'2 f..f. trltr'.. """'Ie.. V.,."cel h.... .,
1$64 (M4W IHe)~ I~U.04-(. .,.., ..U ".'hr', ....t...I." ., ... c..",'h.
., ..,..... 11'.., ..~ ..,. C..,.,.II.. .. I.,.".... Sh..,. ".'t.d".", fe,
lQ.4.Z: I..f: .....c. I........ ..1. C..f.,'h. .t ..,....", Ih..,. N:;:i(r33'K-(. t.,
~.oo h.t I. f.. POINT OF 8EC;'''',NC:.
e..,.hl., J.Zo.7'lr '1".r. f.., ., 7.:544 ,cr". ..,... ., I....
E".., ., cl.....-.: 0.00t-$ ,.., (lCSt
1_ AS ILI'.OII TH[ """ OF SlJIM:TJ
IIL.OCl< 2 LOT 1
lEGAl 1lESCRlP1ION:
LOTS · TtfiOUG;It .3 .tHO LOTS 49 TlI<<luGtt 5G. a..EARwAlER BEACH PARK. AS ItECOROED IIC
P'\.AT I09tC '0. 'AGE 4.1 or THE: PWl.,c RECORDS OF PlNELlA$ COUNTY. F"UlfUOA.
lOCElHERllI'nl:
lOTS 43 Ttft)UG:ff..... LOTS ~s THRoocH 71. N<<J .THE SOUTH 14.7$ fEET Of"" LOT $.1.
Cl.CARwATDt 8C~' 'ARI(. AS - rtEC'OROEO IN PLAT BOOK '0, PAGE 4Z or- 1ltE: Pu8L Ie
RECDlO$ OF" "'NEl..LAS aMrfTY. f1.0fUOA.
,
lOGtJiQ "'lit i
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~T..'OftnON ,OF 8EAC'H DRIW: (F .K.A. CULf BOULEVARDJ 1t1000-()f'-WAY (To BE: VACATEP
::'I;1lt ,l)ftSofl'lATJ t....,NG ,SOUTH OF llE 8A.vtoQrlT STREET RIGHT-oF-wAY AHJ NoRTH or"
SAtj:~STREETiUQfT-()f"-WAY. .' '.. ..
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EXHIBIT "C"
TO DEVELOPMENT AGREEMENT APPLICATION
CBR DEVELOPMENT I, LLC
CBR DEVELOPMENT II, LLC
Simultaneously with the submittal of this request, the applicants have submitted an
application for flexible development approval for a comprehensive intill redevelopment
project in connection with their proposal to redevelop the existing Clearwater Beach
Hotel and the majority of the block located south of the hotel as a contemporary resort
residential and hotel development as is contemplated for the "Destination Resort
District" in Beach By Design. The project, which is described in detail in the proposed
development agreement, a copy of which is attached hereto, includes (i) a 9-story
quality resort hotel with up to 260 rooms, beach club, meeting rooms and related
facilities, (ii) 15-story and 4-story condominiums containing not more than 120 units and
(iii) up to 11,000 square feet of retail development. As part of this request and the
flexible development approval request, the applicants seek the allocation of 141 resort
hotel units from the Beach by Design density pool.
Simultaneously with submittal of this development agreement application, tne applicants
are submitting the flexible development application described above, a comprehensive
sign program application and a comprehensive landscape program application. In
addition, the applicants will submit a request for vacation of the portion of Beach Drive
(f1k1a North Gulfview Drive) extending from the southerly right-of-way line of Baymont
Street south to the northerly right-of-way line of San Marco Street.
9/29/2004 9:01 AM
40900.101407
#328822 v1 - JMC/ClwrResortlEx to Dev Agt App
CLWCoverSheet
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DV A2004-00005
500 MANDALA Y AVE
Date Received: 09/29/2004
CLEARWATER BEACH RESORT
ZONING DISTRICT: T
LAND USE: RFH
ATLAS PAGE: 267A
PLANNER OF RECORD: WW
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Page 1 of 1
Wells, Wayne
From: Marlene Weber [wildthing@jmcdev.com]
Sent: Thursday, August 09, 2007 9:48 AM
To: Wells, Wayne
Subject: FW: Sand pearl Resort
Importance: High
Wayne, attached please find copies of the exact recorded documents from the Clerk of the Court website that are
part of the public record. There should be the Trip Generation Covenant and Hurricane Watch Closure
Covenant. Please let me know if these are not acceptable.
thank you,
Marlene Weber
8/1312007
.
I#: 2005242558 BK: 14400 PG: 175, 06/22/2005 at 04:02 PM,
$44.00 KEN BURKE, CLERK OF COURT PlNELLAS COUNTY, FL BY
CLKDMC6
REinING 5 PAGES
DEPUTY CLERK:
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THIS INSTRUMENT PREPAREO\BY
AND WHEN RECORDED, RET.tJ~N TO:
Robert F. Greene, Esquir.(/,>,.,j
Greene & Schermer \ \) -'
1301 Sixth Avenue W, Sl1iteAOO
Bradenton, Florida 3:4.205..
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Cov~n'~n~,Regardlng Hurricane Watch Closure and Use Restrictions
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,"'-;'->"DECLARATION OF COVENANTS AND RESTRICTIONS
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~J~~~~CLARA TION OF COVENANTS AND RESTRICTIONS Is made as of the 211' day of
June, .~.005; by THE SANDPEARL RESORT, LLC, a Florida limited liability company
(UDEVE~OI?eRft).
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,;' -"" '{t~VELOPER Is the owner of fee simple title to all of the real property described in Exhibit UN
at(a9ne~ hereto and made a part hereof (hereinafter the "Real Property"), The City of Clearwater has
!!ilT\.El.n]e'd its Comprehensive Plan to designate Clearwater Beach as a Community Redevelopment
.rDisbi9l pursuant to the Pinellas County Planning Council Rules in order to Implement the provisions
/~~f"~each by Design, a preliminary design for the revitalization of Clearwater Beach.
", "\'. "
<,....:) .J" The designation of Clearwater Beach as a Community Redevelopment District provides for
. '...._the allocation of bonus hotel units as an incentive for the development of destination quality resorts
with a full complement of resort amenities. Pursuant to the designation of Clearwater Beach as a
Community Redevelopment District, the allocation of bonus hotel units is subject to compliance with
a series of performance standards, including a requIrement that resorts developed with bonus hotel
units pursuant to the Community Redevelopment District shall be closed and all guests evacuated
from the resort within twelve (12) hours after the National Hurricane Center posts a hurricane watch
that includes Clearwater Beach. The purpose of the evacuation of the Real Property within twelve
(12) hours of the Issuance of a hurricane watch Is to ensure that the Real Property 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 of Clearwater has granted, by City Council Resolution 05-04, passed and approved
on January 20, 2005, DEVELOPER'S application for an allocation of bonus hotel units pursuant to
the provisions of the designation of Clearwater Beach as a Community Redevelopment District
subject to compliance with the requirements of the designation of Clearwater Beach as a
Community Redevelopment District. DEVELOPER desires for itself and its successors and assigns,
as owners to establish certain rights, duties, obligations and responsibilities with respect to the use
and operation of the Real Property in accordance ~ith the terms and conditions of the allocation of
bonus hotel units to Clearwater and the designation of Clearwater Beach as a Community
Redevelopment District, which rights. duties, obliijstlons and responsibilities shall be binding on any
and all successors and assigns and will run wittl'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 bonus resort units to
DEVELOPER, and other good and valuable consideration, the sufficiency of which is hereby
acknowledged, DEVELOPER hereby declares, covenants and agrees as follows:
Page 1
p.'jmo\llondpll_lCl'R....,1lI ~'llCR_WolllllD-""
PlNEL~ COUNTY FL OFF. REC.4It 14400
PG 176
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Benefit and Enhlrbement. These covenants and restrictions are made for the benefit
of DEVELOei;~,arid its successors and assigns, and shall be enforceable by it and
also for th'~ ;b.~n~fIt of the residents of the City of Clearwater, Florida, and shall be
enforceable..,on' behalf of the said residents by the CIty Council of the City of
Clearw.ater:
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Covenant,6f Develooment. Use. and Ooeration. DEVELOPER hereby covenants
"" ~
a.!1d, sgr.ees to the development, use, and operation of the Real Property in
~OQ~~fmce with the provisions of this Declaration.
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{i?~ ) Use. The use of the resort on the Real Property is restricted as follows:
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1.
2.
2.1.1
A minimum of two hundred (200) units shall be made available to
transient guests for no fewer than three hundred thirty (330) days In
any calendar year, subject to force majeure events making such
room unavailable for occupancy, must be licensed as a public
lodging establishment and classified as a hotel, and must be
operated by a single licensed operator of the hotel who shall meet
the requirements as to operating standards as set forth in Exhibit 6--1
to Development Agreement between the City of Clearwater and
Developer dated January 26,2005.
2.1.2 All other hotel units shall be licensed as a public lodging
establishment, classified as a hotel or resort condominium with
occupancy limited to sta~ of thirty (30) days or less.
2.1.3 No hotel unit shall be used as a primary or permanent residence.
2.1.4 As used herein, the terms "transient occupancy,. "public lodging
establishment," "hotel," "resort condominium,. and "operator" shall
have the meanings given to such terms in Chapter 509, Part I,
Florlda Statutes (2004).
2.2 Closure of Improvements and Evacuation. The improvements developed on
the Real Property shall be promptly closed upon the issuance of a hurricane
watch by the National Hunicane Center which hurricane watch Includes
ClearWater Beach and all guests, visitors, and employees, other than
emergency and security personnel required to protect the improvements,
shall be evacuated from the Real Property within twelve (12) hours of the
Issuance of said hurricane watch. In the event that the National Hurricane
Center shall modify the terminology employed to warn of the approach of
hurricane force winds, the closure and evacuation provisions of this
Declaration shall be governed by the level of wamlng employed by the
National hurricane Center which precedes the issuance of a forecast of
probable landfall In order to ensure that the guests, visitors, and employees
will be evacuated substantially In advance of the issuance of a forecast of
probable landfall.
Page 2
~'l-"'rI'clIa'Cly__'OCR__llIId__
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PlNELLAS COUNTY FL OFF. REC. BK 14400 PG 177
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Effectiye D~t~;::~hi~s Declaration shall become effective immediately upon its
recordIng. \ "'-..l I
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Goveminb (~~. This Declaration shall be construed In accordance with and
govemed'by.th'e laws of the State of Florida.
Reco'rdirll:i> This Declaration shall be recorded in the chain of title of the Real
P~o~.ecty)'r11th the Clerk of the Courts of Plnellas County, Florida.
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Attorneys Fees. DEVELOPER shall reimburse the City of Clearwater for any
<"ljl~ReAses, Including attorneys fees, which are Incurred by the City of Clearwater in
( (the~vent that the City determines that it Is necessary and appropriate to seek judicial
/'~,;::~~forcem~nt of these Declarations and the City obtains relief, whether by agreement
/ '; ~"" "9f the parties or through order of the Court,
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/7:t...... ~..., Severabilitv. If any provisions, or part thereof, ofthfs Declaration orthe application of
~: /.// ..j this Declaration to any person or circumstance will be or Is declared to any extent to
r~:;., ";. be invalid or unenforceable, the remainder of this Declaration, or the application of
. ,.....
( {"\ I. I 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
,I-~' ....\. enforceable to the fullest extent permitted by law.
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4.
5.
6,
BALANCE OF PAGE INTENTIONALLY lEFT BLANK
SIGNATURE PAGE FOLLOWS
Page 3
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.
PlNELLAS COUNTY FL OFF. REC. BK 14400 PG 178
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IN WITNESS WHER~06\ THE SANDPEARL RESORT, LLC, has caused this Declaration of
Covenants and Restricti~n:~j~~be' executed this 21s1 day of June, 2005.
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Signed and sealed deliveted.j
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S1ME'OF FLORIDA
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..... GQUNTv OF PJNELLAS
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/'..1 } ~ The foregoing Instrument was acknowledged before me this 2111 day of June, 2005, by J.
\"<:Mlchael Cheezem, as CEO of JMC Communities of Clearwater V, Inc., a Florida corporation, the
General Partner of CBR Communities I, Ltd., a Florida limited partnership, the Managing Member of
THE SAND PEARL RESORT, LLC, a Florida limited liability company, who Is fIl'1S8rsonally known to
me or l:J has produced a Florida driver's license or 0 as
identification.
THE SANDPEARL RESORT, LLC,
a Florida limited liability company
By:
CBR Communities I, Ltd.,
a Florida limited partnership,
Managing Member
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NOTARY PUBLIC
Printed Name:
Commission No.
My Commission expires:
Page 4
,:'j/II<ISInlIptI.'CIY RoaIldIll Dacum....'OCR _no W_l*laan.dOC
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PINELLAS COUNTY FL OFF. REC. BK 14400 PG 179
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SOUTH BLOCK ....~;\...._..1
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Lots 1 - 13 and 49 - 56, CleafWater Beach Park, as per plat thereof recorded In Plat Book 10, Page 42, of the
Public Records of Plnellas County, Florida.
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Lots 43 through 48, ~~lS ~5,'Vi'rough 71, and the South 14.75 feet of Lot 64, CLEARWATER BEACH PARK,
as recorded in Plat ,~~k .~o; Page 42, of the Public Records of Pinellas County, Florida.
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NORTH BLOCK('......\ ;
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PARCEL 1: ((J (,.....
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THAT PA,R1......0f(rRACT A OF A RE-SUBDIVISION OF BLOCK 10 AND 11, AND LOTS 2 TO 15,
INCLUSIVl;lJJbGCK 9. OF THE REVISED MAP OF CLEARWATER BEACH, AS RECORDED IN PLAT
BOOK .1~1' PAGE 96, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA, DESCRIBED AS
FOLLOWS;"")
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BSG)~~:r;irHE SOUTHEAST CORNER OF THE SAJD TRACT AAS SHOWN AS 3.68 ACRES, TO THE
PCi;lINTiOF BEGINNING, BEING A POINT AT THE INTERSECTION OF THE NORTH LINE OF BAYMONT
snu:~, AS SAID BAYMONT STREET IS SHOWN ON SAJD RE-SUBDIVISION OF BLOCKS 10 AND 11
/-ANo..~bTS 2 TO 15, INCLUSIVE, BLOCK 9 OF THE REVISED MAP OF CLEARWATER BEACH, WITH
,..\. THE-WESTERLY LINE OF MANDALA Y ROAD, AND RUN THESE N 20D 45'00" E, 182.23 FEET; THENCE N
(.. "'(>1.D';44'OO" E, 110.51 FEET TO THE CENTERLINE OF AMBLER STREET, SAID AMBLER STREET IS
/.......\SHOWN AND DEDICATED AS A PUBLIC STREET IN THE REVISED MAP OF CLEARWATER BEACH, AS
". ..~'"''.JiECORDED IN PLAT BOOK 11, PAGE 5, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA;
"THENCE WEST ALONG THE CENTERLINE OF SAID AMBLER STREET 420.00 FEET, MORE OR LESS,
TO THE WATER OF THE GULF OF MEXICO; THENCE IN A SOUTHERLY DIRECTION ON A
MEANDERING LINE ALONG THE WATERS OF THE GULF OF MEXICO, 321.00 FEET, MORE OR LESS,
TO THE CENTERLINE OF SAID BAYMONT STREET; THENCE EAST 385.00 FEET, MORE OR LESS,
ALONG SAID CENTERLINE OF BAYMONT STREET TO A POINT 40.00 FEET SOUTH OF THE POINT OF
BEGINNING; THENCE NORTH 40.00 FEET TO THE POINT OF BEGINNING.
EXHIBIT "A"
PARCEL 2:
THE NORTH 20.00 FEET OF VACATED AMBLER STREET LYING WEST OF THE EAST LINE OF LOT 9,
PROJECTED SOUTH AS SHOWN ON THE PLAT OF MILLER'S REPLAT, AS RECORDED IN PLAT BOOK
26, PAGE 17, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA.
PARCEL 3:
LOT 1 AND 10 AND THE SOUTH 80.00 FEET OF LOT 9 OF MILLER'S REPLAT. AS RECORDED IN
PLAT BOOK 26, PAGE 17, OF THE PUBLIC RECORDS OF PINELLAS COUNlY, FLORIDA.
LESS AND EXCEPT RIGHT OF WAY FOR BAYMONT STREET DEDICATED TO CITY OF
CLEARWATER ON PLAT OF SANDPEARL, A SUBDIVISION, RECORDED IN PLAT BOOK 129, Page
89, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA
Page 5
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Iff: 2005242559 BK: 14400 PG: 180/ 06/22/2005 at 04:02 PM/
$44.00 KEN BURKE, CLERK OF COURT PlNELLAS COUNTY/ FL BY
CLKDMC6
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RECORDING 5 PAGES
DEPUTY CLERK:
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THIS INSTRUMENT PREP~~Ep\BY
AND WHEN RECORDED, RET.URN TO:
Robert F. Greene, Esqui~:~;\'_./
Greene & Schermer \ \.J I
1301 Sixth Avenue W, S~lte.4bo
Bradenton, Florida ~205.
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.' '.9bv.~i1'ant Regarding Trip Generation Management Program
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/".;::'..."rleCLARATION OF COVENANTS AND RESTRICTIONS
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-r:J4)$~Q~LARA TION OF COVENANTS AND RESTRICTIONS is made as of the 21 at day of
June, ~.g05I..byTHE SANDPEARL RESORT, LLC rDEVELOPER").
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'-." 'DEVELOPER is the owner of fee simple title to all of the real property described in Exhibit 1
attach~~ereto and made a part hereof (hereinafter the "Real Property"). The City of Clearwater
h~s(aMended its Comprehensive Plan to designate Clearwater Beach as a Community
~e9..eY_e{opment District pursuant to the Pinellas County Planning Council Rules in order to
rlinpternent the provisions of Beach by Design, a prel1minary design for the revitalization of
/'\.ei~fr'water Beach.
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('-..) ! ~ The designatIon of Clearwater Beach as a Community Redevelopment District provide for
. -.......the allocation of bonus resort units as an incentive for the development of destination quality resorts
with a full complement of resort amenities. Pursuant to the designation of Clearwater Beach as a
Community Redevelopment District, the allocation of bonus resort units is subject to compliance with
a series of performance standards, including a requirement that the resort hotel to be developed on
the Real Property Implements a trip generation management program to reduce the number of
vehicle trips generated by the used and operation of the Real Property.
The City of Clearwater has granted, by City Council Resolution 0-04 passed and approved
on January 20, 2005, DEVELOPER's application for an allocation of bonus resort units pursuant to
the provisions of the designation of Clearwater Beach as a Community Redevelopment District and
subject to compliance with the requirements of the designation of Clearwater Beach as a
Community Redevelopment District. DEVELOPER desires for itself, and Its successors and
assigns, as owners 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 bonus resort units to Clearwater and the designation of Clearwater Beach as a
Community Redevelopment District, 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 PlOperty.
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 bonus resort units to
DEVELOPER and other good and'valuable consideration, the sufficiency of which Is hereby
acknowledged, DEVELOPER hereby declares, covenants, and agrees as follows:
1. Benefit and Enforcement. These covenants and restrictions are made for the benefit
of DEVELOPER and Its successors and assigns and shall be enforceable by them
and also for the benefit of the residents of the City of Clearwater, Florida, and shall
Page 1
'~"""'C.l,R""'od_'DCRT~""""IIo.lolg"l'rogft...-
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PINELLAS COUNTY FL OFF. REC. BK 14400
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PG 181
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be enforceable,on'oehalf of the said residents exclusively by the City Council of the
City of ClearW~tef..)
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Covenant{tb I?reoare and Implement a Trip Generation Manaaement ProQram.
DEVELOPEiRl1ereby covenants and agrees to the development, use, and operation
of the, ~eal. Property In accordance with the provisions of this Declaration.
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2. V"<'T~D' Ge~eration ManaQement Proaram. .DEVELOPER shall prepare a Trip
\. ..;. .Generatlon Management Program which Includes, at a minimum, the
('<\ ;.program elements which are set out In Exhibit~, which is attached hereto
,',--;........ .-}' and Incorporated herein.
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(.~...?1/ Imolementation. DEVELOPER shall take all necessary and appropriate steps
/';":--" ': to Implement the approved Trip Generation Management Program and the
t..' (/."! ...... selected management strategies.
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~. '3/ . Effective Date. This Declaration shall become effective immediately upon its
......':':........... recording.
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2.
Governino Law. This Declaration shall be construed in accordance with and
govemed by the laws of the State of Florida.
Recordina. This Declaration shall be recorded in the chain of title of the Real
Property with the Clerk of the Court of Pinellas County, Florida.
6. Attornevs Fees. DEVELOPER shall reimburse the City of Clearwater for any
expenses, Including attorneys' fees, which are incurred by the City of Clearwater in
the event that the City detennines 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 the Court.
7, Severability. If any provision, or part hereof, 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 portlon 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.
Page 2
F~_IC""R_Id_""IDC:RT",a_n_IPn>g.....-
4
.
PINELLAS COUNTY FL OFF. REC. BK 14400
"
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PG 182
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IN WITNESS WHER,E'OF;;:rHE SANDPEARL RESORT, LLC has caused this Declaration of
Covenants and Restrictionsltc)-.b'e,bxecuted this 2111 day of June, 2005
..."'," '
Signed and sealed de1iv~~~~5')-"
In the presence of: ".....j
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RoBERT F... G[lBBNI
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Sr~iE'OF FLORIDA
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,.~.._9QUNTY OF PINELLAS
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(......) ).. The foregoing instrument was acknowledged before me this 2111 day of June. 2005, by J.
......_:.Michael Cheezem, as CEO of JMC Communities of ClearwaterV. Inc., a Florida corporation, the
General Partner of CBR Communities I, Ltd., a Florida limited partnership)he Managing Member of
The Sand pearl Resort, LLC, a Florida limited liability company, who is s1>ersonally known to me or
IJ has produced a Florida driver's license or IJ as identification.
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if n'" ......,. "" N MY PUBLIC
~ ...~ ~ \2,2n.:'~.. ~ Printed Name:
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s-a\ ,DD12S604 !~~ My Commission expires:
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THE SANDPEARL RESORT, LLC.
a Florida limited liability company
By:
CBR Communities I, Ltd.,
a Florida limited partnership,
Managing Member
By: JMC Communities of Clearwater V, Inc.
a Florid oration, General Partner
Page 3
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PlNELLAS COUNTY FL OFF. REC. BK 14400 PG 183
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THAT PART OF TRACT A-OP'A RE..sUBDIVISIONOF BLOCK 10AND 11,AND LOTS 2 TO 15,
INCLUSIVE, BLOCK 9, OF THE REVISED MAP OF CLEARWATER BEACH, AS RECORDED IN
PLAT BOOK 19, PAt3E..g~, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA,
DESCRIBED AS F0L1~:9WS:
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BEGIN AT THE)3QI.rtHEAST CORNER OF THE SAID TRACT A AS SHOWN AS 3.68 ACRES,
TO THE POIN'f~f:aEGINNING, BEING A POINT AT THE INTERSECTION OF THE NORTH
LINE OF B~'r{MO(\tr STREET, AS SAID BAYMONT STREET IS SHOWN ON SAID RE-
SUBDIVIS,I0~~'Q.F'BLOCKS 10 AND 11 AND LOTS 2 TO 15, INCLUSIVE, BLOCK 9 OF THE
REVISED....MA'P.OF CLEARWATER BEACH, WITH THE WESTERLY LINE OF MANDALAY
ROAD, ~N6~RtiN THESE N 20D45'OO" E, 182.23 FEET; THENCE N 01D44'OO" E, 110.51 FEETTO
THE Gl;tf(.~~L1NE OF AMBLER STREET, SAID AMBLER STREET IS SHOWN AND DEDICATED
AS A:;PW.BI.:JC STREET IN THE REVISED MAP OF CLEARWATER BEACH, AS RECORDED IN
P4\q::'~90K 11, PAGE 5, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA;
TI:t~N~EWEST ALONG THE CENTERLINE OF SAID AMBLER STREET 420.00 FEET, MORE
P8,J.:E;SS, TO THE WATER OF THE GULF OF MEXICO; THENCE IN A SOUTHERLY
,-DIRECTION ON A MEANDERING LINE ALONG THE WATERS OF THE GULF OF MEXICO,
, >
:::...32~:QO FEET, MORE OR LESS, TO THE CENTERLINE OF SAID SA YMONT STREET; THENCE
{" "'~ST 385.00 FEET, MORE OR LESS, ALONG SAID CENTERLINE OF BA YMONT STREET TO A
<>-.)PPINT 40.00 FEET SOUTH OF THE POINT OF BEGINNING; THENCE NORTH 40.00 FEET TO
',-__.:rHE POINT OF BEGINNING.
EXHIBIT 1
PARCEL 2:
THE NORTH 20.00 FEET OF VACATED AMBLER STREET LYING WEST OF THE EAST LINE OF
LOT 9. PROJECTED SOUTH AS SHOWN ON THE PLAT OF MILLER'S REPLAT, AS RECORDED
IN PLAT BOOK 26, PAGE 17, OFTHE PUBLIC RECORDS OF PINElLAS COUNTY, FLORIDA.
PARCEL 3:
LOT 1 AND 10 AND 1HE SOU1H 80.00 FEET OF lOT 9 OF MILLER'S REPLAT, AS
RECORDED IN PLATSOOK26, PAGE 17, OFlHE PUBLIC RECORDS OF PINELLAS
COUNTY, FLORIDA. .
LESS AND EXCEPT RIGHT OF WAY FOR BA YMONT STREET DEDICATED TO CITY OF
CLEARWATER ON PLAT OF SANDPEARL, A SUBDIVISION, RECORDED IN PLAT BOOK
129, Page 89, OF THE PUBLIC RECORDS OF PINELLAS COUN1Y, FLORIDA.
Page 4
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PlNELLAS COUNTY FL OFF. REC. BK 14400
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PG 184
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TRIP GENERATION MA~~.~MENT PROGRAM
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1. Prior to Issu~l).ce 9! the Certificate of Occupancy for the Project, the DEVELOPER shall
Implement a 'T.frmsportation System Management Plan. This Plan shall establish practices,
proceduref:-ani;lJ~bsts/fees for servIces to reduce the number of trips to and from the site.
Exampl~~ b.f'in,ethods, which may be considered are:
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a'l':;- .:~€t1est shuttle services/airport
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i~:.:~.,-,,/Employee shuttle
/~~.'" Non-motorized modes for guests
l (,'s: ...../ Fixed route transit
/).:~-..,f:'~ Taxis/demand responsive transit
< ~/J.'''' g: Non-motorized modes for employees
/--.. :;;;, ') h. Staggered working hours
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l-'~..,..;...:rhe plan will address the trip characteristics of resort occupancy, compare and contrast the
,.-'":"::'" ''-~ generation and reduction methods against non transient units and create a supporting trip
I~'" ......:'..; utilization projection for the Beach bv DesiQn transit proposal from both hotel visitors and
,.:'-.....~) garage patrons. The plan will apply a best methods approach. City and County
(, ......J; transportation programs may also generate additional methods based on special studies or
........j intergovernmental program funding (County-wide Gulfview Trolley System).
2. Prior to issuance of a Certificate of Occupancy for the Project, the DEVELOPER shall submit
a Hurricane Evacuation Plan to the City. This Plan shall establish practices and procedures
to be Implemented when a hurricane watch is established for Clearwater. These practices
and procedures will lead to evacuation of the Project when a hurricane watch is issued for
Clearwater.
Page 5
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CITY OF CLEARWATER
PIANNING DEPARTMENT
POST OFFICE Box 4748, CLEARWATER, FLORIDA 33758-4748
MUNICIPAL SERVICES BUILDING, 100 SOUTH MYRTLE AVENUE, CLEARWATER, FLORIDA 33756
TELEPHONE (727) 562-4567 FAX (727) 562-4576
LONG RANGE PlANNING
DEVELOPMENT REvIEW
January 21,2005
E. D. Armstrong III, Esquire
Johnson, Pope, Bokor, Ruppel & Bums, LLP
P.O. Box 1368
Clearwater, FL 33757-1368
RE: Development Order - DV A2004-00005
470,484 and 500 Mandalay Avenue and 470,489,490 and 495 Beach Drive
Dear Mr. Armstrong:
The City Council at their meeting on January 20, 2005, APPROVED the Development
Agreement between CBR Development I, LLC and CBR Development II, LLC and the City of
Clearwater for the sites at 470, 484 and 500 Mandalay Avenue and 470,489,490 and 495 Beach
Drive.
If you have any questions, please do not hesitate to call Wayne M. Wells, AICP, Planner III, at
727-562-4504. You can access zoning information for parcels within the City through our
website: www.myclearwater.com. *Make Us Your Favorite!
Sincerely,
~
Cynthia H. Tarapani, AICP
Planning Director
S:\Planning DepartmentlC D BIDevelopment Agreements\DVA2004-00005 Mandalay 500 Sandpearl Resort (1) - ApprovedlMandalay 500 CC
Decision Letter.doc
BRIAN]. AUNGST, MAYOR-COMMISSIONER
HoYf HAMILTON, VICE MAYOR-COMMISSIONER WHITNEY GRAY, COMMISSIO!\:ER
FRANK HIBBARD, COMMISSIONER * BILL]ONSON, COMMISSIONER
"EQUAL EMPLOYMENT AND AFFIRMATIVE ACTION EMPLOYER"
.
.
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CITY OF CLEARWATER
LONG RANGE PLANNING
DEVELOPMENT REviEW
PlANNING DEPARTMENT
POST OFFICE Box 4748, CLEARWATER, FLORIDA 33758-4748
MUNICIPAL SERVICES BUILDING, 100 SmITH MYRTI.E AVENUE, CLEARWATER, FLORIDA 33756
TELEPHONE (727) 562-4567 FAX (727) 562-4576
December 16, 2004
E. D. Armstrong III, Esquire
Johnson, Pope, Bokor, Ruppel & Bums, LLP
P.O. Box 1368
Clearwater, FL 33757-1368
RE: DV A2004-00005, 470, 484 and 500 Mandalay Avenue and 470,489,490 and 495 Beach
Drive
Dear Mr. Armstrong:
The Community Development Board (CDB) at their meeting on December 14, 2004, voted to
recommend to the City Council APPROVAL of a Development Agreement between CBR
Development I, LLC and CBR Development II, LLC and the City of Clearwater for the sites at
470,484 and 500 Mandalay Avenue and 470, 489, 490 and 495 Beach Drive.
If you have any questions, please do not hesitate to call Wayne M. Wells, AICP, Planner ill, at
727-562-4504. You can access zoning information for parcels within the City through our
website: www.myc1earwater.com. *Make Us Your Favorite!
Cynthia H. Tarapani, AICP
Planning Director
S:\Plal1l1ing DepartmentlC D BIFLEX (FLD)IPending cases I Up for the next CDBIMandalay 500 Sandpearl Resort Development Agreement (T)
J,20.05 CC - WW\Mandalay 500 CDB Decision Letter,doc
BRIAN J AUNGST, MAYOR-COMMISSIONER
HoYf HAMILTON, VICE MAYOR-COMMISSIONER WHITNEY GRAY, COMMISSIOt\ER
FRANK HIBBARD, COMMISSIONER * BILL]ONSON, COMMISSIOt\ER
"EQUAL EMPLOYMENT AND AFFIRMATIVE ACTION EMPLOYER"
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Wells, Wayne
From:
Sent:
To:
Subject:
Wells, Wayne
Monday, August 13, 20074:47 PM
Bertels, Paul
Sandpearl Covenant
Paul-
Attached is the recorded Covenant regarding the trip generation management program for the Sandpearl Resort (hotel).
This is different than what I have sent to you for review.
Wayne
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Recorded
enant regarding
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Wells, Wayne
From:
Sent:
To:
Subject:
Wells, Wayne
Monday, August 13, 2007 4:45 PM
Vola, Bill
Sandpearl Covenant
BiII-
Attached is the recorded Covenant regarding hurricane watch closure of the Sandpearl Resort (hotel).
I forwarded your comments on the hurricane plan to John Hobach with JMC. Thanks.
Wayne
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Recorded
mant regarding
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Wells, Wayne
From:
Sent:
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Cc:
Subject:
Delk, Michael
Tuesday, November 28, 2006 4:37 PM
Horne, William; Akin, Pam
Morris, William D.; Irwin, Rod; Brumback, Garry; Wells, Wayne
Boat Slips
I talked to Wayne about this matter and he indicated to me he has had no discussions on the Sand Pearl dock matter of
late. His last involvement on this issue was at the time of the development approval by City Council on January 20, 2005.
The matter came up this morning during a discussion of the downtown boat slips. As I suggested this morning, he
believes the matter must be a Levell! (FLD) approval by the CDB. No application for development approval has been
made at this time.
Regarding the downtown boat slips, he has indicated FLD approval for variation in dock width and setbacks may need to
be requested as part of the future application. We do not anticipate these being unsupportable issues under flexible
criteria. We understand that the slips are proposed to extend out adjacent to the channel but were not aware of there
being an issue with it comprising an excessive portion of the waterway width. Clearwater Harbor is substantially greater
width.
Michael Delk, AICP
Planning Director
City of Clearwater, FL
727-562-4561
myclearwater .com
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Tracking Number: 1,072 Actual Date: 01/20/2005 ~ ~ -} J{lrrVY
Subiect I Recommendation: ~tJ, '1)::lf.
Approve a development agreement between CBR Development I, LLC and CBR Development II,
LLC and the City of Clearwater and approve Resolution No. 05-04.
City Council
~9~nda Cover Me~~Ea~dum ,~
Summary: ~
The subject site is 9.77 total acres (hotel si"~res 3.6 cres zoned T District; 3.67 acres
zoned OS/R District]; residential/retail site ~e~). subject site is located on the west
side of Mandalay Avenue between San Marco and Ambler Streets (470, 484 and 500 Mandalay
Avenue and 470, 489, 490 and 495 Beach Drive). The Community Development Board, at their
meeting on December 14, 2004, recommended approval of the development agreement. See
attached memorandum for additional information.
Originating: Planning
Section Administrative public hearings
Category: Code Amendments, Ordinances and Resolutions
Number of Hard Copies attached: 0
Public Hearing: Yes
Advertised Dates: 01/20/2005
Financial Information:
Review ADDroval
Gina Clavton
Pam Akin
12-30-2004 11:44:40
01-14-2005 10:22:55
01-03-2005 10:38:36
01-14-2005 09:33:44
01-03-2005 14:25:52
01-14-2005 10:03:06
Cvndie Goudeau
Gina C1avton
Garrv Brumback
Bill Horne
,
CDB Meeting Date:
Case Number:
Agenda Item:
Owners:
Applicant:
Representative:
Addresses:
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~14-1?- ~~
q.-.t)
December 14,2004
DV A2004-00005 (Related to FLD2004-09068/PLT2004-00016/SGN2004-
09020)
F1 (Related to E5)
Hunter Hotel Company and Mandalay Investments, LLC
CBR Development 1, LLC
E. D. Armstrong III, Esq., Johnson, Pope, Bokor, Ruppel & Bums, LLP
470, 484 and 500 Mandalay Avenue and 470, 489, 490 and 495 Beach
Drive
CITY OF CLEARWATER
PLANNING DEPARTMENT
STAFF REPORT
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GENERAL INFORMATION:
REQUEST:
EXISTING ZONING/
LAND USE:
PROPERTY SIZE:
PROPERTY USE:
ADJACENT ZONING/
LAND USES:
Review of, and recommendation to the City Council, of a
Development Agreement between CBR Development I, LLC and
CBR Development II, LLC and the City of Clearwater
Tourist (T) and Open Space/Recreation (OSR) Districts; Resort
Facilities High (RFH) and Recreation/Open Space (RlOS)
Categories / ~./~ ,bu,id~ ,
9.77 total acres (hotel site 7.36 acres [3.69 acres zoned T District;
3.67 acres zoned OS/R District]; residential/retail site 2.41 acres)
Current Use: Clearwater Beach Hotel and retail sales
Proposed Use: Mixed use (260 overnight accommodation units at
72.22 rooms/acre on hotel portion of site and a height of 100 feet,
120 attached dwellings at 50 units/acre on residential/retail portion
of site and a height of 150 feet and 11,000 square feet of retail sales
and services at a FAR of 0.1 05 on residential/retail portion of site)
North: Tourist and Open Space/Recreation Districts; Restaurant and
overnight accommodation uses
East: High Density Residential and Tourist Districts; Attached
dwellings and retail sales and services
South: Tourist District; Retail sales and services and attached
dwellings
West: Open Space/Recreation and Preservation Districts; Gulf of
Mexico
Staff Report - Community Development Board - December 14,2004 - Case DV A2004-00005
Page I of 5
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CHARACTER OF THE
IMMEDIATE VICINITY: Attached dwellings, tourist-type retail sales and service uses,
restaurants and overnight accommodation uses dominate the
surrounding area.
ANAL YSIS:
Site Location and Existing Conditions: The 9.77 total acres (hotel site 7.36 acres [3.69 acres
zoned T District; 3.67 acres zoned OS/R District]; residential site 2.41 acres) is located on the west
side of Mandalay Avenue between San Marco and Ambler Streets, It is located along a highly
developed area within Clearwater Beach and has frontage along the Gulf of Mexico. The site is
located within the Destination Resort District of Beach By Design, which represents the primary
opportunity for near-term redevelopment on Clearwater Beach because of the relative strength of
the Hilton and the Clearwater Beach Hotel and the opportunity for beachfront resort development
with direct beach access. The preferred form of redevelopment for this area is mixed use with
resort residential and hospitality uses fronting on the Beach and retail, restaurant and residential
uses fronting on North Mandalay Avenue.
The overall site is currently developed with a total of 157 overnight accommodation rooms and
approximately 16,390 square feet of commercial space fronting on Mandalay Avenue. While there
are smaller two- to three-story overnight accommodation buildings along Beach Drive, the bulk of
the overnight accommodation rooms are north of Baymont Street in the Clearwater Beach Hotel.
Both surface parking and garage parking under building are provided for the hotel. All existing
improvements (buildings, pavement, walkways and decks) will be removed as part of the site's
redevelopment, with the exception of portions of buildings north ofBaymont Street proposed to be
reused as part of the proposed hotel.
In 2003, the Community Development Board (CDB) approved a Termination of Status of
Nonconformity with two conditions for the existing Clearwater Beach Hotel relating to density
(137 rooms, where only 131 is allowed) and parking (98 existing spaces, where 137 spaces is
required), for the purpose of releasing a Unity of Title to redevelop the property south of Baymont
Street (FLD2003-06026, approved August 19, 2003). Also in 2004, the CDB approved Flexible
Development and Comprehensive Sign Program applications with one condition for the
Clearwater Beach Hotel to be able to retain their existing signage (FLD2003-12068/SGN2003-
10020, approved January 20, 2004). All existing signage will be removed as part of the site's
redevelopment.
The property to the south has been redeveloped into two high-rise attached dwellings (Mandalay
Beach Club). Property to the south along Mandalay Avenue is developed with tourist commercial
uses. Property to the east, south of Baymont Street, is also developed with tourist commercial
uses. North of Baymont Street, the Belle Harbor attached dwellings development with two high-
rise towers and townhomes is still under construction. Property to the north is developed with a
restaurant and overnight accommodation uses, with commercial uses along Mandalay A venue.
The beach and Gulf of Mexico is to the west of the subj ect property,
Staff Report ~ Community Development Board - December 14,2004 - Case DV A2004-00005
Page 2 of 5
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Proposal: The proposal includes a companion Flexible Development, Preliminary Plat and
Comprehensive Sign Program applications to permit a mixed use of 260 overnight accommodation
units (at a density of 72.22 rooms/acre on the hotel portion of site and a height of 100 feet), 120
attached dwellings (at a density of 50 units/acre on residential/retail portion of site and a height of
150 feet) and 11,000 square feet of retail sales and services (at a FAR of 0.1 05 on the
residential/retail portion of site),
Development Agreement Proposal: The proposed Development Agreement sets forth
public/private obligations. The City recognizes the economic and aesthetic benefits that will result
from private development. The applicant recognizes the benefit of public improvements that
directly affect the marketability of the project and the character of the general area surrounding the
project. The Development Agreement sets forth the following main provisions:
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The hotel portion of the project will consist of a minimum of 240 and a maximum of 260
rooms. The proposal includes the allocation from the Beachoy Design density pool of 141 ~
rooms/units (Section 3.01.3). Any unused density pool rooms/units for the hotel will be
returned to the City's density pool as described in Beach by Design. Length of
stay/occupancy of the hotel rooms will not exceed 30 days (Section 2.03.4).
The residential portion of the project will consist of no more than 120 dwelling units
(Section 2.03,1). -
The commercial/retail portion of the project will consist of a maximum of 11,000 squill'e
feet of floor area (including no more than 3,000 square feet of restaurant floor area)
(Section 2.03.1).
The provision of a Beach Club qf 300 memberships, including a maximum of 160 outside
memberships (Section 2.03.1).
The provision of a minimum of 431 parking spaces (Section 2.03.1).
The developer will make certain im rovements, at their expense, to Mandalay Avenue and
Baymont, Ambler and San arco Streets, including the relocatio~ jJverheiJ gtilities to
underground (Section 5,03 and Exhibits H, I , J and K). ",hi- ~ (J~.{ 0
The developer will convey to the City the area on the westernmost portion of the hotel
parcel, which is part of the beach, This conveyance is as additional consideration for the
allocation of the hotel units from the density pool under Beach by Design. The City will
have the exclusive right to grant concessions on this "beach property" (Section 5.03.8).
The developer owns a portion of the hotel parcel between the area to be developed with the
resort hotel and the "beach property" referred to the "upland property." The general public
will have continued rights to use this area. The developer may operate concessions related
to the use of the beach, including the sale, rental or use of equipment, products and services
common to the beach, except jet-ski or para-sail operations (Section 5.03.8).
The City agrees to allow the construction of a maximum of 57 boat ~ips on City-owned
property east of the hotel parccland north ot the Helle Harbor proJect. The developer will
construct and maintain the boat slips at their expense, The City will control 19 of the slips,
while the developer will have the ability to lease 38 slips to owners, tenants and guests of
the project (Section 5.03.10 and Exhibit N). The processing of a Flexible Development
application for the commercial dock to the Community Development Board is required.
Prior to the issuance of the final Certificate of Occupancy, the developer will implement a
transportation system management plan, including guest shuttles to the airport and
Staff Report - Community Development Board - December 14, 2004 - Case DV A2004-00005
Page 3 of5
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actIvItIes, employee shuttles and other measures to minimize vehicular trips associated
with the hotel (Section 2.03.5.c and Exhibit E).
. Prior to the issuance of the final Certificate of Occupancy, the developer will submit a
hurricane evacuation plan to the City, establishing the practices and procedures to be
implemented leading to the evacuation of the hotel in the event of the declaration of a
hurricane watch (Section 2.03.5.d and Exhibit F).
. The Development Agreement expires ten years following the effective date (4ate fll"fHvved
~l) (Section 18.18.1).
>i' · Commencement of construction of the Hotel Phase of the proiect is to occur within one
.....
year of the approval of this Development Agreement (except that the time period is tolled
r:r- dUrIng the review period of building permits) or a maximUll}. of two years from the date this
/1u 1,6 ~O Development Agreement is approved. T~ RpsidentIal TowPT Phase of the plOject will
.J:JV'" mmmenC8 construction on or before ths Hotel eomIDcnGGnll::;;l.it Jt::i1J1ine. The
Residential/Retail Tower Phase of the project will commence construction within two
ears of the after the Hotel commencemenWe51dline. ,~d/Af.wt?t~ ~
Ir~~ -;Jffl~/~tB !.!!!:'Jrvvvv7' ~~
The Community Development Board has been provided with the most recently negotiated
Development Agreement dated November 18, 2004.
The City Council may enter into Development Agreements to encourage a stronger commitment
on comprehensive and capital facilities planning, ensure the provision of adequate public facilities
for development, encourage the efficient use of resources, and reduce the economic cost of
development. The Community Development Board is required to review the proposed
Development Agreement and make a recommendation to the City Council.
SUMMARY AND RECOMMENDATION:
The Development Review Committee reviewed the application and supporting materials on
November 12, 2004. The Planning Department recommends APPROVAL, and recommendation
to the City Council, of a Development Agreement between CBR Development I, LLC and CBR
Development II, LLC and the City of Clearwater for the sites at 470, 484 and 500 Mandalay
Avenue and 470,489,490 and 495 Beach Drive, with the following bases:
Bases for Approval:
1. The Development Agreement is consistent with and furthers the goals, policies and objectives
of the Comprehensive Plan.
2. The Development Agreement complies with the standards and criteria of Section 4-606.
3. The Development Agreement implements and formalizes the requirements for the construction
of site and off-site improvements under the related site plan proposal (FLD2004-09068).
4. The amended Development Agreement is in compliance with Beach by Design.
Prepared by: Planning Department Staff:
Staff Report - Community Development Board - December 14, 2004 - Case DV A2004-00005
Page 4 of 5
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A TT ACHMENTS:
Location Map
Aerial Photograph of Site and Vicinity
Zoning Atlas Map
Surrounding Existing Uses Map
Photographs of Site and Vicinity
Application
S:IPlanning DepartmentlC D BlFLEX (FLD)\Pending cases I Up for the next CDS\Mandalay 500 Sandpearl Resort Development
Agreement (T) 12. /4.04 CDS - WW\Mandalay 500 Development Agreement Staff Reportfor /2, /4,04 CDS.doc
Staff Report - Community Development Board - December 14, 2004 - Case DV A2004-00005
Page 5 of5
CDB Meeting Date:
Case Numbers:
Agenda Item:
Owners:
Applicant:
Representative:
Addresses:
.
/ZlJIIIi o/Ifr4t%Y1t/:? ~
~ '1.#0
Decemberl4, 2004
FLD2004-09068/PLT2004-000l6/SGN2004-09020 (Related to DV A2004-
00005)
E5 (Related to Fl)
Hunter Hotel Company and Mandalay Investments, LLC
CBR Development 1, LLC
E. D. Armstrong III, Esq., Johnson, Pope, Bokor, Ruppel & Burns, LLP
470, 484 and 500 Mandalay Avenue and 470, 489, 490 and 495 Beach
Drive
CITY OF CLEARWATER,
PLANNING DEPARTMENT
STAFF REPORT
GENERAL INFORMATION:
REQUEST: (1) Flexible Development approval to permit a maximum of 253
overnight accommodation units, 119 attached dwellings and 11,000
square feet of retail sales and services as a mixed use (with increase
in density of 141 hotel rooms from .the Beach by Design density
pool), with reductions to the front (east along Mandalay Avenue)
setback (between Baymont and Ambler Streets) from 15 feet to eight
feet (to building) and from 15 feet to zero feet (to pavement and
waterfall feature), a reduction to the front (south along Baymont
Street) from 15 feet to zero feet (to pavement), a reduction to the
front (north along Ambler Street) setback from 15 feet to fi'/e feet
(to building), a reduction to the front (east along Mandalay A venue)
setback (between San Marco and Baymont Streets) from 15 feet to
zero feet (to building), a reduction to the front (south along San
Marco Street) from 15 feet to zero feet (to building), a reduction to
the side (west) setback (Coastal Construction Control Line [CCCL])
from 10 feet to zero feet (to building and pool deck) and to allow
existing and proposed improvements to remain up to 62 feet west of
the CCCL, a reduction to the side (east and north between San
Marco and Baymont Streets) from 10 feet to four feet (to building),
reductions to the side (east and north, north of Ambler Street) from
. 10 feet to one-foot (to building) and from 10 feet to one-foot (to
~~ pavement), an increase to building height from 35 feet to 95 feet (to
ru~ IJii(J roof deck) for the proposed overnight accommodation use (with an
(", 1,9..lf '/t)J additional 12 - 20 feet for decorative mansard architectural
yur .Q In'' embellishments), an increase to building height from 35 feet to 150
, feet (to roof deck) for the proposed residential building (with an
~. additional 12 - 18 feet for decorative mansard architectural
41J \ fO Staff R'port - Conununity Developm,nt Bo"d - D,c,mb" 14, 2004
Cases FLD2004-09068/PL T2004.000 16/SGN2004-09020
Page 1 of 14
f
EXISTING ZONING/
LAND USE:
PROPERTY SIZE:
PROPERTY USE:
ADJACENT ZONING/
LAND USES:
CHARACTER OF THE
IMMEDIATE VICINITY:
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embellishments), a reduction to required parking from 456 spaces to
431 spaces and deviations to allow stacked parking and buildings
-wIthm the viSibility triangles, as a Comprehensive Infill
Redevelopment Project, under the provisions of Section 2-803.C,
and to eliminate the required foundation landscaping along
Mandalay Avenue and San Marco Street, as a Comprehensive
Landscape Program, under the provisions of Section 3-1202.G; (2)
Preliminary Plat approval (PLT2004-00016) for four lots; (3)
Comprehensive Sign Program approval, under the provisions of
Section 3-1807 (SGN2004-09020) ;and (4) the vacation of Beach
Drive (North Gulfview Boulevard) between San Marco and
Baymont Streets.
Tourist (T) and Open Space/Recreation (OSR) Districts; Resort
Facilities High (RFH) and Recreation/Open Space (RIDS)
Categories
~./ at!. ,b",'}pI~
9,77 total acresiotel site 7.36 acres [3.69 acres zoned T District;
3.67 acres zoned OS/R District]; residential/retail site 2.41 acres)
Current Use: Clearwater Beach Hotel and retail sales
Proposed Use: Mixed use (253 overnight accommodation units at
68.56 rooms/acre on hotel portion of site and a height of 100 feet,
119 attached dwellings at 49.37 units/acre on residential/retail
portion of site and a height of 150 feet and 11,000 square feet of
retail sales and services at aFAR of 0.105 on residential/retail
portion of site)
North: Tourist and Open Space/Recreation Districts; Restaurant and
overnight accommodation uses
East: High Density Residential and Tourist Districts; Attached
dwellings and retail sales and services
South: Tourist District; Retail sales and services and attached
dwellings
West: Open Space/Recreation and Preservation Districts; Gulf of
Mexico
Attached dwellings, tourist-type retail sales and service uses,
restaurants and overnight accommodation uses dominate the
surrounding area.
Staff Report - Community Development Board - December 14,2004
Cases FLD2004-09068/PL T2004-000 16/SGN2004-09020
Page 2 of 14
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ANALYSIS:
Site Location and Existing Conditions: The 9.77 total acres (hotel site 7.36 acres [3.69 acres
zoned T District; 3.67 acres zoned OS/R District]; residential site 2.41 acres) is located on the west
side of Mandalay Avenue between San Marco and Ambler Streets, It is located along a highly
developed area within Clearwater Beach and has frontage along the Gulf of Mexico. The site is
located within the Destination Resort District of Beach By Design, which represents the primary
opportunity for near-term redevelopment on Clearwater Beach because of the relative strength of
the Hilton and the Clearwater Beach Hotel and the opportunity for beachfront resort development
with direct beach access. The preferred form of redevelopment for this area is mixed use with
resort residential and hospitality uses fronting on the Beach and retail, restaurant and residential
uses fronting on Mandalay Avenue.
The. overall site is currently developed with a total of 157 overnight accommodation rooms and
approximately 16,390 ~quare feet of commercial space fronting on Mandalay Avenue. While there
are smaller two- to three-story overnight accommodation buildings along Beach Drive, the bulk of
the overnight accommodation rooms are north of Baymont Street in the Clearwater Beach Hotel.
Both surface parking and garage parking under building are provided for the hotel. All existing
improvements (buildings, pavement, walkways and decks) will be removed as part of the site's
redevelopment, with the exception of portions of buildings north of Baymont Street proposed to be
reused as part of the proposed hotel.
In 2003, the Community Development Board (CDB) approved a Termination of Status of
Nonconformity with two conditions for the existing Clearwater Beach Hotel relating to density
(137 rooms, where only 131 is allowed) and parking (98 existing spaces, where 137 spaces is
required), for the purpos~ of releasing a Unity of Title to redevelop the property south of Baymont
Street (FLD2003-06026, approved August 19, 2003). Also in 2004, the CDB approved Flexible
Development and Comprehensive Sign Program applications with one condition for the
Clearwater Beach Hotel to be able to retain their existing signage (FLD2003-12068/SGN2003-
10020, approved January 20, 2004). All existing signage will be removed as part of the site's
redevelopment.
The property to the south has been redeveloped into two high-rise attached dwellings (Mandalay
Beach Club). Property to the south along Mandalay Avenue is developed with tourist commercial
uses. Property to the east, south of Baymont Street, is also developed with tourist commercial
uses. North of Baymont Street, the Belle Harbor attached dwellings development with two high-
rise towers and townhomes is still under construction. Property to the north is developed with a
restaurant and overnight accommodation uses, with commercial uses along Mandalay Avenue.
The beach and Gulf of Mexico is to the west of the subject property.
Proposal: The proposal includes a mixed use of a 253 overnight accommodation units (at a
density of 68.56 rooms/acre on the hotel portion of site and a height of 100 feet), 119 attached
dwellings (at a density of 49.37 units/acre on residential/retail portion of site and a height of 150
Staff Report - Community Development Board - December 14, 2004
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feet) and 11,000 square feet of retail sales and services (at a FAR of 0,105 on the residential/retail
portion of site). The northern portion of the site is proposed to be redeveloped with a 253-room
hotel. The southern portion of the site is proposed to be redeveloped with 119 attached dwelling
units in two buildings and 11,000 square feet of retail sales and services space located on the west
side of Mandalay Avenue north of San Marco Street. The overall project density and intensity is
being derived through the following:
. 137 rooms for the hotel are a result of the Termination of Status of Nonconformity
approved in 2003 for the existing Clearwater Beach Hotel;
. 141 rooms for the hotel are being requested from the Beach bv Design density pool;
The above represents a maximum potential of278 rooms/units, of which the project
proposes 253 rooms/units. The remaining 25 rooms/units are proposed to be
converted to 11,000 square feet of retail uses. Any unused density pool rooms/units
will be returned to the City.
. 72 dwelling units are permitted based on the maximum density of 30 dwelling units per
acre on the southern 2.41 acres devoted to residential development;
. 48 dwelling units are per the allocation of the Gray Settlement agreement (see Sheet 1 of
15 of the Civil Site Plan set for greater clarification as to density calculations); and
The above represents a maximum potential of 120 dwelling units, of which the
project proposes 119 dwelling units.
. 11,000 square feet of commercial floor area, based on a conversion of existing hotel rooms
to floor area permitted.
This project is being reviewed as one overall site, even though Baymont Street separates it.
Densities for the hotel and residential portions of this proposal exceed the maximums of 40
rooms/units per acre for overnight accommodation uses and 30 dwelling units per acre respectively
due to the Gray Settlement and density pool rooms. Density calculations for the hotel portion of
the site is based on the 3.69-acre area zoned Tourist District (an additional 3.67 acres is zoned
Open Space/Recreation District), Any unused density rooms/units for the hotel will be returned to
the City's density pool as described in Beach by Design. The proposal blends provided parking
across the overall site.
The hotel portion of the proposal will be located on the west side of Mandalay Avenue between
Baymont and Ambler Streets. The hotel will be accessed from Baymont Street by two driveways.
The eastern driveway accesses the porte cochere, with its valet and taxi staging area. The western
driveway accessed the garage parking area under the building. Provision of these two driveways
will remove the existing five on street parking spaces from the north side of Baymont Street.
Garage parking under the building is also accessed from Ambler Street. A truck loading/unloading
and trash area is also accessed from Ambler Street. An existing pedestrian easement provides
continued public access to the beach through the garage parking area as an extension of Ambler
Street.
The hotel is proposed to be located eight feet from the Mandalay Avenue front property line and
five feet from the Ambler Street front property line. The hotel building is proposed to be located
33 feet from the Baymont Street front property line. The drive to the porte cochere is proposed 6.9
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feet from the Mandalay Avenue front property line. A waterfall feature will extend into the
Mandalay Avenue right-of-way, requiring the developer to obtain a right-of-way utilization permit
prior to the issuance of any permits. The proposed hotel building and parking is proposed within
one-foot of the side (north and east) property lines north of Ambler Street. The proposal also
includes a reduction, pursuant to Section 3-905, to the side (west) setback from the Coastal
Construction Control Line (CCCL) from 10 feet to zero feet, to allow construction of the new
building at the CCCL. The proposal includes the construction of a portion of the pool and pool
deck west of the CCCL and the reuse and renovation of portions of existing hotel buildings in the
northwest and southwest areas of the hotel site that are west of the CCCL. The northern building
to be retained will have event rooms and restrooms. The southern building will have a pool grill
and restrooms. The Florida Department of Environmental Protection will be required to approve
of these structures (existing or proposed) west of the CCCL, with evidence of such approval being
submitted prior to the issuance of any permits. All structures will be located within the area zoned
Tourist District.
The resort hotel is designed in a vernacular style of building with nine levels, at an overall height
of approximately 95 feet above BFE, with submitted plans showing 253 rooms/units. The flat roof
is designed with decorative mansard architectural embellishments an additional 12 - 20 feet above
the roof deck to screen unsightly rooftop air conditioning units and other mechanical equipment.
The exterior of the building will be tan stucco, with off-white banding and accents, bronze rails
and a patina green tile roof. The lobby level (above the ground level parking garage) will provide
the hotel lobby, a spa/beach club/health club, restaurant, lounge and ballroom. Level 3 will
provide the upper level of the spa/beach club/health club and meeting room space. Level 4 will
provide 35 rooms, while Levels 5, 6 and 7 will provide 56 rooms per floor. Levels 8 and 9 will
provide 25 rooms per floor, with the ability to sell the units on these floors as condominium hotel
units. Occupancy of any hotel unit by owners or guests will not exceed 30 days per stay. A typical
hotel room by industry standards is 360 square feet. A standard room for the proposed hotel will
be approximately 450 square feet. In addition, there will be extended rooms and one and two
bedroom suites ranging from 550 to 1,300 square feet.
The residential/retail portion of the proposal will be located on the west side of Mandalay Avenue
between San Marco and Baymont Streets, The residential/retail garage parking will be accessed
from one driveway on Baymont Street and one driveway on San Marco Street. An existing
driveway on Mandalay Avenue will be eliminated, increasing the on street parking by three spaces
on Mandalay Avenue. Provision of the driveway on San Marco Street will remove three on street
parking spaces. This portion of the site includes the proposed vacation of Beach Drive. Pedestrian
access to the beach will be maintained through both San Marco and Baymont Streets.
The residential/retail building is proposed to be located at the front property line of Mandalay
Avenue and San Marco Street (zero-foot setback). The placement of these one-story retail uses
next to the sidewalk will provide a more vibrant and pedestrian friendly environment for shoppers
and visitors. The proposal includes three levels of attached dwellings (condominiums) above the
retail uses in a smaller building a total of 48.5 feet from BFE to the flat roof deck, with an
additional 8 - 12 feet for decorative mansard architectural embellishments to screen unsightly
rooftop air conditioning units and other mechanical equipment. The residential/retail building is
Staff Report - Community Development Board - December 14,2004
Cases FLD2004-09068/PL T2004-000 16/SGN2004-09020
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proposed to be located 18 feet from the Baymont Street front property line. The proposal also
includes a reduction, pursuant to Section 3-905, to the side (west) setback from the Coastal
Construction Control Line (CCCL) from 10 feet to zero feet, to allow construction of the new
building at the CCCL. On the first floor of the parking garage 19 storage units for the
condominium residents is provided accessible from and facing the beach. On the second floor of
the parking garage 100 tenant storage units are proposed on the beach side of the building. The
podium level (Level 3) will include a pool for the residential units and will be landscaped with a
variety of shrubbery, ground covers and trees in planters. A second residential building is
proposed south of Baymont Street with 13 levels of attached dwellings (condominiums). This
residential tower is proposed approximately 150 feet above BFE to the flat roof deck, with an
additional 12 - 18 feet for decorative mansard architectural embellishments to screen unsightly
rooftop air conditioning units and other mechanical equipment. The Planning Department
determined that, since this is being reviewed as one unified site, the increased height above 100
feet could be applied to the residential tower. Residential units will range from 1,600 to 4,200
square feet in size. The exterior of these buildings will be shortbread stucco, with Dover white
and camelback accents, lattice and trim, bronze rails and a patina green tile roof.
The proposal complies with the intent of the Destination Resort District of Beach by Design by
providing a mixed-use project with resort residential and hotel uses fronting on the beach and
retail and residential uses fronting on Mandalay Avenue. The proposal also is in compliance with
the design guidelines B.2 and B.3 of Beach by Design on pages 57 and 58. The Mandalay Beach
Club provides two towers over 100 feet within 500 linear feet, which met Option 1 on page 58.
The residential tower closest to Baymont Street is the third tower over 100 feet in height, which
must meet Option 2 on Page 58. The linear distance from Papaya Street to Baymont Street is less
than 800 feet. This now introduces a 40 percent solid (60 percent open) building envelop above
100 feet in B.3. The applicant has indicated that the project meets the maximum 40 percent solid
envelop,
In consideration of the allocation of density pool hotel rooms/units, the developer is proposing to
improve the City rights-of-way for Mandalay Avenue, San Marco Street and Baymont Street.
These improvements include undergrounding the utilities on San Marco and Baymont Streets, new
curbs and sidewalks, construction of Baymont Street and Mandalay Avenue to match other roads
improved by the City and the installation of landscaping and street furniture. The developer has
estimated these improvements to be $861,000.00.
Parking for this proposal is provided on an overall site basis. There are 121 parking spaces
provided under the hotel building, which will include some stacked spaces for valet parking.
There are two levels of parking on the residential/retail parcel. The first level of parking will
provide 160 spaces for the hotel, retail and attached dwelling (condominium) use, The second
level of parking will provide 159 spaces solely for attached dwelling (condominium) use. Parking
required for the overall site has been calculated as follows:
. Resort hotel - Based on the parking demand study submitted and approved in 2003 as part
of the Termination of Status of Nonconformity for the existing Clearwater Beach Hotel, 98
parking spaces are provided for the first 137 rooms (ratio of 0,715 parking spaces per
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Cases FLD2004-09068/PL T2004-000 16/SGN2004-09020
Page 6 of 14
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room/unit). The remaining 123 rooms/units are providing the required one space per
room/unit.
. Attached dwellings (condominiums) - Parking is required and provided on the basis of 1.5
spaces per dwelling unit.
. Retail Sales and Services - Code requires five parking spaces per 1,000 square feet of
gross floor area. Parking spaces for the retail area is being provided at a ratio of 2.7 spaces
per 1,000 square feet based on the reasons stated below.
The proposal includes a reduction to the required number of parking spaces from 456 to 431
spaces. A Parking Demand Study has been submitted providing the justification for the reduction.
The proposed reduction basically centers on the retail uses, where a ratio of 2.7 spaces per 1,000
square feet of gross floor area is provided. Retail uses are envisioned as specialty, non-destination
beach related retail shops that will draw their customers from pedestrians walking along Mandalay
A venue and from the hotel and attached dwellings proposed on-site and within the area. This
reduction is consistent with other similar uses along Mandalay Avenue and in the downtown area
of Clearwater. At times when parking is operating at peak levels, the developer will operate both
the hotel parcel and the first floor of the residential/retail parcel totally as valet parking, with the
ability to generate an additional 74 stacked parking spaces.
A Traffic Impact Study was submitted with the proposal assessing the impacts of the proposed
development on the surrounding roadway system. The findings of the Study concludes that
acceptable levels of service will be maintained with development of the proposed hotel, attached
dwellings and retail sales uses, However, the Traffic Operations Division has determined the need
for an exclusive right turn lane on Baymont Street. The City will allow the project to proceed and
be constructed, with periodic delay studies every four months for one year after completion of the
project to be conducted at the intersection of Baymont Street and Mandalay Avenue. Ifthe studies
and the Traffic Operations Division determine that the right turn lane is needed, then the developer
will install the right turn lane at their expense (see Exhibit I of the Development Agreement).
A "beach club" is included as an accessory use within the resort hotel, providing members with
locker facilities, access to the spa, fitness center, meeting rooms, restaurants, pool and the beach,
with a maximum of300 members. This proposal anticipates as many as 140 of these memberships
to be taken by people living in or close to the resort hotel. The Parking Demand Study assigns no
additional parking spaces necessary for these 140 memberships. While no parking is required for
this accessory use, the remaining 160 memberships from outside the area will produce a parking
demand. Due to the proposed character of the beach club, it is unlikely that all of the 160 outside
members would access the facilities at the same time. The Parking Demand Study proposes a rate
of 20 percent of the members using the facilities at anyone time, with a rate of one space per five
memberships used for parking demand, producing a need of 32 parking spaces. This ratio is
comparable to other clubs located in Florida (included in the Parking Demand Study). While a
demand for parking spaces has been identified, the Parking Demand Study indicates that time of
day usage characteristics of this beach club, in concert with the hotel, condominium and retail
sales parking needs, will not significantly impact parking provided on-site. Again, at times when
parking is operating at peak levels, the developer will operate both the hotel parcel and the first
Staff Report - Community Development Board - December 14,2004
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Page 7 of 14
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floor of the residential/retail parcel totally as valet parking, with the ability to generate an
additional 74 stacked parking spaces.
The proposal includes the provision of a maximum of 57 boat slips on the east side of Mandalay
A venue on City owned property. The City will control 19 slips, while the remaining 38 slips will
be rented to resident condominium owners or be available to hotel guests. These boat slips will be
required to submit for Flexible Development approval by the Community Development Board,
with all required information. The Parking Demand Study indicates that there will be no
additional parking required for these boat slips, as shuttle service will be provided by the hotel or
residents will be able to walk to their boats.
This proposal includes a Preliminary Plat that will replat the existing property into a total of four
lots, three lots north of Baymont Street (hotel parcel) and one lot south of Baymont Street
(residential/retail parcel). Two of the lots north of Baymont Street (hotel parcel) are zoned Open
Space/Recreation District. The proposal includes conveying to the City the westernmost lot (the
"beach property") as additional consideration for the allocation of the additional hotel rooms/units
from the hotel density pool. This "beach property" will satisfy the Recreation Facility Land Fees
and Open Space Fees assignable to the project, and will permit the City to grant concessions on
this area of the beach. The middle lot (the "upland property") will be owned by the developer, will
permit the general public continued use of this area and allow the developer to operate concessions
(sale, rental or use of equipment, products and services common to beach use), but will not permit
jet-ski or para-sail operations.
The applicant has submitted a Comprehensive Sign Program SGN2004-09020 for the project, but
only detailed two freestanding signs and one attached sign for the hotel parcel. The concept of this
Comprehensive Sign Program is acceptable, but final design of all signs must be in substantial
compliance with those included herein prior to issuance of sign permits and all freestanding signs
must be set back a minimum of five feet from the property line. No signage was submitted for the
residential/retail portion of the project and therefore signage for this portion of the site will need to
meet minimum Code requirements.
Code Enforcement Analysis: There are no outstanding enforcement issues associated with this
site.
Staff Report - Community Development Board - December 14,2004
Cases FLD2004-09068/PL T2004-000 16/SGN2004-09020
Page 8 of 14
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COMPLIANCE WITH STANDARDS AND CRITERIA: (Sections 2-801.1 and 2-803):
STANDARD PROPOSED CONSISTENT INCONSISTENT
MAXIMUM Hotel portion: 253 rooms (a) X*
DENSITY Resid.ential/Retail portion: 119
(40 rooms per acre; dwelling units (a)
147 rooms maximum);
(30 dwelling units per
acre; 72 dwelling units
maximum)
FLOOR AREA Retail sales and services: 0.105 (a) X
RATIO (FAR) (1.0
maximum)
IMPERVIOUS Hotel portion: 0.79 X
SURFACE RATIO Residential/Retail portion: 0.66
(ISR) (0.95 maximum)
LOT AREA (20,000 Hotel portion: 3.69 acres zoned X
sq. feet minimum for Tourist District; 160,736 square feet
overnight Residential/Retail portion: 2.41 acres;
accommodations; 104,980 square feet
10,000 sq. feet
minimum for attached
dwelliD1~s;)
LOT WIDTH (150 Hotel portion: 332.83 feet along X
feet . . for Mandalay Avenue; 369.11 feet along
mlDlmum
overnight Baymont Street zoned Tourist District;
accommodations; 100 160 feet along Ambler Street
feet minimum for ResidentialIRetail portion: 189.33 feet
attached dwellings) along Mandalay Avenue; 251.63 feet
along Baymont Street; 350 feet along
San Marco Street
FRONT SETBACK Hotel portion: X*
(0-15 feet) Mandalay Avenue: eight feet (to
building) and zero feet (to pavement
and waterfall feature)
Bavrnont Street: zero feet (to
pavement)
Ambler Street: five feet (to building)
Residential/Retail portion:
Mandalay Avenue: zero feet (to
building)
Bavrnont Street: 18 feet (to building)
San Marco Street: zero feet (to
building)
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Cases FLD2004-09068/PL T2004-000 16/SGN2004-09020
Page 9 of 14
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REAR SETBACK N/A X
(10-20 feet)
SIDE SETBACK Hotel portion: X*
(0-10 feet) East: one feet (to building and
pavement)
West: (Coastal Construction Control
Line [CCCL]) zero feet (to building
and pool deck)
Residential/Retail portion:
East: four feet (to building)
West: (Coastal Construction Control
Line [CCCL]) zero feet (to building)
HEIGHT (35-100 feet Hotel portion: 95 feet (to roof deck) X*
maximum for (with an additional 12 - 20 feet for
attached dwellings) decorative mansard architectural
embellishments)
Residential/Retail portion: 150 feet (to
roof deck for residential tower) (with
an additional 12 - 18 feet for
decorative mansard architectural
embellishments); 48.5 feet (to roof
deck for mixed use building) (with 12
feet for decorative mansard
architectural embellishments)
PARKING SPACES 431 spaces (b) X*
(1.0 spaces - overnight
accommodation use;
1.5 spaces - attached
dwellings; 5 spaces/
1,000 sf retail sales)
(456 spaces required)
(a) 137 rooms allowed per approved Termination of Status of Nonconformity for overnight
accommodation use plus a maximum of 141 rooms from Beach by Design density pool; 72
dwelling units allowed based on 30 dwelling units per acre plus an additional 48 dwelling units per
allocation of Gray Settlement agreement (converted from overnight accommodation rooms); Retail
sales and services FAR converted from 11 overnight accommodation rooms (see Sheet 1 of 15 of
Civil Site Plan for calculations).
(b) See Parking Demand Study for analysis.
*See discussion under Analysis.
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Cases FLD2004-09068/PL T2004-000 16/SGN2004-09020
Page 10 of 14
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COMPLIANCE WITH FLEXIBILITY CRITERIA (Section 2-803.C):
Consistent Inconsistent
1. The development or redevelopment of the parcel proposed for X
development is otherwise impractical without deviations from the use,
intensity and development standards,
2. The development of the parcel proposed for development as a X
Comprehensive Infill Redevelopment Project will not reduce the fair
market value of abutting properties.
3. The uses within the Comprehensive Infill Redevelopment Project are X
otherwise permitted in the City of Clearwater.
4. The use or mIX of uses wi thin the Comprehensive Infill X
Redevelopment Project is compatible with adjacent land uses.
5. Suitable sites for development or redevelopment of the uses of mix of X
uses within the Comprehensive Infill Redevelopment Project are not
otherwise available in the City of Clearwater.
6. The development of the parcel proposed for development as a X
Comprehensive Infill Redevelopment Project will upgrade the
immediate vicinity of the parcel proposed for development.
7. The design of the proposed Comprehensive Infill Redevelopment X
Project creates a form and function that enhances the community
character of the immediate vicinity of the parcel proposed for
development and the City of Clearwater as a whole.
8. Flexibility in regard to lot width, required setbacks, height and off- X
street parking are justified by the benefits to community character and
the immediate vicinity of the parcel proposed for development and the
City of Clearwater as a whole.
0 Adequate off-street parking in the immediate vicinity according to the
~ . X
shared parking formula in Division 14 of Article 3 will be available to
avoid on-street parking in the immediate vicinity of the parcel
proposed for development.
COMPLIANCE WITH GENERAL STANDARDS (Section 3-913):
Consistent Inconsistent
1. Development of the land will be in harmony with the scale, bulk, X
coverage, density and character of adjacent properties.
2. Development will not hinder or discourage development and use of X
adjacent land and buildings or significantly impair the value thereof.
3. Development will not adversely affect the health or safety of persons X
residing or working in the neighborhood.
4. Development is designed to minimize traffic congestion. X
5. Development is consistent with the community character of the X
immediate vicinity.
6. Design of the proposed development minimizes adverse effects, X
including visual, acoustic and olfactory and hours of operation
impacts on adjacent properties.
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Cases FLD2004-09068/PL T2004-000 16/SGN2004-09020
Page 11 of 14
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SUMMARY AND RECOMMENDATION:
The Development Review Committee reviewed the application and supporting materials on
November 12, 2004. The Planning Department recommends APPROVAL of (1) Flexible
Development application to permit a maximum of 253 overnight accommodation units, 119
attached dwellings and 11,000 square feet of retail sales and services as a mixed use (with increase
in density of 141 hotel rooms from the Beach by Design density pool), with reductions to the front
(east along Mandalay Avenue) setback (between Baymont and Ambler Streets) from 15 feet to
eight feet (to building) and from 15 feet to zero feet (to pavement and waterfall feature), a
reduction to the front (south along Baymont Street) from 15 feet to zero feet (to pavement), a
reduction to the front (north along Ambler Street) setback from 15 feet to five feet (to building), a
reduction to the front (east along Mandalay A venue) setback (between San Marco and Baymont
Streets) from 15 feet to zero feet (to building), a reduction to the front (south along San Marco
Street) from 15 feet to zero feet (to building), a reduction to the side (west) setback (Coastal
Construction Control Line [CCCL]) from 10 feet to zero feet (to building and pool deck) and to
allow existing and proposed improvements to remain up to 62 feet west of the CCCL, a reduction
to the side (east and north between San Marco and Baymont Streets) from 10 feet to four feet (to
building), reductions to the side (east and north, north of Ambler Street) from 10 feet to one-foot
(to building) and from 10 feet to one-foot (to pavement), an increase to building height from 35
feet to 95 feet (to roof deck) for the proposed overnight accommodation use (with an additional 12
- 20 feet for decorative mansard architectural embellishments), an increase to building height from
35 feet to 150 feet (to roof deck) for the proposed residential building (with an additional 12 - 18
feet for decorative mansard architectural embellishments), a reduction to required parking from
456 spaces to 431 spaces and deviations to allow stacked parking and buildings within the
visibility triangles, as a Comprehensive Infill Redevelopment Project, under the provisions of
Section 2-803.C, and to eliminate the required foundation landscaping along Mandalay Avenue
and San Marco Street, as a Comprehensive Landscape Program, under the provisions of Section 3-
1202.G; (2) Preliminary Plat approval (PLT2004-00016) for four lots; (3) Comprehensive Sign
Program approval, under the provisions of Section 3-1807 (SGN2004-09020) ;and (4) the vacation
of Beach Drive (North Gulfview Boulevard) between San Marco and Baymont Streets, for the site
at 470, 484 and 500 Mandalay Avenue and 470,489,490 and 495 Beach Drive, with the following
bases and conditions:
Bases for Approval:
1. The proposal complies with the Flexible Development criteria as a Comprehensive Infill
Redevelopment Project per Section 2-803,C;
2. The proposal is in compliance with other standards in the Code including the General
Applicability Criteria per Section 3-913;
3. The proposal complies with Beach by Design; and
4. The development is compatible with the surrounding area and will enhance other
redevelopment efforts.
Conditions of Approval:
1. That approval includes 253 hotel rooms/units, a maximum of 119 attached dwelling units
and a maximum of 11,000 square feet of retail Gross Floor Area;
Staff Report - Community Development Board - December 14,2004
Cases FLD2004-09068/PL T2004-000 16/SGN2004-09020
Page 12 of 14
(9
6.
7.
8.
9.
14.
15.
16.
17.
.
.
2.
That approval of this Flexible Development case is subject to the approval of a Develop-
ment Agreement with the City (Case DV A2004-00005);
That approval of this Flexible Development case is subject to the vacation of right-of-way
by the City prior to the issuance of any permits;
That any unused density rooms/units for the hotel be returned to the City's density pool as
described in Beach by Design;
That no hotel rooms/units be deemed attached dwellings with individual dwelling units,
nor shall rooms/units qualify for homestead exemption or home or business occupational
licenses, At the request of the City Manager or designee, the records of the business shall
be made available for examination to determine whether the length of stay complies with
these provisions. Failure to provide such records upon request shall be grounds for imposi-
tion of appropriate fines, revocation of the occupational license and/or any other enforce-
ment afforded by law or by City regulations;
That the final design and color of the building be consistent with the conceptual elevations
submitted to, or as modified by, the CDB;
That, prior to issuance of any site development building permits, a City Right-of- Way
Utilization Permit be obtained for the proposed walls and fountain;
That, prior to issuance of any site development building permits, the applicant compensate
the City for the five lost street parking spaces at $4550.00 per space;
That, prior to the issuance of the first Certificate of Occupancy, traffic impact fees be
assessed and paid;
That all Parks and Recreation fees be paid prior to the issuance of any permits, as provided
by the Development Agreement;
That a Final Subdivision Plat be recorded prior to the issuance of building permits for
vertical improvements;
That a condominium plat be recorded prior to the issuance of the first Certificate of
Occupancy;
That the Comprehensive Sign Program be approved in concept, where final design of all
signs prior to issuance of sign permits be in substantial compliance with those approved
herein and where all freestanding signs be set back a minimum of five feet from the prop-
erty line;
That all applicable requirements of Chapter 39 of the Building Code be met related to
seawall setbacks;
That prior to issuance of permits for any existing or proposed structures west ofthe Coastal
Construction Control Line (CCCL), the applicant submit a copy of the Florida Department
of Environmental Protection approval for that construction west of the CCCL;
That all Fire Department requirements be met prior to the issuance of any permits; and
That the construction of the controls and electrical work for the lift station be completed to
the satisfaction of the City Engineer prior to issuance of the first Certificate of Occupancy
for the hotel.
3.
4.
10.
11.
12,
13.
Prepared by: Planning Department Staff:
Staff Report - Community Development Board - December 14,2004
Cases FLD2004-09068/PL T2004-000 16/SGN2004-09020
Page 13 of 14
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ATTACHMENTS:
Aerial Photograph of Site and Vicinity
Location Map
Future Land Use Map
Zoning Atlas Map
Application
S:IPlanning DepartmentlC D SIFLEX (FLD)IPending cases I Up for the next CDSIMandalay 500 Sandpearl Resort (1) 12.14.04 CDS -
WWlMandalay 500 Staff Report,doc
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City Council Agenda
Date: 01/20/2005
6:00 PM
Location: Council Chambers - City Hall
Welcome. We are glad to have you join us. If you wish to speak, please wait to be recognized, 1
state your name and address. Persons speaking before the City Council shall be limited to threl
minutes unless otherwise noted under Public Hearings. For other than Citizens to be heard reg;
items not on the Agenda, a spokesperson for a group may speak for three (3) minutes plus an
additional minute for each person in the audience that waives their right to speak, up to a maxir
of ten (10)minutes. Prior to the item being presented, please obtain the needed form to designa
a spokesperson from the City Clerk (righthand side of dais). Up to thirty minutes of public comrr
will be allowed for an agenda item. No person shall speak more than once on the same subject
unless granted permission by the City Council. The City of Clearwater strongly supports and ful
complies with the Americans with Disabilities Act (ADA). Please advise us at least 48 hours pric
to the meeting if you require special accommodations at 727-562-4090. Assisted Listening
Devices are available. Kindly refrain from using beepers, cellular telephones and other distractil
devices during the meeting.
1 Call to Order
2 Invocation
3 Pledge of Allegiance
4 Introductions and Awards:
4.1 Service Award
5 Presentations:
5.1 Farewell to Mayor Aungst
5.2 Proclamation - The Clearwater Beach Chamber of Commerce
5.3 Neighborhood of the Quarter
5.4 FLA Limited Edition Print
5.5 Turkey Trot Awards
6 Approval of Minutes
6.1 City Council - December 16, 2004
7 Citizens to be Heard re Items Not on the Agenda
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Public Hearings - Not before 6:00 PM
8 Quasi-judicial public hearings
.
- Staff states and summarizes reasons for recommendation (2 minutes).
- Applicant presents case, including its testimony and exhibits. Witness may be
cross-examined (15 minutes).
- Staff presents further evidence. May be cross-examined (10 minutes).
- Public comment (3 minutes per speaker or 10 minutes maximum as spokesperson for
others that have waived their time).
- City Council discussion, and may question any witness.
- Applicant may call witnesses in rebuttal (5 minutes).
- Conclusion by applicant (3 minutes).
- Decision.
8.1 Approve the Petition for Annexation, Land Use Plan Amendment from County
Residential Urban (RU) to City Residential Urban (RU) and Zoning Atlas Amendment
from the County R-4. One, Two and Three Family Residential District. to the City
Medium Density Residential (MDR) District for 2060 Evergreen Avenue (Lots 1 througl
16 Brooklawn Subdivision, Block 1 in Section 3, Township 29 South, Range 15 East);
and Pass Ordinances #7362-05, #7363-05 &# 7364-05 on first reading.
8.2 Approve the Petition for Annexation, Land Use Plan Amendment from County
Residential Urban (RU) to City Residential Urban (RU) and Zoning Atlas Amendment
from the County R-3. Single-Family Residential District. to the City Low Medium Densi'
Residential (LMDR) District for 1481 Carolyn Lane (Lot 19 Terra-Alto Estates in Sectio
2. Township 29 South, Range 15 East); and PASS Ordinances #7365-05. #7374-05 &
#77375-05 on first reading.
~~/I.l
9 Administrative public hearings
- Presentation of issues by City Staff
- Statement of case by applicant or representative (5 min.).
- Council Questions
- Comments in support or opposition (3 min. per speaker or 10 min. maximum as
spokesperson for others that have waived their time).
- Council Questions
- Final rebuttal by applicant or representative (5 min.)
- Council disposition
9.1 Approve amendments to the Clearwater Downtown Redevelopment Plan and Pass
Ordinance No. 7367-05 on first reading.
9.2 Continue until a date uncertain the applicant's request to vacate the north one-half of
Q~mpsey-SJ:rJ~j2LlA K.A,_Z211_akeYiew RQ_acL\Lt\C 2(;tQ4=-16t
9.3 Approve a development agreement between CBR Development I. LLC and CBR
Development II, LLC and the City of Clearwater and approve Resolution No. 05-04.
9.4 Approve applicant's request to vacate Beach Drive from San Marco Drive north to
Baymont Street (470 - 4~5 Beach Drive)L-subject to specified conditions, and approve
Ordinance Number 7369-05 on first reading, (V AC2005-01 Hunter Hotel Company and
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9.5
Mandalay Investments, LLC),
Approve amendment to the Community Development Code imposing a moratorium
upon certain development approvals for the Old Florida District Subarea of the Beach t
Design Special Area Plan concerning Clearwater Beach and Pass Ordinance No.
7385-05.
"
Follow-up from Work Session 01/18/05 - Old Florida District.
10 Second Readings - public hearing
10.1Adopt Ordinance No. 7353-05 on second reading, annexing certain real property whose
post office addressis 1208 Claire Drive, into the corporate limits of the City, and
redefining the boundary lines of the City to include said addition.
10.2Adopt Ordinance No. 7354-05 on second reading, amending the Future Land Use Plan
element of the Comprehensive Plan of the City, to designate the land use for certain
real property whose post office address is 1208 Claire Drive, upon annexation into the
City of Clearwater, as Residential Low.
10.3Adopt Ordinance No. 7355-05 on second reading, amending the zoning atlas of the City
by zoning certain real property whose post office address is 1208 Claire Drive, upon
al}nexation into the City of Clearwater. as Low Medium Density Residential (LMDR).
10AAdopt Ordinance No. 7370-05 on second reading, vacating the east 240 feet of the
40-foot right of way of State Street, subject to a drainage and utility easement which is
retained over the full width thereof.
10.5Adopt Ordinance No. 7373-05 on second reading, relating to purchases over
$50,000.00, amending Chapter 2. Administration, Division 3, Subdivision II. Purchase of
Commodities, Services. and Public Works Bids. Code of Ordinances, providing for
advertising of construction proiects where the cost exceeds $200,000 or $500,000.
City Manager Reports
11 Consent Agenda
11.1AQRrove the request for a housing infillloan deferral for a Reriod not to exceed six
months for the borrower Ms. Isla Wilburn, and authorize staff to approve an additional
six month deferral if warranted.
11.2Approve the loan restructure with Greenwood Apartments, LLC.
11.3Approve the City of Clearwater - Housing Loan Approval Policy.
11AQecL~L~QIJ~ XeLQ2Lcolor cQQi~[~nEL8D Dick Qrin1tlJ9-Pl~$S gDd one Triumph cutter,
surplus to the needs of the City and authorize disposal through sealed bid sale to the
highest bidder. trade-in for additional graphics equipment or through Solid Waste
recycling.
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11.5Approve three Pinellas County Recreational Grant Funding Agreements for the Long
Center for a total amount of $12.500, between Pinellas County and the City of
Clearwater and authorize the appropriate officials to execute same.
tJ
11.6Appoint C.W. "Bill" Renfroe to the Board of Trustees. Clearwater Police Supplementary
Pension Plan for a term from February 1. 2005 to January 31.2007.
11 .7 Approve the First Amendment to the Agreement between the Southwest Florida Water
Management District and the City of Clearwater increasing the District funding for the
Alligator Creek Implementation Projects, Phase II from $1.000.000 to $2.500,000 and
authorize the appropriate officials to execute same.
11.8Accept a 5-foot Water Main and Utility Easement conveyed by Peter and Toula Hlepas.
husband and wife. over and across a portion of Lot C. Block 1. BAYSIDE SUBDIVISION
NO.4 UNIT A. given in receipt of $1.00 and other valuable consideration and authorize
the appropriate officials to execute same.
11.9 Award a contract to American Water Services Underground Infrastructures. Inc.. in the
amount of $350.000.00 for sanitary sewer line cleaning and inspection at various
locations throughout the City of Clearwater. using the unit prices established in a
contract with the City of S1. Petersburg for Sanitary Sewer Cleaning (Bid No. 6242),and
authorize the appropriate officials to execute same.
11.10Award a construction contract for Lift Station #55 Rehabilitation (01-0036-UT) to TLC
Diversified. Incorporated of Palmetto. Florida in the amount of $622,770.50. in
accordance with City Code Sec. 2.564(d). other governmental bid,and authorize the
appropriate officials to execute same.
11 .11 Award a contract for the refurbishment construction for one 90 foot diameter digester
and associated equipment at both the Northeast and Marshall Street APCFs (Project
#03-0022-UT. Biosolids Treatment Implementation - Digester Refurbishment) to RTD
Construction. Inc.. of Zephyrhills, Florida. in the amount of $4.742,156.10, which is the
lowest responsible bid received in accordance with plans and specifications, including c
10% Contingency.and that the appropriate officials be authorized to execute same.
11.12Award a contract for construction of Security Features. including fencing and barricade
walls, at the Northeast Advanced Pollution Control Facility (NEAPCF) and Treatment
Plants 2 and 3 (formerly titled reservoirs 2 and 3) to Kloote Contracting. Inc.. Palm
Harbor. Florida in the amount of $218.523.80. which is the lowest responsible bid
received in accordance with plans and specifications. and authorize the appropriate
officials to execute same.
11.13Ratify and Confirm Change Order No, 2 & Final to Wharton-Smith. Inc. of Lake Monroe
FL for the 2000 Reclaimed Water System Improvements. Contract 2 - Pumping
Stations Improvements (00-0029-UT) in the amount of $83.285.07. for a new contract
total of $1.263.523.09. and approve a time extension of 426 days.
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11.14Review and Accept the Annual 2004 Report of Transfer of Development Rights (TDRs)
pursuant to Reporting Requirement of the Community Development Code.
11.15Review and File the Annual 2004 Reports of Beach by Design Hotel Room Density Poc
and Clearwater Downtown Redevelopment Plan Area Public Amenities Incentive Pool.
11.16Reppoint Jonathan Wade to the Parks ~md Recreation Board with the term expirin~
January 31.2009.
11.17 Authorize the City Attorney to appeal the Order of the Unemployment Appeals
Commission in the case of City of Clearwater v. Kulig.
12 Other items on City Manager Reports
12.1 Adopt Resolution 05-01. adopting the United States Department of Homeland
Security's established National Incident Management System as the concept for
planning. preparing. responding. recovering. and mitigating emergencies happening in
or effecting the City of Clearwater.
12.2Award a contract to lease desktop and laptop computers for 3 years from Dell
Computers. Inc.. Round Rock, TX, for an amount not to exceed $1,005,000, in
accordance with the terms of State Contract #250-000-03-1: and award a contract to
lease purchase monitors from Dell Computers, Inc., Round Rock, TX, for an amount not
to exceed $260,000, in accordance with the terms of State Contract #250-000-03-1: and
adopt Resolution 05-05 authorizing the City Manager to delegate to the Information
Technology Director or other designee the ability to execute documents on Lease
Agreements with Dell Marketing. LP.
12.3 Pass Ordinance No. 7376-05 on first reading, amending Section 22.24 of the City of
Clearwater Code of Ordinances relating to the regulation of hours of operation for park~
and to prohibit trespassing on parks. and amending Section 22.33 of the City of
Clearwater Code of Ordinances deleting reference to park hours due to a revision of
applicable hours at Courtney Campbell Recreation Area.
12.4 Adopt Resolution No. 05-07 authorizing changes to the recently amended commercial
and private dock permits for storage of vessels at the Clearwater Municipal Marina and
the conditions surrounding the turnover of business ownership at the Clearwater
Municipal Marina.
12.5 Pass Ordinance No. 7377-05. amending paragraph (7) of Chapter 33, Section 33.067 c
the Code of Ordinance extending the designated slow down minimum - wake zone in
Mandalay Channel. on first reading.
12.6 Pass on first reading Ordinance No. 7384-05 repealing Ordinance 6132-97 that
conditionally yac~ted a portioJl.9f Jhe public alley in Block 4. GOULD & EWING'S 2NlL
AOJ)lIION~yeGQrd~9 in O. R Bo~9Ei~ Page 131 0, Pinell~~ounty public record:
12.7 Approve a Highway Landscape Reimbursement and Maintenance Memorandum of
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Agreement with the Florida Department of Transportation. District Seven. so that
aesthetic improvements can be made a portion of SR 55 (US 19) and Adopt Resolution
No. 05-02 authorizing execution of said Highway Landscape Maintenance Memorandul
Qi8g@emeLlt
12.8 Cleveland Street Recommendation for Spring Break. (at Thursday meeting)
'I
12.9 Appoint four members to the Library Advisory Board with the term expiring on January
31.2009.
12.10Appoint one member to represent the Community Development Board with the term
expiring on February 28. 2009.
12.111AFF Union negotiations update.
13 City Attorney Reports
13.1 Approve the Assignment of the Beachwalk Resort. LLC Development Agreement with
the City of Clearwater to Crystal Beach Capital, LLC and authorize the appropriate
officials to execute same.
14 City Manager Verbal Reports
15 Council Discussion Items
16 Other Council Action
17 Adjourn
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City Council
Cover Memorandum
Trackinq Number: 1,072
Actual Date: 01/20/2005
Subiect / Recommendation:
Approve a development agreement between CBR Development I, LLC and CBR Development II,
LLC and the City of Clearwater and approve Resolution No. 05-04.
Summary:
The subject site is 9.77 total acres (hotel site 7.36 acres [3.69 acres zoned T District; 3.67 acres
zoned OS/R District]; residential/retail site 2.41 acres). The subject site is located on the west
side of Mandalay Avenue between San Marco and Ambler Streets (470, 484 and 500 Mandalay
Avenue and 470, 489, 490 and 495 Beach Drive). The Community Development Board, at their
meeting on December 14, 2004, recommended approval of the development agreement. See
attached memorandum for additional information.
Originatinq: Planning
Section Administrative public hearings
Category: Code Amendments, Ordinances and Resolutions
Number of Hard Copies attached: 0
Public Hearing: Yes
Advertised Dates: 01/20/2005
Financial Information:
Review Approval
Gina Clavton
Pam Akin
12-30-2004 11 :44:40
01-14-2005 10:22:55
01-03-2005 10:38:36
01-14-2005 09:33:44
01-03-2005 14:25:52
01-14-2005 10:03:06
Cvndie Goudeau
Gina Clavton
Garrv Brumback
Bill Horne
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CDB Meeting Date:
Case Number:
Agenda Item:
Owners:
Applicant:
Representative:
Addresses:
.
.
ORIGINAL
December 14, 2004
DV A2004-00005 (Related to FLD2004-09068/PLT2004-00016/SGN2004-
09020)
F1 (Related to E5)
Hunter Hotel Company and Mandalay Investments, LLC
CBR Development I, LLC
E. D. Armstrong III, Esq., Johnson, Pope, Bokor, Ruppel & Bums, LLP
470, 484 and 500 Mandalay Avenue and 470, 489, 490 and 495 Beach
Drive
CITY OF CLEARWATER
PLANNING DEPARTMENT
STAFF REPORT
GENERAL INFORMATION:
REQUEST:
EXISTING ZONING/
LAND USE:
PROPERTY SIZE:
PROPERTY USE:
ADJACENT ZONING/
LAND USES:
Review of, and recommendation to the City Council, of a
Development Agreement between CBR Development I, LLC and
CBR Development II, LLC and the City of Clearwater
Tourist (T) and Open Space/Recreation (OSR) Districts; Resort
Facilities High (RFH) and Recreation/Open Space (RlOS)
Categories
9.77 total acres (hotel site 7.36 acres [3.69 acres zoned T District;
3.67 acres zoned OS/R District]; residential/retail site 2.41 acres)
Current Use: Clearwater Beach Hotel and retail sales
Proposed Use: Mixed use (260 overnight accommodation units at
72.22 rooms/acre on hotel portion of site and a height of 100 feet,
120 attached dwellings at 50 units/acre on residential/retail portion
of site and a height of 150 feet and 11,000 square feet of retail sales
and services at aFAR of 0.1 05 on residential/retail portion of site)
North: Tourist and Open Space/Recreation Districts; Restaurant and
overnight accommodation uses
East: High Density Residential and Tourist Districts; Attached
dwellings and retail sales and services
South: Tourist District; Retail sales and services and attached
dwellings
West: Open Space/Recreation and Preservation Districts; Gulf of
Mexico
Staff Report - Community Development Board - December 14, 2004 - Case DV A2004-00005
Page 1 of 5
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CHARACTER OF THE
IMMEDIATE VICINITY: Attached dwellings, tourist-type retail sales and service uses,
restaurants and overnight accommodation uses dominate the
surrounding area,
ANALYSIS:
Site Location and Existing Conditions: The 9.77 total acres (hotel site 7.36 acres [3.69 acres
zoned T District; 3.67 acres zoned OS/R District]; residential site 2.41 acres) is located on the west
side of Mandalay Avenue between San Marco and Ambler Streets. It is located along a highly
developed area within Clearwater Beach and has frontage along the Gulf of Mexico. The site is
located within the Destination Resort District of Beach By Design, which represents the primary
opportunity for near-term redevelopment on Clearwater Beach because of the relative strength of
the Hilton and the Clearwater Beach Hotel and the opportunity for beachfront resort development
with direct beach access. The preferred form of redevelopment for this area is mixed use with
resort residential and hospitality uses fronting on the Beach and retail, restaurant and residential
uses fronting on North Mandalay Avenue.
The overall site is currently developed with a total of 157 overnight accommodation rooms and
approximately 16,390 square feet of commercial space fronting on Mandalay Avenue. While there
are smaller two- to three-story overnight accommodation buildings along Beach Drive, the bulk of
the overnight accommodation rooms are north of Baymont Street in the Clearwater Beach Hotel.
Both surface parking and garage parking under building are provided for the hotel. All existing
improvements (buildings, pavement, walkways and decks) will be removed as part of the site's
redevelopment, with the exception of portions of buildings north of Baymont Street proposed to be
reused as part of the proposed hotel.
In 2003, the Community Development Board (CDB) approved a Termination of Status of
Nonconformity with two conditions for the existing Clearwater Beach Hotel relating to density
(137 rooms, where only 131 is allowed) and parking (98 existing spaces, where 137 spaces is
required), for the purpose of releasing a Unity of Title to redevelop the property south of Baymont
Street (FLD2003-06026, approved August 19, 2003). Also in 2004, the CDB approved Flexible
Development and Comprehensive Sign Program applications with one condition for the
Clearwater Beach Hotel to be able to retain their existing signage (FLD2003-12068/SGN2003-
10020, approved January 20, 2004). All existing signage will be removed as part of the site's
redevelopment.
The property to the south has been redeveloped into two high-rise attached dwellings (Mandalay
Beach Club). Property to the south along Mandalay Avenue is developed with tourist commercial
uses. Property to the east, south of Baymont Street, is also developed with tourist commercial
uses. North of Baymont Street, the Belle Harbor attached dwellings development with two high-
rise towers and townhomes is still under construction. Property to the north is developed with a
restaurant and overnight accommodation uses, with commercial uses along Mandalay Avenue.
The beach and Gulf of Mexico is to the west of the subj ect property.
Staff Report - Community Development Board - December 14,2004 - Case DV A2004-00005
Page 2 of5
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Proposal: The proposal includes a companion Flexible Development, Preliminary Plat and
Comprehensive Sign Program applications to permit a mixed use of 260 overnight accommodation
units (at a density of 72.22 rooms/acre on the hotel portion of site and a height of 100 feet), 120
attached dwellings (at a density of 50 units/acre on residential/retail portion of site and a height of
150 feet) and 11,000 square feet of retail sales and services (at a FAR of 0.105 on the
residential/retail portion of site).
Development Agreement Proposal: The proposed Development Agreement sets forth
public/private obligations. The City recognizes the economic and aesthetic benefits that will result
from private development. The applicant recognizes the benefit of public improvements that
directly affect the marketability of the project and the character of the general area surrounding the
project. The Development Agreement sets forth the following main provisions:
. The hotel portion of the project will consist of a minimum of 240 and a maximum of 260
rooms, The proposal includes the allocation from the Beach by Design density pool of 141
rooms/units (Section 3.01.3). Any unused density pool rooms/units for the hotel will be
returned to the City's density pool as described in Beach by Design. Length of
stay/occupancy of the hotel rooms will not exceed 30 days (Section 2.03.4).
. The residential portion of the project will consist of no more than 120 dwelling units
(Section 2.03.1),
. The commercial/retail portion of the project will consist of a maximum of 11,000 square
feet of floor area (including no more than 3,000 square feet of restaurant floor area)
(Section 2,03,1).
. The provision of a Beach Club of 300 memberships, including a maximum of 160 outside
memberships (Section 2.03.1).
. The provision of a minimum of 431 parking spaces (Section 2,03.1).
. The developer will make certain improvements, at their expense, to Mandalay Avenue and
Baymont, Ambler and San Marco Streets, including the relocation of overhead utilities to
underground (Section 5.03 and Exhibits H, I , J and K).
. The developer will convey to the City the area on the westernmost portion of the hotel
parcel, which is part of the beach, This conveyance is as additional consideration for the
allocation of the hotel units from the density pool under Beach by Design. The City will
have the exclusive right to grant concessions on this "beach property" (Section 5.03.8).
. The developer owns a portion of the hotel parcel between the area to be developed with the
resort hotel and the "beach property" referred to the "upland property." The general public
will have continued rights to use this area. The developer may operate concessions related
to the use of the beach, including the sale, rental or use of equipment, products and services
common to the beach, except jet-ski or para-sail operations (Section 5.03.8).
. The City agrees to allow the construction of a maximum of 57 boat slips on City-owned
property east of the hotel parcel and north of the Belle Harbor project. The developer will
construct and maintain the boat slips at their expense. The City will control 19 of the slips,
while the developer will have the ability to lease 38 slips to owners, tenants and guests of
the project (Section 5.03.10 and Exhibit N). The processing of a Flexible Development
application for the commercial dock to the Community Development Board is required.
. Prior to the issuance of the final Certificate of Occupancy, the developer will implement a
transportation system management plan, including guest shuttles to the airport and
Staff Report - Community Development Board - December 14, 2004 - Case DV A2004-00005
Page 3 of5
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.
activities, employee shuttles and other measures to minimize vehicular trips associated
with the hotel (Section 2.03,5.c and Exhibit E).
. Prior to the issuance of the final Certificate of Occupancy, the developer will submit a
hurricane evacuation plan to the City, establishing the practices and procedures to be
implemented leading to the evacuation of the hotel in the event of the declaration of a
hurricane watch (Section 2.03.5,d and Exhibit F).
. The Development Agreement expires ten years following the effective date (date approved
by City Council) (Section 18.18.1).
. Commencement of construction of the Hotel Phase of the project is to occur within one
year of the approval of this Development Agreement (except that the time period is tolled
during the review period of building permits) or a maximum of two years from the date this
Development Agreement is approved. The Residential Tower Phase of the project will
commence construction on or before the Hotel commencement deadline. The
Residential/Retail Tower Phase of the project will commence construction within two
years of the after the Hotel commencement deadline.
The Community Development Board has been provided with the most recently negotiated
Development Agreement dated November 18, 2004,
The City Council may enter into Development Agreements to encourage a stronger commitment
on comprehensive and capital facilities planning, ensure the provision of adequate public facilities
for development, encourage the efficient use of resources, and reduce the economic cost of
development. The Community Development Board is required to review the proposed
Development Agreement and make a recommendation to the City Council.
SUMMARY AND RECOMMENDATION:
The Development Review Committee reviewed the application and supporting materials on
November 12,2004. The Planning Department recommends APPROVAL, and recommendation
to the City Council, of a Development Agreement between CBR Development I, LLC and CBR
Development II, LLC and the City of Clearwater for the sites at 470, 484 and 500 Mandalay
Avenue and 470,489,490 and 495 Beach Drive, with the following bases:
Bases for Approval:
1. The Development Agreement is consistent with and furthers the goals, policies and objectives
of the Comprehensive Plan,
2. The Development Agreement complies with the standards and criteria of Section 4-606.
3. The Development Agreement implements and formalizes the requirements for the construction
of site and off-site improvements under the related site plan proposal (FLD2004-09068).
4. The amended Development Agreement is in compliance with Beach by Design.
Prepared by: Planning Department Staff:
Staff Report - Community Development Board - December 14,2004 - Case DV A2004-00005
Page 4 of 5
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ATTACHMENTS:
Location Map
Aerial Photograph of Site and Vicinity
Zoning Atlas Map
Surrounding Existing Uses Map
Photographs of Site and Vicinity
Application
S:IPlanning DepartmentlC D BlFLEX (FLD)\Pending caseslUp for the next CDBIMandalay 500 Sandpearl Resort Development
Agreement (T) 12.14.04 CDB - WW\Mandalay 500 Development Agreement Staff Reportfor 12,14.04 CDB.doc
Staff Report - Community Development Board - December 14, 2004 - Case DV A2004-00005
Page 5 of5
Hunter Hotel Company
Mandala Investments, LLC
470 and 500 Mandalay Avenue
470,489,490 and 495 Beach Drive
OWners:
Site:
.
.
I
,
.
<t'
!
Aerial Map
Cases:
FLD2004-09068
DV A2004-QOO05
Property
Size (Acres ):
9.77
PIN:
08/29/15/16398/000/0010,0060,
0090, 0430, 0490 & 0530
08/29/15/16380/000/0010
OS/29/15/57924/000/0010
Atlas Page:
267A
Owners:
Site:
.
PROJECT
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Location Map
Hunter Hotel Company
Mandala Investments, LLC
470 and 500 Mandalay Avenue
470, 489, 490 and 495 Beach Drive
Cases:
Property
Size (Acres) :
PIN:
A tlas Page:
.
1
FLD2004-D9068
DV A2004-QOO05
9.77
08/29/15/16398/000/0010,0060,
0090, 0430, 0490 & 0530
08/29/15/16380/000/0010
OS/29/15/57924/000/0010
267A
Owners:
Site:
Hunter Hotel Company
Mandala Investments, LLC
470 and 500 Mandalay Avenue
470, 489, 490 and 495 Beach Drive
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Zoning Map
Cases:
FLD2004-09068
DV A2004-QOO05
Property
Size (Acres) :
9.77
PIN:
08/29/15/16398/000/0010,00.60.,
0.0.90, 0.430, 0490 & 0.530.
0.8/29/15/16380./0.00/0010.
OS/29/15/57924/000/0010.
A tlas Page:
267A
I
Owners:
Site:
.
.
532
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Existing Surrounding Uses Map
Hunter Hotel Company
Mandalav Investments, LLC
470 and 500 Mandalay Avenue
470, 489, 490 and 495 Beach Drive
FLD2004-09068
DV A2004-00005
Cases:
Property
Size(Acres):
9.77
PIN:
08/29/15/16398/000/0010,0060.
0090, 0430, 0490 & 0530
08/29/15/16380/000/0010
OS/29/15/57924/000/0010
A tlas Page:
267A
r-
.
View of subject property looking southwest from
Mandalay Ave. & Ambler St. at existing hotel
View of subject property looking west from
Mandalay Ave. & San Marco St.
r
View of subject property looking east from San
Marco St. & Beach Dr.
View of subject property looking northwest from
Mandalay Ave. & Baymont St. at existing hotel
View of subject property looking west at 484
Mandalay Ave.
View of subject property looking southwest at
west side of Beach Drive near San Marco St.
470 and 500 Mandalay Avenue and 470,489,490 and 495 Beach Drive
FLD2004-09068/PL T2004-000 16/DV A2004-00005/SGN2004-09020 Page 1 of 3
,.
View looking at Belle Harbor development on View looking at Belle Harbor development on
northeast comer of Mandalay Ave. & Baymont St. southeast comer of Mandalay Ave. & Rockaway St
470 and 500 Mandalay Avenue and 470, 489, 490 and 495 Beach Drive
FLD2004-09068/PL T2004-000 16/DV A2004-00005/SGN2004-09020 Page 2 of 3
View of subject property looking west from
Baymont St. & Beach Dr.
~
View looking southwest at development on south
side of Rockaway St. west of Mandalay Ave.
.
(
.,
t
-
View looking at development on southwest comer
of Mandalay Ave. & Rockaway St.
~
-r~
View looking at Mandalay Park on northwest
comer of Mandalay Ave. & Rockaway St.
.
View looking southeast at existing development on
east side of Mandalay Ave. south of Ba~~tl' S,.t.
,-I'- ~ '
.~
'" ~
"',
View looking south at existing development on
west side of Mandalay Ave. south of Baymont St.
View looking southwest at Mandalay Beach Club
on south side of San Marco St.
.
View looking northeast at existing development on
east side of Mandalay Ave. north of San Marco St.
View looking west at existing development on west
side of Mandalay Ave. south of Baymont St.
. , IlIt II I ;-.., !'C'
I', 1_,
View looking southwest at existing development 011
west side of Mandalay Ave. south of San Marco St.
470 and 500 Mandalay Avenue and 470,489,490 and 495 Beach Drive
FLD2004-09068/PL T2004-000 16/DV A2004-00005/SGN2004-09020 Page 3 of 3
.
.
Wells, Wayne
From:
Sent:
To:
Cc:
Subject:
Wells, Wayne
Tuesday, December 28,200411 :16 AM
Goudeau, Cyndie
Diana, Sue; Akin, Pam; Dewitt, Gina; Tarapani, Cyndi; Gerlock, Chip; Norman, Lois
Development Agreement for January 20, 2005, City Council agenda
Cyndie -
Lois Norman suggested I send you this email to ensure the Development Agreement for the Sandpearl Resort
(JMC/Cheezum) project on Mandalay Avenue will be advertised for the January 20,2005, City Council agenda. Cyndi
Tarapani is on vacation and will return on Monday, January 3, 2005. A FYI Agenda Cover Memorandum will be prepared
on January 3, 2005, for this case. Gina DeWitt has prepared Resolution No. 05-04 for this case (attached).
If you have any questions, feel free to contact me.
Wayne
~
Resolution
OS-04.DOC
1
.
.
Wells, Wayne
From:
Sent:
To:
Cc:
Subject:
Wells, Wayne
Tuesday, December 28, 2004 11: 16 AM
Tarapani, Cyndi
Gerlock, Chip
FYI for Sandpearl Resort Project for January 20, 2005, City Council meeting
Cyndi -
The FYI Agenda Cover Memorandum for the Development Agreement for the Sandpearl Resort (JMC/Cheezum) project
must be prepared for the January 20,2005, City Council meeting on January 3,2005, when you return. I have prepared
draft language for the Agenda Cover Memorandum to see if it meets with your approval and just need to plug in the draft
language into FYI (attached). I cannot create the FYI document until you are ready (given the time allowed to be open in
FYI documents).
I have also drafted the memorandum to Bill Horne to be attached to the FYI Agenda Cover Memorandum. It is attached
for your review prior to attachment.
I have obtained a Resolution number for the Development Agreement from Gina DeWitt and have called Lois Norman to
reserve a spot on the agenda for this case. I have also sent an email to Cyndie Goudeau (copy to Sue Diana, Pam Akin
and Gina DeWitt) to hopefully ensure proper advertising of this case. Notification signs for this case for the January 20,
2005, City Council agenda were posted by the applicant prior to the CDB meeting on December 14, 2004 (affidavit of
posting received by Planning).
Wayne
~ [J
Memo to Bill Horne Information for FYI
for 1.20.05... Agenda Cov...
,
'"
.
.
TaraRani, Cyndi
From:
Sent:
To:
Cc:
Subject:
Akin, Pam
Tuesday, November 23,20048:12 AM
Arasteh, Mahshid; Tarapani, Cyndi
Dewitt, Gina
FW: Sandpearl
~
~
:ity developmentity development
agm.exh i.red... agm.pg5.red.d...
Mahshid, for your review
-----Original Message-----
From: Robert Greene [mailto:RGreene@gdslegal.com]
Sent: Tuesday, November 23, 2004 7:06 AM
To: Akin, Pam; Arasteh, Mahshid
Cc: Ed Armstrong (E-mail); John Hobach (E-mail); Jayne Sears (E-mail)
Subject: Sandpearl
Pam, attached are marked revisions to Section 2.03 (1) and Exhibit I.
Please confirm with Mahshid that these revisions are acceptable and I will
arrange for Jayne Sears to substitute pages in the packages previously
submitted. Thanks
Robert F. Greene
Greene & Schermer
1301 Sixth Avenue West, Suite 400
Bradenton, Florida 34205
phone: (941) 747-3025
fax: ( 941 ) 7 4 7 - 6937
email: rgreene@gdslegal.com
This message is intended only for the addressee and may contain information
that is PRIVILEGED and CONFIDENTIAL, and/or may contain ATTORNEY WORK
PRODUCT. If you are not the intended recipient, you are hereby notified
that any dissemination of this communication is strictly prohibited. If
you have received this communication in error, please erase all copies of
the message and its attachments and notify us immediately. Thank you.
<<city development agm.exh i.red.doc>> <<city development
agm.pg5.red.doc>>
1
,
...
Development Agreement
Page 1
ADOPTED
.
.
EXHIBIT I
C:\Documents and Settings\cyndUarapani\LocaJ Settings\Temporary Internet FUes\OLK2O\city development agm.exh i.red.doc
,
....
.
.
EXHIBIT I
Baymont Improvements
The Baymont Improvements include the following work to be done in the City right-of-way along
that portion of Baymont Street which is located to the west of Mandalay Avenue.
By THE CITY OF CLEARWATER
· None
By THE DEVELOPER
· Landscaping, and other streetscape improvements as depicted on site plan attached as
Exhibit 1-1.
· New street curbs as depicted on approved site plan, including realignment of the curb on the
north side of the street.
· Elimination of the five public parking spaces along the north side of the street in order to
accommodate the hotel vehicular entries as depicted on attached site plan.
. Creating a cul-de-sac at the western end of Baymont and repaving using pavers the same
as or similar to the pavers on Papaya Street and San Marco Street.
. New City concrete sidewalks as depicted on approved site plan, including the sidewalk from
the westerly end of the cul-de-sac heading west to the beach. Sidewalk finish to have the
same "shell" finish as other recently installed City sidewalks in the area, or a mutually
approved paver alternate.
· Adjustments to street lighting and/or other utilities deemed necessary as a result of the
above improvements.
~__Relocation of overhead utilities to underground.
. Traffic Operations Division has determined the need for an exclusive riqht turn lane. The City
will allow the Proiect to proceed per plan; however once the Proiect is completed the
Developer shall conduct periodic delay studies every four months at the intersection of
Baymont Street and Mandalay Avenue for one veal' after the date of the Construction
Completion Certificate issued bv the City. The study shall analyze the delay for each
eastbound movement and the impacts on the intersection as well as count the pedestrian
traffic on all four approaches of the intersection. The study shall be submitted to "Traffic
Operations" for review. If it is determined by "Traffic Operations" that the riqht turn lane is
needed then the Developer shall install the lane at its expense.
Development Agreement
Page 2
ADOPTED
C:\Documents and Settings\cyndi.tarapani\Local Settings\Temporary Internet Files\OLK2O\citydevelopment agm.exh Lred.doc
..
....
.
.
Beach Club - not to exceed 160 Beach Club Outside Memberships
subject to adjustment as provided below.
Commercial/Retail - not more than 11,000 square feet of floor area, not
more than 3,000 sq. ft. of which may be restaurant.
Private parking - a minimum of 4;;U~ parking spaces are to be provided
based on the following formula:
1.5 spaces for each condominium unit
.715 spaces for each hotel unit
2,7 spaces for each 1,000 square feet of commercial use
1.0 spaces for each 5 Beach Club Outside Memberships
In the event the number of condominium or hotel units or the square
footage of commercial use are reduced, the parking requirements shall be
reduced in accordance with the above formula. In the event total parking
spaces provided is less than the required minimum reduced amount
approved by the COB (431 spaces), Developer shall reduce Beach Club
Outside Memberships by 5 members for each space not provided and in
the event total parking spaces provided are more than the required
minimum reduced amount approved by the COB (431 spaces), Developer
may increase Beach Club Outside Memberships by 5 members for each
additional space provided.
2. Nothing shall preclude the Developer from developing or operating all or portions
of the Project elements using any ownership format permitted under Florida
Statutes including fee simple, condominium, timeshare or fractional ownership
formats:
3. Up to twenty-five percent (25%) of the hotel units may be suites with kitchens,
including all typical kitchen equipment and amenities. In addition, partial kitchens
or mini-kitchens may be allowed.
4. The following covenants and restrictions shall be applicable to all hotel units within
the Project regardless of ownership formats utilized. Notwithstanding any other
provision of this Agreement, no occupancy in excess of thirty (30) days per stay shall
be permitted in any hotel unit which is developed as a part of the Project. In addition,
no hotel unit shall be used as a primary or permanent residence and a minimum of
200 hotel units shall be required to be available to transient hotel guests for no fewer
than 330 days in any calendar year, subject to force majeure events making such
rooms unavailable for occupancy. In order to assure the high quality resort
experience called for under this Agreement, a minimum of 200 hotel units shall be
operated by a single hotel operator who shall meet the requirements as to operating
standards set forth in Exhibit B-1 of this Agreement. Prior to the issuance of a
certificate of occupancy for the resort hotel, the Developer shall record a covenant
and restriction which is enforceable by the City, substantially in accordance with
Exhibit E. limiting the use and operation of the hotel units, implementing this
paragraph,
As a condition of the allocation of hotel units from the Hotel Unit Pool pursuant to the
designation of Clearwater Beach as a Community Redevelopment District pursuant to the
Pinellas County Planning Council's Rules, the Developer shall comply with
.
.
Wells, Wayne
From:
Sent:
To:
Subject:
Tarapani, Cyndi
Tuesday, November 23, 2004 1 :06 PM
Wells, Wayne
FW: Sandpearl
~
~
city development city development
agm.exh Lred... agm.pgS.red.d...
please review for any concerns and file with site plan info.
thanks.
Cyndi Tarapani
Planning Director
(727)562-4547
cyndi.tarapani@myclearwater.com
-----Original Message-----
From: Akin, Pam
Sent: Tuesday, November 23, 2004 8:12 AM
To: Arasteh, Mahshidi Tarapani, Cyndi
Cc: Dewitt, Gina
Subject: FW: Sandpearl
Mahshid, for your review
-----Original Message-----
From: Robert Greene [mailto:RGreene@gdslegal.com]
Sent: Tuesday, November 23, 2004 7:06 AM
To: Akin, Pami Arasteh, Mahshid
Cc: Ed Armstrong (E-mail) i John Hobach (E-mail) i Jayne Sears (E-mail)
Subject: Sandpearl
Pam, attached are marked revisions to Section 2.03 (1) and Exhibit I. Please confirm
with Mahshid that these revisions are acceptable and I will arrange for Jayne Sears to
substitute pages in the packages previously submitted. Thanks
Robert F. Greene
Greene & Schermer
1301 Sixth Avenue West, Suite 400
Bradenton, Florida 34205
phone: (941) 747-3025
fax: ( 941) 747 - 6937
email: rgreene@gdslegal.com
This message is intended only for the addressee and may contain information that is
PRIVILEGED and CONFIDENTIAL, and/or may contain ATTORNEY WORK PRODUCT. If you are not the
intended recipient, you are hereby notified that any dissemination of this communication
is strictly prohibited. If you have received this communication in error, please erase
all copies of the message and its attachments and notify us immediately. Thank you.
<<city development agm.exh i.red.doc>> <<city development agm.pg5.red.doc>>
,. ..
.
.
Wells, Wayne
From:
Sent:
To:
Cc:
Subject:
Arasteh, Mahshid
Monday, November 22,20043:40 PM
Akin, Pam; Brumback, Garry
Rice, Scott; Wells, Wayne; Quillen, Michael; Tarapani, Cyndi
Sandpearl
~
SandpearlSection2,
03.1.doc
The last paragraph of Section 2.03.1 of the Development Agreement should read as attached
so that it can match the parking study dated 11/18/04 that was revised generally in
accordance with the conversation that Wayne Wells and Scott had with FDC. The parking
study adequately addresses the parking needs for the proposed development and is in
accordance with Engineering's review of the project.
The current language can cause a potential problem with the method of calculating the
number of allowable "outside beach club memberships". The 14th draft of the DVA states
that outside beach club memberships can be increased if the number of parking spaces
exceeds the required minimum amount as defined by 428 spaces. The current design includes
431 spaces, therefore the beach club outside membership could immediately be increased by
15 members. The DVA should reference the number of approved parking spaces (431) in the
ratio for determining increased outside beach club memberships.
Cyndi, Wayne pls let us know if you disagree.
Thanks
Mahshid D. Arasteh, P.E.
Public Works Administrator
727-562-4757
-----Original Message-----
From: Akin, Pam
Sent: Monday, November 22, 2004 8:29 AM
To: Tarapani, Cyndi; Arasteh, Mahshid; Campos, Geraldine; Brumback,
Garry; Rice, Scott; Wells, Wayne
Cc: Dewitt, Gina; Goudeau, Cyndie
Subject: FW: Sandpearl
I think this is the Last draft! please look particularly at 32.03 on page 12 which
addresses the parking requirement. I want to make sure we are all in alignment on how
this is addressed.
-----Original Message-----
From: Robert Greene [mailto:RGreene@gdslegal.com]
Sent: Saturday, November 20, 2004 7:49 AM
To: Akin, Pam
Cc: Ed Armstrong (E-mail); John Hobach (E-mail); Mike Cheezem (E-mail)
Subject: Sandpearl
Pam, attached is revised draft 14 with the revision to Section 2.03 we discussed. Please
call with if we need to discuss. Thanks
Robert F. Greene
Greene & Schermer
1301 Sixth Avenue West, Suite 400
Bradenton, Florida 34205
phone: (941) 747-3025
, ".
fax: (941) 747-6937
email: rgreene@gdslegal.com
.
.
This message is intended only for the addressee and may contain information that is
PRIVILEGED and CONFIDENTIAL, and/or may contain ATTORNEY WORK PRODUCT. If you are not the
intended recipient, you are hereby notified that any dissemination of this communication
is strictly prohibited. If you have received this communication in error, please erase
all copies of the message and its attachments and notify us immediately. Thank you.
<<City Development Agt.14-13.red.doc>>
2
.
.
Wells, Wayne
From:
Sent:
To:
Subject:
Arasteh, Mahshid
Monday, November 22, 2004 3:21 PM
Tarapani, Cyndi; Wells, Wayne
FW: Right Turn Lane Analysis and Recommendation at Baymont and Mandalay
Importance:
High
Mahshid D. Arasteh, P.E.
Public Works Administrator
727-562-4757
mnOriginal Message-----
From: Arasteh, Mahshid
Sent: Monday, November 22,20043:20 PM
To: Akin, Pam; Brumback, Garry
Cc: Bertels, Paul; Rice, Scott; Elbo, Bennett; Quillen, Michael
Subject: Right Turn Lane Analysis and Recommendation at Baymont and Mandalay
Importance: High
u
baymontrightturnla
ne.doc
The attached document contains traffic operations' analysis of the study completed by
Florida Design Consultants since traffic oparations has concluded that a right turn lane is required,the
following is a suggested language to be inserted into the development agreement.
"Traffic Operations Division has determined the need for an exclusive right turn lane. The city will
allow the development to proceed per plan; however once the project is completed the owner shall
conduct periodic delay studies every four months at the intersection of Baymont Street and Mandalay
Avenue. The study shall analyze the delay for each eastbound movement and the impacts on the
intersection as well as count the pedestrian traffic on all four approaches of the intersection. The
study shall be submitted to "Traffic Operations" for review. If it is determined by "Traffic Operations"
that the right turn lane is needed then the developer shall install the lane at their expense",
Mahshid D. Arasteh, P.E.
Public Works Administrator
727-562-4757
.
.
Baymont Street and Mandalay Avenue Right Turn Lane Study
The conclusion of the report by Florida Design Consultants is that the intersection of
Baymont and Mandalay will handle the additional 120 eastbound right turning
vehicles at a LOS C plus an additional 33 other vehicles eastbound. This new traffic
is generated by the hotel and condo development that is proposed at this location.
However, the report does not analyze how the 120 additional right turning vehicles
will interact with the existing 42 pedestrians in direct conflict with the right turning
traffic or with the indirect impact of the existing 110 pedestrians on the west
approach. With the existing pedestrian traffic and the new volumes of vehicular
traffic there will be the potential of 2,5 pedestrians in conflict with 2 vehicles every
minute during the peak hour. The breakdown is .7 pedestrians on the south
approach and 1.8 pedestrians on the west approach of the intersection.
Under ideal conditions when an eastbound vehicle is stopped at the stop bar they
will have 1.8 pedestrians to wait for before a right turn on red can be made. The
crossing time is 17.1 seconds (60 feet of distance/3.5 fps walking rate) per
pedestrian x 1.8 pedestrians per minute for a total of 30.78 seconds of delay before
a right turn on red can be made. This is assuming the pedestrians are not crossing
exactly at the same time. For safety reasons this analysis cannot assume that both
pedestrians will cross the same time each minute. Once the green signal comes on
there will be .7 pedestrians each minute crossing x a crossing time of 20.7 seconds
(13,7 seconds clearance + 7 seconds walk) for a total of 14.5 seconds of delay
before the vehicle can safely make the right turn.
To summarize, a vehicle making an eastbound right turn on red will have a delay of
30.78 seconds while a vehicle making a right turn on green will have a delay of 14.5
seconds. When the timing split for Baymont Street is in a range of 20 to 40 seconds
then it becomes clear that a delay per vehicle of 14.5 seconds is critical. This does
not include any increase in pedestrian traffic, as the consultant study does not
project those values. However, it is safe to assume there will be a significant
increase in pedestrian traffic with the new condos and new hotel development.
Many people will cross Mandalay to access the Outback Restaurant as well as other
venues on the east side of Mandalay Avenue. In the near future with the Pelican
Walk parking garage there will be increased pedestrian crossings of Mandalay
Avenue to access the shops at the new Hotel as well as the beach access. To
accommodate the increased pedestrian traffic an exclusive right turn lane is
absolutely critical to maintain some capacity at the intersection for eastbound traffic.
Development Agreement
Page 1
ADOPTED
.
.
EXHIBIT I
S:\Planning Department\C 0 B\FLEX\Pending cases\Up fOf the next CD8\Mandalay 500 Sand pearl Resort Development Agreement (T) 12.14.04 coe - WW\Revised Exhibit I 11.23.04.doc
.
.
EXHIBIT I
Baymont Improvements
The Baymont Improvements include the following work to be done in the City right-of-way along
that portion of Baymont Street which is located to the west of Mandalay Avenue.
By THE CITY OF CLEARWATER
· None
By THE DEVELOPER
. Landscaping, and other streetscape improvements as depicted on site plan attached as
Exhibit 1-1.
. New street curbs as depicted on approved site plan, including realignment of the curb on the
north side of the street.
. Elimination of the five public parking spaces along the north side of the street in order to
accommodate the hotel vehicular entries as depicted on attached site plan,
. Creating a cul-de-sac at the western end of Baymont and repaving using pavers the same
as or similar to the pavers on Papaya Street and San Marco Street.
. New City concrete sidewalks as depicted on approved site plan, including the sidewalk from
the westerly end of the cul-de-sac heading west to the beach. Sidewalk finish to have the
same "shell" finish as other recently installed City sidewalks in the area, or a mutually
approved paver alternate.
. Adjustments to street lighting and/or other utilities deemed necessary as a result of the
above improvements.
. Relocation of overhead utilities to underground.
. Traffic Operations Division has determined the need for an exclusive riqht turn lane. The City
will allow the Proiect to proceed per plan; however once the Proiect is completed the
Developer shall conduct periodic delay studies every four months at the intersection of
Baymont Street and Mandalay Avenue for one year aner the date of the Construction
Completion Certificate issned by the City. The study shall analyze the delay for each
eastbound movement and the impacts on the intersection as well as count the pedestrian
traffic on all four approaches of the intersection. The study shall be submitted to "Traffic
Operations" for review. If it is determined by "Traffic Operations" that the riqht turn lane is
needed then the Developer shall install the lane at its expense.
Development Agreement
Page 2
ADOPTED
S:\Planning Department\C 0 B\FLEX\Pending cases\Up for the next CDB\Mandalay 500 Sand pearl Resort Development Agreement (T) 12.14.04 COB. WW\Revised Exhibit I 11.23.04.doc
.
.
Beach Club - not to exceed 160 Beach Club Outside Memberships
subject to adjustment as provided below.
Commercial/Retail - not more than 11,000 square feet of floor area, not
more than 3,000 sq, ft. of which may be restaurant.
Private parking - a minimum of 4;li28 parking spaces are to be provided
based on the following formula:
1.5 spaces for each condominium unit
.715 spaces for each hotel unit
2.7 spaces for each 1,000 square feet of commercial use
1.0 spaces for each 5 Beach Club Outside Memberships
In the event the number of condominium or hotel units or the square
footage of commercial use are reduced, the parking requirements shall be
reduced in accordance with the above formula. In the event total parking
spaces provided is less than the required minimum reduced amount
approved by the CDB (431 spaces), Developer shall reduce Beach Club
Outside Memberships by 5 members for each space not provided and in
the event total parking spaces provided are more than the required
minimum reduced amount approved by the CDB (431 spaces), Developer
may increase Beach Club Outside Memberships by 5 members for each
additional space provided.
2. Nothing shall preclude the Developer from developing or operating all or portions
of the Project elements using any ownership format permitted under Florida
Statutes including fee simple, condominium, timeshare or fractional ownership
formats"
3. Up to twenty-five percent (25%) of the hotel units may be suites with kitchens,
including all typical kitchen equipment and amenities. In addition, partial kitchens
or mini-kitchens may be allowed.
4. The following covenants and restrictions shall be applicable to all hotel units within
the Project regardless of ownership formats utilized. Notwithstanding any other
provision of this Agreement, no occupancy in excess of thirty (30) days per stay shall
be permitted in any hotel unit which is developed as a part of the Project. In addition,
no hotel unit shall be used as a primary or permanent residence and a minimum of
200 hotel units shall be required to be available to transient hotel guests for no fewer
than 330 days in any calendar year, subject to force majeure events making such
rooms unavailable for occupancy. In order to assure the high quality resort
experience called for under this Agreement, a minimum of 200 hotel units shall be
operated by a single hotel operator who shall meet the requirements as to operating
standards set forth in Exhibit B-1 of this Agreement. Prior to the issuance of a
certificate of occupancy for the resort hotel, the Developer shall record a covenant
and restriction which is enforceable by the City, substantially in accordance with
Exhibit E, limiting the use and operation of the hotel units, implementing this
paragraph.
As a condition of the allocation of hotel units from the Hotel Unit Pool pursuant to the
designation of Clearwater Beach as a Community Redevelopment District pursuant to the
Pinellas County Planning Council's Rules, the Developer shall comply with
III
. .
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Tarapani, Cyndi
From:
Sent:
To:
Cc:
Subject:
John Hobach Uohnh@jmcdev.com]
Wednesday, November 10,20049:41 AM
Tarapani, Cyndi
Bob Greene (E-mail); Ed Armstrong (E-mail); Ed Mazur (E-mail)
JMC Hotel (Sandpearl Resort)1
> Cyndi,
>
> This is an update to your Nov. 5 email.
>
> 1. Parking Study. We have rewritten the parking study to be organized and
presented in a format based upon recent direction from the City. Based upon
this new format, it is my understanding that we will no longer need
additional studies of comparable beach clubs (although we now have two
additional studies if needed) .
>
> 2. Signs. We will locate the hotel signs at least 5' behind property
line. Note that we still are planning on having a planter wall, and a
portion of our entry fountain in the right-of-way. /
> .
~> 3. Landscaping. We will provide costs of all improvements within the
right-of-way areas at the DRC meeting.
>
~AL/> 4. Vacation of Beach Drive. We now have the letter of no objection from
~r Verizon, and will bring that to the DRC meeting.
>
~O > 5. Additional Land. We are not going to pursue that option at his point
r! in time, and understand that if land is added in the future, it will
J). require a similar approval process.
>
~Il/> 6. Development Rights. We have prepared a Density Table that more clearly
~ describes the different density issues, and will bring that to the DRC
meeting.
>
~J/~ 7. Exhibit D (Schedule). We will revise and clarify this schedule, which
LlV-will be a part of the resubmittal.
>
> 8. Parking Study. We have rewriiten the parking study, which now includes
a summary chart, which will also be incleded on the site plan as part of
resubmittal. We will bring the revised parking study to the DRC meeting.
>
>
> Thanks again for your efforts in helping us prepare our submittal
packages appropriately. Please let me know if you have any questions
regarding above.
1
.
.
Tarapani, Cyndi
From:
Sent:
To:
Subject:
John Hobach Uohnh@jmcdev.com]
Monday, November 08,2004 9:13 AM
Tarapani, Cyndi
RE: JMC Hotel
Thank you Cyndi. Your list looks very accurate and very clear. I am going to forward it to
our team. One note regarding #5 below: we decided not to add any language about
"additional land". We understand that we will have to go back through the process if we do
add land, but that currently is not likely.
-----Original Message-----
From: Cyndi.Tarapani@myClearwater.com
[mailto:Cyndi.Tarapani@myClearwater.com]
Sent: Friday, November 05, 2004 4:26 PM
To: Wayne.Wells@myClearwater.com; Chip.Gerlock@myClearwater.com
Cc: Scott.Rice@myClearwater.com; Pam.Akin@myClearwater.com; John Hobach
Subject: JMC Hotel
I am writing to confirm several items that were discussed at our meeting this morning with
JMC and their representatives. Please include these in the staff comments from Planning as
appropriate and be aware of them in general, taking any actions needed to effect these. I
am not including in this list the items that Engineering desires the developer to address
but there may be some overlap on this list of issues of interest to both departments.
1. Parking study-JMC will provide additional studies of comparative beach clubs-to be
provided prior to DRC meeting.
"Outside memberships" in the beach club to be defined in definition section of DA by
a specific geographic area in close proximity to site.
2. Signs-JMC agrees that all signs will be out of right-of-way and meeting 5' setback.
To be part of DRC resubmittal.
3. Landscaping on Mandalay and Baymont-JMC to provide cost estimate of landscaping at
DRC meeting. This information to be checked by Public Works and total costs to be
included in staff report, quantifying the developer's obligation in exchange for density
pool consideration.
4. Right-of-way vacation-I previously extended the deadline for receipt of letters of
no objection for the vacation application to the DRC meeting or before. This remains in
effect and if not met by the developer will be a sufficiency issue-this has been told to
developer for quite some time and is not new information.
5. New Site plan condition and development agreement statement-JMC to write language
for City to review re their ability to add land to the site WITHOUT going back to COB.
The language must state that the additional land does not increase density or intensity
and shall only be used for parking. Can be part of DRC resubmittal.
6. Development Rights-JMC to prepare table more fully documenting the existing units,
Gray settlement units, density pool units, JMC's hotel units used to convert to commercial
FAR, etc. This table will be inserted into the project book under the Redevelopment
Parcels tab AND on the site plan. Can be part of DRC resubmittal-but would prefer to
review prior to that to make sure it is clear and City is in agreement.
7. JMC to revise Exhibit 0 of Development Agreement, Schedule to state that project
schedule is subject to specific schedule details in appropriate DA section, and that those
outside dates are the dates that the Development Order will use. Can be part of DRC
resubmittal.
1
8. JMC to show the reqUillt parking for each use in the p~ect-this information to
provided in Traffic Study in the project book AND on the site plan. To be done by DRC
meeting.
be
John-I think this captures the issues that Planning needs addressed from today's
Our full DRC comments on the site plan will go out to you on Monday, November 8.
copied you for your information and if I have misstated anything, please call me
resolve. Thanks so much for your time.
meeting.
I have
so we can
Cyndi Tarapani
Planning Director
(727)562-4547
cyndi.tarapani@MyClearwater.com
2
.
.
.!!!!pani, Cyndi
From:
Sent:
To:
Cc:
Subject:
Tarapani, Cyndi
Friday, November 05, 2004 4:26 PM
Wells, Wayne; Gerlock, Chip
Rice, Scott; Akin, Pam; 'jhobach@jmcdev.com'
JMC Hotel
I am writing to conftnn several items that were discussed at our meeting this morning with JMC and their
representatives. Please include these in the staff comments from Planning as appropriate and be aware of them in
general, taking any actions needed to effect these. I am not including in this list the items that Engineering desires
the developer to address but there may be some overlap on this list of issues of interest to both departments.
1. Parking study-JMC will provide additional studies of comparative beach clubs-to be provided prior to DRC
meeting.
"Outside memberships" in the beach club to be defined in definition section of DA by a specific
geographic area in close proximity to site.
2. Signs-JMC agrees that all signs will be out of right-of-way and meeting 5' setback. To be part ofDRC
resubmittal.
3. Landscaping on Mandalay and Baymont-JMC to provide cost estimate of landscaping at DRC meeting,
This information to be checked by Public Works and total costs to be included in staff report, quantifying the
developer's obligation in exchange for density pool consideration.
4. Right -of-way vacation- I previously extended the deadline for receipt of letters of no objection for the
vacation application to the DRC meeting or before. This remains in effect and if not met by the developer will be
a sufficiency issue-this has been told to developer for quite some time and is not new information.
5. New Site plan condition and development agreement statement-JMC to write language for City to review re
their ability to add land to the site WITHOUT going back to CDB. The language must state that the additional
land does not increase density or intensity and shall only be used for parking. Can be part of DRC resubmittal.
6. Development Rights-JMC to prepare table more fully documenting the existing units, Gray setdement
units, density pool units, JMC's hotel units used to convert to commercial FAR, etc. This table will be inserted into
the project book under the Redevelopment Parcels tab AND on the site plan. Can be part of DRC resubmittal-
but would prefer to review prior to that to make sure it is clear and City is in agreement.
7. JMC to revise Exhibit D of Development Agreement, Schedule to state that project schedule is subject to
specific schedule details in appropriate DA section, and that those outside dates are the dates that the
Development Order will use. Can be part ofDRC resubmittal.
8. JMC to show the required parking for each use in the project-this information to be provided in Traffic
Study in the project book AND on the site plan. To be done by DRC meeting.
John-I think this captures the issues that Planning needs addressed from today's meeting. Our full DRC comments
on the site plan will go out to you on Monday, November 8. I have copied you for your information and if I have
misstated anything, please call me so we can resolve. Thanks so much for your time.
Cyndi T arapani
Planning Director
1
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Page 1 of 4
Tarapani, Cyndi
From: Phillips, Sue
Sent: Wednesday, October 06,2004 10:33 AM
To: Arasteh, Mahshid; Tarapani, Cyndi; Rice, Scott; Quillen, Michael; Campos, Geraldine; Dewitt, Gina
Cc: Wilson, Denise; DuPont, Kimberly; Haines, Angel; Manni, Diane; Katsougrakis, Dina
Subject: RE: City Development Agreement
I have talked to Cheezem's staff assistant - there is no meeting on Friday, October 8th. We
have tentatively scheduled the following dates all beginning at 8:30 a.m. in the large conference
room at City Hall.
Friday, October 22
Friday, November 5
Friday, November 19
Friday, December 3
I will let you know as soon as these dates are confirmed by Cheezem.
-----Original Message-----
From: Arasteh, Mahshid
Sent: Wednesday, October 06,2004 8:18 AM
To: Phillips, Sue; Tarapani, Cyndi; Rice, Scott; Quillen, Michael
Subject: FW: City Development Agreement
Thanks Cyndi. Sue,! will not be here this Friday. If there is a meeting pIs let Scott know.
Thanks
Mahshid D. Arasteh, P.E.
Public Works Administrator
727 -562-4757
-----Original Message-----
From: Tarapani, Cyndi
Sent: Tuesday, October 05,20043:32 PM
To: Arasteh, Mahshid
Subject: RE: City Development Agreement
I think that Garry is supposed to be setting up the meeting for next week. Thanks.
Cyndi T arapani
Planning Director
(727)562-4547
cyndi.tarapani@MyClearwater,com
-----Original Message-----
From: Arasteh, Mahshid
10/6/2004
.
.
Tarapani, Cyndi
From:
Sent:
To:
Cc:
Subject:
Tarapani, Cyndi
Thursday, October 07, 2004 9:56 AM
Arasteh, Mahshid
Brumback, Garry
JMC Clearwater Beach Hotel project
Mahshid-as you know, the developer's primary contribution in exchange for the City allowing the density pool on
this site is the developer's construction of the streetscape of Mandalay and Baymont. After your staff has reviewed
it, I would like to discuss it with you prior to our meeting with the developer's team on Oct. 22.
In addition, I think it would be helpful for your staff to estimate the dollar value of these improvements for use in
the staff report justifying the improvement. The DRC meeting on this project is November 12 so it would be
helpful to have the information by then for incorporation into the staff report. The cost estimate is not meant to
be a limit on the developer's contribution but only an estimate of the value of the improvement so that an
evaluation can be made by the CDB and City Council on the density pool. Thanks.
Cyndi Tarapani
Planning Director
(727)562-4547
cyndi. tarapani@MyClearwater.com
1
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.
.
Tarapani, Cyndi
From:
Sent:
To:
Cc:
Subject:
Arasteh, Mahshid
Thursday, September 16, 2004 2:03 PM
Akin, Pam; Brumback, Garry; Tarapani, Cyndi
Petrie, Todd
FW: JMC REDEVELOPMENT OF CLEARWATER BEACH HOTEL PROPERTY
Attached, pis find the list of requirements by PWA for relocating PS#11 electrical gear.
Please include these in the agreement with CBR development LLC as appropriate.
Thanks
Mahshid D. Arasteh, PE.
Public Works Administrator
727-562-4757
-----Original Message--m
From: Petrie,TocId
Sent: Thursday, September 16, 2004 1:14 PM
To: Arasteh, Mahshid
Cc: Neff, Andrew; Manni, Diane
Subject: JMC REDEVELOPMENT OF CLEARWATER BEACH HOTEL PROPERTY
~
JMC
,OPMENT OF CLEft
Good Afternoon,
Please find attached Utilities comments regarding the relocation of Ps# 11 electrical gear. Please let me know if there
are any questions. Thanks for your help.
Todd
1
.
.
JMC REDEVELOPMENT OF CLEARWATER BEACH HOTEL PROPERTY
On Wednesday, September 15,2004; the Utilities and Engineering Department met with
representatives of JMC to discuss lift station 11 and possible options for improvements
that will augment the development. The lift station is located at the comer of Mandalay
Avenue and Baymont Street. The proposed entrance to the resort is also located at the
intersection. The development's primary concern is the visual approach to the resort and
the lift station elevated control panel deck that appears to be in the view of the resort.
Utilities presented several options, including fencing or a building, to mask the control
panel deck but the development stated that any structure in the existing location would
detract from the view of the resort. The resort proposed to incorporate the control panel
and electrical equipment into a room near the front of the building facing the lift station
wet well.
Utilities concerns and issues are as follows:
1. New electrical equipment should be provided. This will allow continued operation of
the lift station uninhibited until the new equipment is ready to be placed in service.
2. Spare conduits will be installed for use as needed by the City.
3. Easements will be granted to the City over the building room and conduit corridor.
4. All work will be approved by the City before construction. All permits must be paid
for and obtained by the development.
5. The electrical control room must be of sufficient size to allow future equipment
improvements and accommodate at least two electricians working in the area. The
room should either have a window or the resort understand the door will remain open
when needed, so maintenance staffhas line of site view to the wet well. The room
must be climate controlled.
6. Locks for the room will be City standard. The City cannot provide City keys to
private entities.
7. An HOA (Hand, Off, Automatic) panel must be at the wet well area for control of the
station.
8. The development will provide backup generator power on the line side ofthe power
feed for the lift station.
9. A generator receptacle must be provided at the lift station.
10. There must be an area light to illuminate the lift station area.
11. There cannot be any overhead restrictions in the lift station area.
12. A second odor control unit is suggested to help ensure that odors to not escape the lift
station area.
Additional suggested contract language:
Developer agrees that the lift station site is a valuable City asset and maintenance must
be performed, as the City deems necessary to ensure the proper operation. Maintenance
may include use of heavy equipment such as a vaccon, crane, generator etc. Developer
will not inhibit any activities the City deems necessary to ensure operation of the lift
station.
I- ----
.
.
Tarapani, Cyndi
From:
Sent:
To:
Subject:
Arasteh, Mahshid
Wednesday, September 15,200412:58 PM
Brumback, Garry; Akin, Pam; Tarapani, Cyndi
RE:
Met with Mike Cheezum and the entourage today. Our utilities folks agreed to moving the electrical panel and associated
electrical ties to inside Cheezum's building. The Odor control unit will remain outside the building in the current location.
I will send you ailst Of PWA requlremenfs for installation, access and maintenance as soon as finalized. Cheezum knows
that the detailed engineering drawings are a must and that both Engineering and Public Utilities need to be involved in
every step of the review. Overall a good meeting.
Mahshid D. Arasteh, PE.
Public Works Administrator
727-562-4757
-----Original Message-----
From: Brumback, Garry
Sent: Wednesday, September 15, 20048:52 AM
To: Akin, Pam; Tarapani, Cyndi; Arasteh, Mahshid
Subject: RE:
OK...thanks. I talked to Mike Cheezum yesterday afternoon and 11ahshid has set a meeting
between Cheezum's engineers and our staff to try and work a solution that all can live with.
Mike told me during the conversation that whatever we had to do to reduce the proftle of the
lift station he would fund. I would really like to hold him to this.
Thanks,
Garry Brumback
Assistant City Manager
(727) 562-4053
-----Original Message-----
From: Akin, Pam
Sent: Wednesday, September 15, 20048:19 AM
To: Tarapani, Cyndi; Arasteh, Mahshid; Brumback, Garry
Subject: RE:
This may be a aimed at the lift station
-----Origi nal Message-----
From: Tarapani, Cyndi
Sent: Tuesday, September 14, 20045:22 PM
To: Akin, Pam; Arasteh, Mahshid; Brumback, Garry
Subject: RE:
don't we put all of our utilities underground? City does only water and sewer. Utilities by others are
above ground-ie, phone, power, cable, etc.
Cyndi Tarapani
Planning Director
(727) 562-4547
cyndi. tarapani@MyClearwater.com
1
I
.
.
-----Original Message-----
From: Akin, Pam
Sent: Tuesday, September 14, 2004 5:05 PM
To: Arasteh, Mahshid; Tarapani, Cyndi; Brumback, Garry
Subject:
3. Required Public Facilities. In addition to the obligations of the City and the
Developer set out in Article 5 of this Agreement, the Water Utilities Department
of the City will provide potable water service and sanitary sewer service to the
Project. All City utilities will be inst:Jlled underground ':,here possible.
I struck the last line. Are we willing to agree to underground?
2
.
.
Tarapani, Cyndi
From:
Sent:
To:
Cc:
Subject:
Dunbar, Kevin E.
Wednesday, September 15,200412:37 PM
Akin, Pam; Morris, William D.
Tarapani, Cyndi; Brumback, Garry
RE: Cheezem-Clearwater Beach Resort
Pam...we currently do maintain this area.
-----Original Message-----
From: Akin, Pam
Sent: Wednesday, September 15, 20048:57 AM
To: Morris, William D.; Dunbar, Kevin E.
Cc: Tarapani, Cyndi; Brumback, Garry
Subject: Cheezem-Clearwater Beach Resort
The Developer is proposing to give the City approximately. 700 ft of beach frontage (roughly 1/2 of the land between
mean high water and the uplands- there will be an Exhibit which is more specific) to the west of their parcel, in lieu of the
recreation land impact fee and as consideration for the hotel pool units. Bill and Kevin I need info from you. Do we
currently maintain this stretch of beach? Lifeguards, beach cleaning, garbage cans etc.
1
.
.
Tarapani, Cyndi
From:
Sent:
To:
Cc:
Subject:
Morris, William D.
Wednesday, September 15, 2004 9:13 AM
Akin, Pam; Dunbar, Kevin E.
Tarapani, Cyndi; Brumback, Garry
RE: Cheezem-Clearwater Beach Resort
Pam, We (Marine and Aviation) provide beach guards.
As a side issue, I believe there is there is an unused waiver agreement for an access corridor for water craft rentals that
goes back to the Gray family when the Hotel was the Holiday House. I involved riparian rights of access. Will this nullify
the waiver agreement? Bill M
-----Original Message-----
Fnnn: ~n,Pam
Sent: Wednesday, September 15, 20048:57 AM
To: Morris, William D.; Dunbar, Kevin E.
Cc: Tarapani, Cyndi; Brumback, Garry
Subject: Cheezem-Clearwater Beach Resort
The Developer is proposing to give the City approximately. 700 ft of beach frontage (roughly 1/2 of the land between
mean high water and the uplands- there will be an Exhibit which is more specific) to the west of their parcel, in lieu of
the recreation land impact fee and as consideration for the hotel pool units. Bill and Kevin I need info from you. Do
we currently maintain this stretch of beach? Lifeguards, beach cleaning, garbage cans etc.
1
.
.
Tarapani, Cyndi
From:
Sent:
To:
Cc:
Subject:
Akin, Pam
Tuesday, September 14,20045:03 PM
Garriott, Kevin
Tarapani, Cyndi; Kronschnabl, Jeff
RE: Cheezem
It was my understanding that you all had met and were in agreement as to what improvements could be met.
-----Original Message-----
From: Garriott, Kevin
Sent: Tuesday, September 14, 20044:55 PM
To: Akin, Pam
Cc: Tarapani, Cyndii Kronschnabl, Jeff
Subject: RE: Cheezem
Construction seaward of the CCCL would take approval from the Department of Environmental Protection and City
Zoning before Construction permits.
Construction in the V flood zone needs to meet FEMA flood zone construction requirements as outlined in City
Ordinances Chapter 51. (basically on pilings with blowout walls for any enclosure).
Does that answer your question here? If not, please let me know. I will tell you what I know.
-----Original Message-----
From: Akin, Pam
Sent: Tuesday, September 14, 2004 1:52 PM
To: Garriott, Kevini Tarapani, Cyndii Brumback, Garry
Subject: Cheezem
9. Approval of Construction Bevond CCCL and/or in V Zone. The City acknowledges that
for Developer to provide a quality beach resort, it will be necessary for Developer to
construct and operate certain improvements below the base flood elevation and/or
seaward of the Coastal Construction Control Line, such improvements to include pool
(s), spa(s), decks, pool bathrooms, pool bar/grill, boardwalks, landscaping and
associated improvements and facilities (the "Amenity Improvements") as further
described on the attached Exhibit L. The City shall cooperate with Developer in
obtaining all necessary Permits for the Amenity Improvements and agrees that such
Amenity Improvements are necessary requirements for a quality beach resort hotels.
kEVIN, DOES THIS LANGUAGE REFLECT YOUR UNDERSTANDING OF WHERE WE ARE?
I DO NOT HAVE AN EXHIBIT L YET.
1
.
.
Tarapani, Cyndi
From:
Sent:
To:
Cc:
Subject:
Arasteh, Mahshid
Tuesday, September 14,20042:22 PM
Akin, Pam
Tarapani, Cyndi; Brumback, Garry
Cheezem
Sunshine Mall was the only case I remember where we calculated the impact fees that way. In that case, for the 3
residential developments at Sunshine Mall, their credits exceeded the new impact fees so they didn't have to pay any. If
they had been calculated per Appendix A in the code they would have had to pay $6000 in water impact fees and
$11,250 for sewer.
Mahshid D. Arasteh, P.E.
Public Works Administrator
727-562-4757
-----Original Message-----
From: Akin, Pam
Sent: Tuesday, September 14, 2004 1:20 PM
To: Arasteh, Mahshidj Tarapani, Cyndij Brumback, Garry
Subject: Cheezem
Mahshid. this is the lanauaae proposed bv the Developer for the Resort Proiect: of particular concern to
me is the last sentence. Essentiallv their request is to have their water and sewer fees calculated the
same way as "Sunshine Mall" property.
Impact Fees. The City shall use its best efforts to secure or provide any lawfully available credits against
impact fees applicable to the Project which are authorized under existing laws and regulations for public
improvements constructed and paid for by the Developer. In the event that the City is unable to secure a
credit against any impact fees, the City shall use its best efforts, within the limits of the applicable law, to
allocate impact fees collected from the Developer to the public improvements which are described in
Exhibits H, I, J and K to this Agreement or other improvements in the immediate vicinity of the Project
Site. The City shall compute the water and sewer impact fees using the following methodology: the total
inches of water meter in place prior to redevelopment shall be used as the determining factor for future
water and sewer impact fees and no water or sewer impact fees will be assessed if the total water meter
inches required for the proposed project does not exceed the total inches in place prior to redevelopment.
1
l
#
C i. ~t~~~~_~___
Post-It" Fax Note 7671
. \'" -~'1I
p. 1
Sep 1,,!: 04 OS:03a
~.Ruden
~"McClos- :;' *It,,"
l"'ANCIAl CENTRE
r JACKSON STREET
JRIOA 33602-5841
Fax #
1813) 222-&653
FAX: 1813) 314-6953
JEFFREY .5HEAR@RUDEN.COM
September 9,2004
RECEIVED
Pamela Akin
City Attorney
SEP 1 3 2004
RECEIVED CITY ATTORNEY
City of Clearwater ~tt' 1 'I 20
1125 Osceola Avenue, 3rd Floor ~- 04
Clearwater, FL 33756 PLANNING DE
C!TY OF PARTMENT
City of Clearwater-Minimum Quality Shin~ARWATER
Re:
Dear Pam:
Several weeks ago you requested that my client, Taub Development, review the City
document entitled "Minimum Quality Standards" and further requested that we consider
agreeing to abide by said standards even though those standards are not a requirement of our
approved Development Agreement.
To that end, we have forwarded this document to Hyatt and have discovered that Hyatt is
resistant to agreeing to these standards, for a number of reasons. First, they are very
uncomfortable about the idea of reliance on AAA or Mobile Travel Guide, as these guides are
extremely subjective. They also have concerns about the City's defined quality standards for the
operation of the hotel. Generally, the problem with these types of standards is that if they are too
vague, it is difficult to determine whether they have been satisfied. Conversely, if they are too
specific, they can tie the hands of the operator and freeze the standard to a defined time. One
specific example would be the requirement for a armoire with an enclosed TV set. Many "first
class" hotels have already changed from the arrnoire/TV configuration to a wall mounted flat
screen TV. These types of "fixed" characteristics make modernization difficult.
I believe that we can all agree that the City is excited about the opportunity of having a
first class operator like Hyatt operating the hotel and is satisfied with the standards that a Hyatt
would bring to Clearwater Beach. We also believe that Hyatt, as the operator of luxury hotels
around the world, is in a better position to determine what is appropriate and in the best interest
of their hotels than is a standardized set of criteria. Additionally, as a further assurance of
quality, due to the financing method being utilized for this project, Hyatt will also be obligated to
satisfy two hundred fifty (250) condominium owners.
This scenario should provide the City comfort in both knowing that they are dealing with
a prestigious company such as Hyatt and that two hundred fifty (250) discriminating owners are
holding Hyatt accountable to a high level of quality.
TPA:339363:1
CAItACAS . FT. LAUDERDALE' MIAMI' NAPLES' ORLANDO' PORT Sf. LUCIE . SAItASOTA . ST. PETERSBURG . TALLAHASS~~ . TAMPA' WEST PALM IlEACH
RUDEN, McCLOSKY, SMITH, SCHUSTER & RUSSELL, P.A.
Sep 1/. 04 09:03a
I
Ci.Attorne~
727.4021
p.2
Page 2
If you have any questions or comments, please do not hesitate to contact my office.
Very truly yours,
RUDEN, McCLOSKY, SMITH,
SCHUSTER & RUSSELL, P .A.
'" ~/
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J effr-eyT .'~hear
JTS/tf
cc: Brian Taub, Taub Properties (via fax)
Michael C. Shindler, Sr. Vice President, Hyatt Corporation (via fax)
TPA:339363: 1
CARACAS' fT. IAUDEROAlE . MIAMI. NAPLES' ORlANDO. PORT ST. LUCIE . SARASOTA' ST. PETERSBURG' T....LIAHASSEE . TAMP.... . WEST PALM BEACH
RUDEN, McCLOSKY, SMITH, SCHUSTER & RUSSELL, P.A.
ill
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Tarapani, Cyndi
From:
Sent:
to:
Subject:
Akin, Pam
Thursday, August 26, 20044:37 PM
Tarapani, Cyndi; Brumback, Garry
FW: CBH-City Development Agreement
~
~
City Development City Development
Agt.2.doc Agt.2-1.red.d..,
-----Original Message-----
From: Ed Armstrong [mailto:EdA@jpfirm.com]
Sent: Monday, August 02, 2004 3:23 PM
To: Akin, Pam
Subject: FW: CBH-City Development Agreement
Pam, attached is a redlined and clean proposed development agreement for
the clearwater beach hotel project. The redline version is based upon
the seashell agreement. Although we don't have exhibits to attach yet,
we thought it would be helpful to start our dialogue. Let me know what
you think the next step should be. Ed.
-----Original Message-----
From: Robert Greene [mailto:RGreene@gdslegal.com]
Sent: Monday, August 02, 2004 11:56 AM
To: Mike Cheezem (E-mail); Ed Armstrong; John Hobach (E-mail); Lee Allen
(E-mail); Barry Marcus (E-mail); Mike Bradley (E-mail)
Subject: CBH-City Development Agreement
Attached is the revised draft of the Development Agreement without
exhibits, clean and blacklined. Call with any comments. Ed will forward
to Pam as a preliminary draft.
Robert F. Greene
Greene & Schermer
1301 Sixth Avenue West, Suite 400
Bradenton, Florida 34205
phone: (941) 747-3025
fax: (941) 747-6937
email: rgreene@gdslegal.com
This message is intended only for the addressee and may contain
information that is PRIVILEDGED and CONFIDENTIAL, and/or may contain
ATTORNEY WORK PRODUCT. If you are not the intended recipient, you are
hereby notified that any dissemination of this communication is strictly
prohibited. If you have received this communication in error, please
erase all copies of the message and its attachments and notify us
1
immediately. Thank you. < <City I.elopment Agt.2.doc> >
Development Agt.2-1.red.doc> >
2
<<City
.
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From:
Sent:
To:
Cc:
Subject:
Stone, Ralph
Tuesday, July 27, 2004 2:36 PM
Akin, Pam; Arasteh, Mahshid
Wilson, Denise; Phillips, Sue
Cheezum Project OptlOns
The most discussed options are as follows:
1. Public parking on site or off site
2. Participation in streetscape improvements:
a. Baymont
b. Rockaway
c. Mandalay
3. Consolidate under utilized properties to the north
4. Redevelopment the strip center to the east on Mandalay
Personally-I would suggest that given the enormous change in the hotel development market since BBD was approved,
that the purchase and development of a four star resort/hotel is more than enough to justify the additional units from the
pool. Otherwise I would suggest a "payment in lieu" of public parking that would contribute to additional beach parking.
1
.
.
Tarapani, Cyndi
From:
Sent:
To:
Subject:
Fierce, Lisa
Tuesday, July 06,20043:55 PM
Tarapani, Cyndi
RE: Cheezem project
public art; contributions to parking garage (off site); something that contributes to the beach activity to the west like a
friendly "gateway"/vista
Lisa L. Fierce
City of Clearwater Assistant Planning Director
lisa. fierce@MvClearwater.com
727.562.4561 phone * 727.562.4865 fax
Buckeye and Buccaneer Fan - GO BUC(K)S/
-----Original Message-----
From: Tarapani, Cyndi
Sent: Tuesday, July 06, 2004 12:54 PM
To: Fierce, Lisa; Gerlock, Chip; Clayton, Gina
Subject: FW: Cheezem project
There is some interest in developing a list of improvements thatCheezem would make in exchange for the
density pool units. Ralph is compiling a list from all city staff. If you all have other ideas, I would be happy to
send them along for combination into the list. Thanks.
Cyndi Tarapani
Planning Director
(727)562-4547
cyndi. tarapani@MyClearwater.com
-----Original Message-----
From: Tarapani, Cyndi
Sent: Tuesday, July 06,200412:51 PM
To: Stone, Ralph
Cc: Brumback, Garry; Arasteh, Mahshid
Subject: Cheezem project
As we discussed in the Strategy Meeting today, I suggest the following off-site improvements for discussion
with Cheezem.
1. Landscaping and Streetscaping of Baymont Avenue. Should coordinate in design theme with Mandalay
streets cape.
2. Continuation of Mandalay streetscape from Baymont north to Rockaway Street. Should coordinate in
design theme with existing Mandalay streetscape.
3. Provision of public parking on site.
Thanks.
Cyndi Tarapani
Planning Director
(727) 562-4547
cyndi. tarapani@MyClearwater.com
.
.
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Tarapani, Cyndi
From:
Sent:
To:
Cc:
Subject:
Tarapani, Cyndi
Thursday, April 22, 2004 3:25 PM
'ed@jpfirm.com'
Clayton, Gina; Akin, Pam
Interpretation of BBD
Contacts:
Ed Armstrong
I wanted to confirm the City's interpretation on the issues you raised on Beach By Design.
1. How to allow 150' in development?
The City will consider the entire project which is requesting pool units as being eligible to request higher
height.
2. Meeting Space requirement
20,000 square feet of meeting space is required but the project may include the beach club to meet that
minimum square footage. Please be advised that the beach club should remain as we discussed in our meeting, ie,
that it includes restaurant, bar as well as locker rooms, etc and is available for rental by members.
3. Van Shuttle as part of room rate
The City is evaluating this issue and whether this requirement should remain in effect. The Seashell
agreement does have this provision-see Section 2.03 5(c). We will get back with you as soon as we can make a
determination on this issue.
4. Beach operation and maintenance
The City is evaluating the intent and purpose of this provision and will get back with you on it as soon as
possible.
I hope this provides enough direction for you to proceed with your project planning. Weare aware that a decision
on the third and fourth items needs to be made timely to either direct you all to meet them or revise BBD
accordingly. If you have any questions regarding these issues, please direct them to Gina Clayton in my absence.
Thanks.
Cyndi Tarapani
Planning Director
(727) 562-4547
cyndi. tarapani@MyClearwater.com
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Ralph Stone, Assistant City Manager
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Laura Lipowski, Assistant City Attonr~y JY-'i
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Clearwater Beach Hotel
City Attorney's Office
Memorandum
FROM:
RE:
DATE:
December 19, 2003
As you indicated in your em ail, Jeff Hunter would like some questions answered
regarding the possible expansion of the Clearwater Beach Hotel. The subject property
includes a pedestrian easement that lies within what was formerly Ambler Street, which
was vacated in 1965. Specifically, you have posed the following questions regarding the
easement and the potential development of the property:
1. Can the easement be vacated for purposes of expanding the hotel?
2. Could a hotel expansion be constructed over the existing easement? If so,
could the easement be climate controlled and have limited hours of access?
3. Could the easement be relocated to the northern edge of the property line so
that the easement would still provide access to the beach, but would not go
through or under the hotel?
SUMMARY
1. The easement cannot be vacated for purposes of expanding the hotel. The
City's Charter clearly prohibits vacation for private benefit of any public
easement that provides water access.
2. Resolution No. 65-77, which created the subject easement, only allows the
owner to "bridge" said pedestrian easement. As such, any hotel expansion
could not be built over the easement (meaning at ground level) and whether
any constructed addition would be climate controlled or have limited hours of
access is a moot point.
3. Since the City Charter does not allow for a vacation of the existing easement,
relocation of the easement is also a moot point.
~
.
DISCUSSION
.
Vacation of the easement
1. The City of Clearwater Charter, Article II, Section 2.01 (d)(5)(vi) provides:
Article II.
LEGISLATIVE POWER
Section 2.01. Commission; composition; powers.
(d) Limitations. The legislative power provided herein shall have the following
limitations:
(5) Real property.
(vi) No right-of-way or easement which terminates at, or provides access to,
the water's edge of a body of fresh or salt water may be vacated for private
benefit. Nothing contained in this section shall prevent an easement for utility
purposes from being exchanged for a new easement for similar purposes or
from converting a fee interest for utility purposes into an easement for such
purposes.
The Ambler Street pedestrian walkway provides access to the Gulf of Mexico,
therefore, Article II, Section 2.01 (d)(5)(vi) of the City's Charter applies in this
case and prohibits vacation of the walkway.
Construction "on" the easement
2. The subject pedestrian easement resulted from Resolution No. 65-77 in 1965,
providing for the vacation of Ambler Street and the express exception of a
pedestrian right-of-way as follows: "It is understood that the remaining 10 foot
portion of Ambler Street is dedicated as a pedestrian walkway in perpetuity;
however, the said property owner shall have the right to bridge the said
pedestrian easement in accordance with plans and specifications submitted to
and approved by the Building Inspector of the City of Clearwater, and also the
right to pave said pedestrian walkway, if desired." The Resolution language
clearly allows for bridging over the easement, not for construction "on" the
easement. The construction of an enclosed, climate-controlled structure would
therefore not be permitted, and in any event, a structure with limited hours of
access would impede public right of entry and be in violation of the easement.
The current "bridge-type" structure is the type of structure allowed for in the
easement.
In addition, Florida courts have held in favor of the "dominant" party (the party
having the right of use) of an easement, particularly where the language of the
easement is not ambiguous. There are three 5th DCA cases that bear perusal.
(
In Hoff v. Scott, iJi..3 SO.2d 224 (Fla. 5th DCA 1984),. court found that an
easement of a 5. of land 20 feet wide to be used f, Ie right of ingress and
egress was not ambiguous, and that Appellees had no right to place permanent
obstructions in any part of easement area. The court found, in pertinent part:
"In this case the easement granted was 'over, across, and upon a strip of land 20
feet wide...such strip of land to be used in common for the right of ingress and
egress.' The language of this deed is not ambiguous, and we are unable to read
it as merely giving a right to travel somewhere over the twenty foot area. It is
clear from the wording of the deed that the whole strip was set aside for ingress
and egress."
Similarly, in Richardson v. Jackson, 667 SO.2d 928 (Fla. 5th DCA 1996), the
court found that no improvements could be made within the boundaries of a 25
foot easement, even given the fact that only an eight-foot path within the
easement was actually used for vehicles.
In Limited Partnership Sand Lake Shoppes Familv v. Sand Lake Courtyards.
L.C.. et. al.. 816 SO.2d 143 (Fla. 5th DCA 2002), the court found that the proper
question is whether or not there has been any interference of the Appellant's
right to free passage over the easement to the degree and amount originally
contemplated by the parties. The court found that Appellees' erection of a
billboard over the easement infringed upon the easement. The pertinent
language in the easement was:
"...an easement for the purpose of vehicular and pedestrian ingress and egress
to and from Sand Lake Road over, across and upon all of that certain parcel of
land..."
The language in Resolution No. 65-77 is unambiguous as well, and does not
provide for uses other than those specifically, clearly delineated.
Relocation of the easement
3. Relocation of the easement would necessitate the vacation of the existing
easement, which, as discussed above, is prohibited by Article II, Section
2.01 (d)(5)(vi) of the City's Charter. Any strategy to relocate the easement would
be moot.
cc: Pam Akin, City Attorney
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Public 1l'\1orrnoUol\ doto 's furnlthed by 1'" CI1V of Cleorwater
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or ",lSolR or such data.
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CJS] SHADED AREA - PRDPERTY
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NW 1/4 OF SECTION /267A
2768 .. 8 -29S-15E
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CITY OF CLEARWATER
NOTICE OF PUBLIC HEARINGS
REGARDING DEVELOPMENT AGREEMENT
The City Council of the City of Clearwater, Florida, will hold a public hearing on Thursdav. Januarv
20. 2005, beginning at 6:00 p.m., or as soon thereafter as the matter may be heard, in the City Council
Chambers, in City Hall, 3rd floor, 112 South Osceola Ave, Clearwater, Florida, to consider the following
request:
The City of Clearwater proposes the approval of a Development Agreement between CBR Development
I, LLC and CBR Development II, LLC and the City of Clearwater. DV A2004-00005 (Owners: Hunter
Hotel Company and Mandalay Investments, LLC.)
Legal Description
Clearwater Beach Park, Lots 1-13,43-56,65-71 and part of Lot 64 the revised map of Clearwater Beach
Resub, Blk 10 & 11, and Lots 2-15, Blk 9, and Miller's Replat Lots 1 & 10 and part of Lot 9 (470 & 500
Mandalay Avenue and 470, 489, 490 & 495 Beach Drive):
The Development Agreement proposed use consists of mixed use (260 overnight accommodation units at
72.22 rooms/acre on hotel portion of site and a height of 100 feet, 120 attached dwellings at 50 units/acre
on residential/retail portion of site and a height of 150 feet and 11,000 square feet of retail sales and
services at a FAR of 0.105 on residential/retail portion of site, located on the west side of Manda lay
Avenue between San Marco and Ambler Streets
Additional information, including the development agreement, is available in the Planning Department at
the Municipal Services Building, 100 S. Myrtle Avenue, Clearwater, Florida, or call 562-4567.
Interested parties may appear and be heard at the hearing or file written notice of approval or objection
with the Planning Director or City Clerk prior to the hearing. Any person who decides to appeal any
decision made by the Board or Council, with respect to any matter considered at such hearings, will need
to request and obtain party status by the Board during the case discussion, a record of the proceedings
and, for such purpose, may need to ensure that a verbatim record of the proceedings is made, which
record includes the testimony and evidence upon which the appeal is to be based per Florida Statute
286.0105. Community Development Code Section 4-206 states that party status shall be granted by the
Board if person requesting such demonstrates that s/he is substantially affected. Party status entitles parties
to: personally testify, present evidence, argument and witnesses, cross-examine witnesses, appeal the
decision and speak on reconsideration requests.
An oath will be administered swearing in all participants in public hearing cases. If you wish to speak at
the meeting, please wait to be recognized, then state and spell your name and provide your address.
Persons speaking before the CDB shall be limited to three minutes unless an individual is representing a
group in which case the Chairperson may authorize a reasonable amount of time up to 10 minutes. The
Community Development Board will review the case and make a recommendation to the City Council for
final disposition.
Five days prior to the meeting, staff reports and recommendations on the above requests will be available
for review by interested parties between the hours of 8:30 a.m. and 4:30 p.m., weekdays, at the City of
Clearwater, Planning Department, 100 S. Myrtle Ave., Clearwater, FL 33756. Please contact Gina
Clayton, Long Range Planning Manager, at 562-4587 to discuss any questions or concerns about the
project and/or to better understand the proposal.
~
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A copy of the Development Agreement is available in the Official Records and Legislative Services
Department, P.O. Box 4748, Clearwater, Florida. For additional information, call the Planning
Department at 562-4567.
Cyndi Tarapani
Planning Director
Cynthia E. Goudeau, CMC
City Clerk
City of Clearwater
P.O. Box 4748, Clearwater, FL 33758-4748
YOU ARE BEING SENT THIS NOTICE IF YOU ARE THE APPLICANT OR OWN PROPERTY WITHIN 200
FT. OF THE SUBJECT PROPERTY.
A COpy OF THIS AD IN LARGE PRINT IS AVAILABLE IN THE OFFICIAL RECORDS AND
LEGISLATIVE SERVICES DEPARTMENT. ANY PERSON WITH A DISABILITY REOUIRING
REASONABLE ACCOMMODATIONS IN ORDER TO PARTICIPATE IN THIS MEETING SHOULD
CALL THE OFFICIAL RECORDS AND LEGISLATIVE SERVICES DEPARTMENT WITH THEIR
REOUEST AT (727) 562-4090.
Ad: 01102/05
P S B CREDIT SERV INC
.pO BOX 38
PRINSBURG MN 56281 - 0038
STEPHANS, SUSAN
STEPHANS, DORIS
701 TAYLOR ST # 508
SAN FRANCISCO CA 94108-
3825
CLEARWATER, CITY OF
PO BOX 4748
CLEARWATER FL 33758 - 4748
JANIS, JOHN
10300 S LONG AVE
OAK LAWN IL 60453 - 4643
FL CLEARWATER BEACH
HOTEL
PO BOX 7230
DES MOINES IA 50309 - 7230
BAIR, TED J
BAIR, LINDA D
10 PAPAYA ST # 805
CLEARWATER FL 33767 - 2068
DIORIO, RONALD L
DIORIO, SANDRA R
10 PAPAYA ST #402
CLEARWATER FL 33767-
WEST FINANCIAL CORP
C/O FORLINI, DOMENIC
808 MANDALA Y AVE
CLEARWATER FL 33767 - 1324
P S B CREDIT SERV INC
PO BOX 38
PRINSBURG MN 56281 - 0038
-BARRETT, WILLIAM T
BARRETT, SHEILA M
11 SAN MARCO ST # 306
CLEARWATER FL 33767 - 2060
PAULL, DENNIS M
PAULL, DIANE P
10104 RADCLIFFE DR
TAMPA FL 33626 - 2512
CHAMPAGNE, HELEN L TRE
GENDRON, CHARLES P TRE
450 BAXTER BLVD
PORTLAND ME 04103-
PECORARO, ERNEST A
PECORARO, NYDIA
1901 OCEAN AVE
SPRING LAKE NJ 07762 - 1519
FLORIDA CLEARWATER
BEACH
HOTEL CO
PO BOX 7230
DES MOINES IA 50309 - 7230
C M D HOLDINGS INC
PO BOX 25422
ST PAUL MN 55125 - 0422
CLEARWATER, CITY OF
PO BOX 4748
CLEARWATER FL 33758 - 4748
ZILlSCH, BARBARA L TRE
11 SAN MARCO ST # 708
CLEARWATER FL 33767 - 2061
P S B CREDIT SERV INC
PO BOX 38
PRINS BURG MN 56281 - 0038
.SAID, NADER
SAID, HALA
11 SAN MARCO ST # 1007
CLEARWATER FL 33767-
AJA Y ENDEAVORS INC
12190 CONTEL BLVD
BROOKVILLE FL 34613 -
RODWELL, ERIC V
RODWELL, DONNA M
11 SAN MARCO ST # 408
CLEARWATERFL 33767 - 2060
WARD, MICHAEL S
WARD, GISELLE V
407 S ROYAL PALM WAY
TAMPA FL 33609 - 3728
MC DERMOTT, JAMES T
DRAPP, SHANNON M
11 SAN MARCO ST # 608
CLEARWATER FL 33767 - 2061
MARY G REALTY INC
490 MANDALA Y AVE
CLEARWATER FL 33767 - 2007
P S B CREDIT SERV INC
PO BOX 38
PRINSBURG MN 56281 - 0038
GIANNAS, SPIRO P
GIANNAS, ST A THIA P
25745 SANTOS WAY
WESLEY CHAPEL FL 33544 -
5513
HAYDON, CHARLES R
2417 MAYFAIRRD
TALLAHASSEE FL 32303 -
PARADES, ANTONIO M BEHESHTI, ALl DORSCH, DANIEL J
1 0 PAPAYA ST # 903 BEHESHTI, T ARANEH DORSCH, CYNTHIA P
CLEARWATER FL 33767 - 2055 11 SAN MARCO ST # 1402 6326 MAC LAUREN DR
( (.. ~ CL..E.A~W ATER FL 33767 - 2075 TAMPAFL 33647 - 1163
~~) 56Ml{Lr1().aJOJ./ {ifJ.;)OU'/- O~C:;")
COX, THOMAS D
. COX, SHARON K
848 POINT SEASIDE DR # 706
CLEARWATERFL 33767-
PERTILE, RICHARD K
PERTILE, DEBORAH J
1137 MARINA DR
TARPON SPRINGS FL 34689 -
6713
MBC
324 MAIN ST # 505
DAVENPORT IA 52801 - 1418
COSTAWAY
15 HEATHWAY
BARRINGTON IL 60010 - 9513
URINO, MARIE V TRE
466 EAST SHORE DR
CLEARWATER FL 33767 - 2031
KERN, DAVID J
1320 SUMMERLAND AVE
WINTERP ARK FL 32789 - 1442
RE, C JOHN
PULLARA, JOSEPH A
427 LOCH DEVON DR
LUTZ FL 33548 - 4282
SOBOTKA, JOSEPH J
SOBOTKA, SYLVIA R
52 THOROUGHBRED DR
HOLLAND P A 18966 - 2570
HUNTER HOTEL CO
PO BOX 7230
DES MOINES IA 50309 - 7230
BELLE HARBOR
2201 4TH ST N STE 200
ST PETERSBURG FL 33704 - 4300
. MANDALA Y BEACH CLUB CONDO
ASSN
C/O MANDALA Y BEACH CLUB L TD
2201 4TH ST N # 200
ST PETERSBURG FL 33704 - 4300
TAYLOR, JOHN S III
C/O CLEARWATER-SURFSIDE
TR
400 MANDALA Y AVE
CLEARWATER FL 33767 - 2011
KUIJTEN, JOHN P TRE
11 SAN MARCO ST # 1103
CLEARWATER FL 33767 - 2069
BONI, JOAN P
19 ROCKAWAY ST #4
CLEARWATER FL 33767 - 1739
MAROTTOLI, ANTHONY
10 PAPAYA ST # 306
CLEARWATER FL 33767 - 2040
BORRECA, JOHN P
BORRECA, FRANCINE K
5405 SUNFLARE WAY
LUTZ FL 33558 - 9020
HEILMANS RESTAURANTS INC
447 MANDALAY AVE
CLEARWATER FL 33767 - 2013
MANION, JOSEPH
MANION, JANINE M
11 SAN MARCO ST # 1108
CLEARWATER FL 33767 - 2069
GELEP, HELEN A EST
C/O GELEP, PAULA PR
2020 BA YSHORE DR
BELLEAIR BEACH FL 33786-
3425
KIEFFER, ALAN L
KIEFFER, NELLI L
11 SAN MARCO ST # 307
CLEARWATER FL 33767 - 2060
-ECKALL INV CO
8155 ELBOW LN N
ST PETERSBURG FL 33710 - 4325
KAIZER, JEFFREY R
KAIZER, LISA B
3303 LEGAL CREST DR
LONGWOOD FL 32779 -
KOTCHMAN, CASEY J TRE
11 SAN MARCO ST # 1206
CLEARWATERFL 33767-
HUNTER HOTEL CO
PO BOX 7230
DES MOINES IA 50309 - 7230
FLORIDA CLEARWATER
BEACH
HOTEL CO
PO BOX 7230
DES MOINES IA 50309 - 7230
GREEN, RICHARD JR
GREEN, KAREN M
110 SAN MARCO ST # 1101
CLEARWATER FL 33767 -
CLEARWATER, CITY OF
PO BOX 4748
CLEARWATER FL 33758 - 4748
J E C FUNDING INC
C/O JACK ECKERD CORP
TAXDEPT
PO BOX 4689
CLEARWATER FL 33758 - 4689
FISHER, PAMELA
FISHER, NELSON J
817 BUNKERVIEW DR
APOLLO BEACH FL 33572 - 2812
HOLIDAY, JAMES A SR
HOLIDAY, ELEANOR L
11 SAN MARCO ST # 1204
CLEARWATER FL 33767 - 2075
JOHNSON, GEORGE A .POWELL, BARBARA J .TEMA INVESTMENTS
. JOHNSON, AMPRO 5401 BA YSHORE BLVD # P 3135 SW 3RD AVE
lOP AP A Y A ST # 401 TAMPA FL 33611 - 4137 MIAMI FL 33129 - 2711
CLEARWATER FL 33767-
FORLINI, DOMENICO G DORNER, SEBASTIAN BOULTON, CARLOS A
FORLINI, FULVIA DORNER, ELIZABETH BOULTON, ANN-MARIE
808 MANDALA Y AVE 7081 W TOUHY # 601 15 KELL YS TRL
CLEARWATER FL 33767 - 1324 NILES IL 60714 - 5311 OLDSMAR FL 34677 - 1919
AXEL, JONATHAN P TRE COLLETTE, JAMES A ROTH, ELIZABETH W
AXEL, CORAL S TRE DE PASQUALE, LINDA M 8826 NAUTILUS DR
5201 LAUREL POINT RD 10 PAPAYA ST # 806 TAMPA FL 33635 - 1339
V ALRICO FL 33594 - 8280 CLEARWATER FL 33767 - 2068
KOV ACS, VIOLET C HUNTER HOTEL CO MOULIS, JAMES M
23 ROCKAWAY ST PO BOX 7230 MOULIS, SUSAN B
CLEARWATER FL 33767 - 1739 DES MOINES IA 50309 - 7230 3302 ROCKY BEACH RD
MC HENRY IL 60051 - 9669
YOF AN, JACQUELINE D CARACO, JOSEPH POTTER, P ASCHOALENA
YOFAN,AVI IOCOLANO, FRANCO 463 EAST SHORE DR
10 PAPAYA ST # 1202 800 S KEENE RD CLEARWATER FL 33767 - 2033
CLEARWATERFL 33767 - 2056 CLEARWATER FL 33756 - 4630
SCHAEFER, RANDY TRE BAUER, CHARLES L BRANDENBURGH, JOAN TRE
3225 S MACDILL AVE # 268 BAUER, JANET W 37 BAYMONT ST
TAMPA FL 33629 - 8171 11 SAN MARCO ST # 1005 CLEARWATER FL 33767 - 1704
CLEARWATER FL 33767 - 2062
GELEP, HELEN A EST KNOWLTON, JOHN P TRE JOHNSON, ROBERT
C/O GELEP, PAUL A PR KNOWLTON, CATHIE L TRE 10 PAPAYA ST # 603
2020 BA YSHORE DR W180 N8217 DESTINY DR CLEARWATER FL 33767 - 2040
BELLEAIR BEACH FL 33786- MENOMONEE FALLS WI 53051 -
3425 3503
HYDUK, RANDY GRUBER, CRAIG M BROWN, SHERMAN D
HYDUK, APRIL 11 SAN MARCO ST # 602 BROWN, ANDREA D
20539 COUNTRYSIDE DR CLEARWATER FL 33767 - 2060 11 SAN MARCO ST # 705
MACOMB MI 48044 - 3589 CLEARWATER FL 33767 - 2061
GRUBER, CRAIG M PIMENIDIS, JOHN H LATCH, LLOYD E TRE
11 SAN MARCO ST # 602 PIMENIDIS, CHRISTINA LATCH, CONSTANCE A TRE
CLEARWATER FL 33767 - 2060 1651 SAND KEY ESTATES CT # 43 CLOUD VIEW RD
11 SAUSALITO CA 94965-
CLEARWATER FL 33767 - 2933
LA SAL MOTEL CONDO ASSN MANDALA Y BEACH CLUB L TD WELLS, DARCY L
PO BOX 1054 2201 4TH ST N STE 200 NALEY, STEVE W
DUNEDIN FL 34697 - 1054 ST PETERSBURG FL 33704 - 4300 705 BA Y ESPLANADE AVE
CLEARWATER FL 33767 - 1409
CASO,RONALD .VITOLA, JOHN R .W ANDACHOWICZ, BOGDAN
CASO, BERNADETTE VITOLA, GEORGINE A 10 PAPAYA ST # 1001
3 SUTPHIN AVE 218 S BROAD ST CLEARWATERFL 33767 - 2055
MATAWANNJ 07747 - 3315 BROOKSVILLE FL 34601 - 2832
SIKA, STEPHEN MOMESSO, NORELLA N SMITH, PETER C
HALLERAN, EDWARD M 10 JONQUILLE SMITH, SABRINA S
1005 VICTORIA DR KIRKLAND QC H9H 5A3 00030- 10 PAPAYA ST # 505
DUNEDIN FL 34698 - CANADA CLEARWATER FL 33767 - 2040
MOLLER, ANDREW K FORLINI, DOMENIC PERNICE, SALVA TORE J
12175 OXBOW DR FORLINI, FULVIA PERNICE, BARBARA F
EDEN PRAIRIE MN 55347 - 4261 808 MANDALA Y AVE 3 N 614 CENTRAL CT
CLEARWATERFL 33767 -1324 ADDISON IL 60101 - 3052
SMITH, DONALD F TRE LYLE, JOHN F HARVEY, JAMES C TRE
SMITH, MARY H TRE LYLE, NANCY S 1180 GULF BLVD # 2106
11 SAN MARCO ST # 1506 C/O MC MURRY & CO CLEARWATER FL 33767 - 2774
CLEARWATER FL 33767- 408 N SHORE DR
KNOXVILLE TN 37919-
GELEP, MARY H MORRIS, MARY J TOUCHTON, WALTER W TRE
GELEP, PAULA 21 MCCALLRD TOUCHTON, JO ANN H TRE
2020 BA YSHORE DR WINCHESTER MA 01890- 10 PAPAYA ST # 702
BELLEAIR BEACH FL 33786- CLEARWATER FL 33767 - 2054
3425
P S B CREDIT SERV INC DERVECH, ALEXANDER TRE SMITH, MERLE W
PO BOX 38 MANDALA Y TRUST SMITH, DIANA T
PRINSBURG MN 56281 - 0038 1907 ORO CT 11 SAN MARCO ST # 1201
CLEARWATER FL 33764 - 6645 CLEARWATER FL 33767 - 2069
JOPPERT, MARCOS CRYSTAL CLEAR ENGEBRETSEN, ARDEN B
SNODGRASS, SUSAN M ENTERPRISES ENGEBRETSEN, ELEANORE A
10114 RADCLIFFE DR BOSQUE DE REFORMA # 831 1170 GULF BLVD # 2206
TAMPA FL 33626 - 2512 DOSQUES DE LAS LOMAS CLEARWATERFL 33767 - 2787
MEXICO CITY 00002-
- -----. - -
CHRISTOLINI, CHARLES JR GILBERT, DONNA J DA VIS, DEXTER C
CHRISTOLINI, DARLENE E GILBERT, HAROLD E ALEXANDER-DAVIS, LISA
1759 MOREY RD 10 PAPAYA ST # 705 5806 GALLEON WAY
SHELDON VT 05483 - 8343 CLEARWATER FL 33767 - 2068 TAMPA FL 33615 - 3634
BAUER, CHARLES L PROP LTD COLLINS, W ALTER W GIBSON, PAUL F
6106 WADE ST 9813 COMPASS POINT WAY 11 SAN MARCO ST # 302
LEESBURG FL 34748 - 8099 TAMPA FL 33615 - 4218 CLEARWATERFL 33767 - 2060
PILATO, SAM A
PILATO, TALMA
3257 NICKS PL
CLEARWATER FL 33761 -
IYER, VENKIT S
IYER, LAKSHMI V
3469 SHORELINE CIR
PALM HARBOR FL 34684 - 1727
ROSCOE, GREGORY J
ROSCOE, LINDA L
871 BEAVER DR
DUBOIS PA 15801 :- 2434
HANNA, ASHRAF F .SMITH, MERLE W .FERNANDEZ, ROBERT TRE
HANNA, MIRANDA Z SMITH, DIANA T FERNANDEZ, MARIL YN TRE
3509 SHORELINE CIR 11 SAN MARCO ST # 1201 1605-B N MACDILL AVE
PALM HARBOR FL 34684 - 1727 CLEARWATERFL 33767 - 2069 TAMPA FL 33607 - 3219
CLEARWATER, CITY OF KEIR, LEONARD V AN BERKEL, ANTONIUS P
PO BOX 4748 KEIR, BERNTRUD TRE
CLEARWATER FL 33758 - 4748 11 SAN MARCO ST # 1605 V AN BERKEL, MARIA H TRE
CLEARWATER FL 33767 - 2076 1560 GULF BLVD # 1504
CLEARWATER FL 33767 - 2984
LORDEN, HEIDI M TRE DENTICE, JOSEPH F TRE OLIVER, ROBERT
PO BOX 651 DENTICE, ELLEN L TRE OLIVER, CHARLOTTE B
TOWNSEND MA 01469 - 0651 30413 CRYSTAL SPRINGS DR 2982 CASTLE WOODS LN
PEW AUKEE WI 53072 - CLEARWATER FL 33759 - 1810
NUCCI FAMILY LTD PTNSP CHRISTOPHER, TODD C F AGUE, SCOTT B
602 GUISANDO DE A VILA CHRISTOPHER, WANDA ROBERTS, GERALD D
TAMPA FL 33613 - 5201 11 SAN MARCO ST # 1505 1001 DEVELOPMENT DR
CLEARWATERFL 33767 - 2075 TIPTON IN 46072 -
LOCKETT, THERESA GRIECO, DANIEL J II CHALAVARYA,GOPAL
11 SAN MARCO ST # 1003 GRIECO, DIANE Y CHALA VARY A, SADHNA
CLEARWATER FL 33767 - 2062 lOP AP A Y A ST # 404 1510 JASMINE AVE
CLEARWATER FL 33767 - 2040 TARPON SPRINGS FL 34689 -
5242
ANGELOCCI, RANDY PRESTON, MICHAEL G TRE KAESTNER, JOHN T
CROSSLAND, RICHARD 419 E SHORE DR KAESTNER, JOANN M
10 PAPAYA ST # 1106 CLEARWATER FL 33767 - 2028 777 CARMAN MEADOWS DR
CLEARWATER FL 33767 - BALLWIN MO 63021 - 7174
SAND KEY CONSULTING CO MC LAY, DA VID TRE PODGURSKI, MICHAEL A
180 DINAH RD PO BOX 7153 PODGURSKI, LINDA G
MEDINAH IL 60157- CLEARWATER FL 33758 - 7153 1125 W POWDERHORN RD
MACHANICSBURG P A 17050 -
2007
KLEINBERG, MIL TON M P APP AS, PETER C SZAREK, LENARD
KLEINBERG, MARSHA A 225 ROBINSON ST # 540 SZAREK, CHRISTINE
6034 COUNTRY CLUB OAKS PL ORLANDO FL 32801 - 4321 907 ROLLING LN
OMAHA NE 68152 - 2009 JOHNS BURG IL 60050 - 9676
DAY, WILLIAM A TRE RUKA VINA, JAMES AUGUSTINE, RICHARD J
1968 LAKEVIEW AVE RUKA VINA, DIANNE 999 PLAZA DR STE 111
DRACUT MA 01826 - 3210 BOX 6448 SCHAUMBERG IL 60173 - 5403
EDSON AB T7E 1 T8 00030-
CANADA
MAJEWSKI, DENISE M TRE MARCO, SAN TRUST TURLEY, STEWART
SCHNEIDER, CHRISTINE J 2028 PALMER DR TURLEY, LINDA A
43 LAKE ADAL YN DR S NAPERVILLE IL 60564 - 5664 10 PAPAYA ST # 1504
SOUTH BARRINGTON IL 60010- CLEARWATER FL 33767 - 2057
9542
EGAN, LYNNE A
10 PAPAYA ST # 1604
CLEARWATER FL 33767 - 2057
MELILLO, RONALD M
MELILLO, IRIS
772 SAMANTHA DR
PALM HARBOR FL 34683 - 6200
GAREL-JONES, PHILIP TRE
GAREL-JONES, BEATA TRE
I STEPHANIE AVE
OTTAWA ON K2E 7A8 00030-
CANADA
PIMENIDIS, JOHN H
PIMENIDIS, CHRISTINA
C/O KOLI-BREE MOTEL
440 EAST SHORE DR
CLEARWATER FL 33767 - 2031
SIL VESTER, MARK R
SILVESTER, AMANDA A
THE OAST STUNTS GREEN
HERSTMONCEUX
EAST ESSEX BN274PN 00000-
GREAT BRITAIN
CLEARWATER REAL ESTATE
HLDGS
PO BOX 14184
TAMPA FL 33690 - 4184
MURRAY, SUSANL
902 ANCHORAGE RD
TAMPA FL 33602 - 5754
HILL, ANNE M TRE
2510 S DUNDEE ST
TAMPA FL 33629 - 6411
PRESTON, MICHAEL G TRE
419 E SHORE DR
CLEARWATER FL 33767 - 2028
HEILMANS RESTAURANTS INC
447 MANDALA Y AVE
CLEARWATER FL 33767 - 2013
. FERNANDEZ, ROBERT TRE
FERNANDEZ, MARILYN TRE
1605-B N MACDILL AVE
TAMPA FL 33607 - 3219
FOX, TRICIA
25 E SUPERIOR ST #3802
CHICAGO IL 60611 - 2112
YEAROUT, JANE
YEAROUT, JAMES
806 NARCISSUS
CLEARWATERBCH FL 33767-
1334
MUSICK, GREGORY J
400 BUTTONWOOD LN
LARGO FL 33770 - 4046
D'AMORE, EUGENE R
11 SAN MARCO ST # 607
CLEARWATER FL 33767 - 2061
DERVECH,ALEXANDERTRE
MANDAL Y LAND TRUST
1907 ORO CT
CLEARWATERFL 33764 - 6645
MANDALA Y 802
PO BOX 120
BLOOMINGDALE IL 60108 - 0120
BURGESS, PATRICIA M
GRIMM, THOMAS L
10225 60TH AVE
MERRILL WI 54452 - 7745
MUDD, JAMES A
MUDD, CECELIA K
C/O BURGER, TOM
6919 CHANCELLOR DR
CEDAR FALLS IA 50613 - 6956
HALL, DONALD R
1195 SKYE LN
PALM HARBOR FL 34683 - 1460
.YOFAN,AVI
YOF AN, JACQUELINE D
10 PAPAYA ST # 604
CLEARWATER FL 33767 - 2040
MANOLAKIS, STEVE
MANOLAKIS, JOANNE
11 SAN MARCO ST # 1006
CLEARWATER FL 33767 - 2062
COMPTON, HAROLD F SR
COMPTON, VICKI L
5712 SANDALWOOD DR
PLANO TX 75093 - 2912
HEILMAN FAMILY L TD
PTNSHP
941 BAY ESPLANADE
CLEARWATERFL 33767 -1002
NOVOGRA TZ, JOSEPH
7667 EQUITABLE DR
EDEN PRARIE MN 55344 - 3696
KOVACS, VIOLET K
23 ROCKAWAY ST
CLEARWATER FL 33767 - 1739
ANDERSEN, LARRY E
2156 BASSWOOD DR
LAFAYETTE HILL P A 19444 -
2328
222 E 13TH STREET CORP
44 EILEEN AVE
PLAINVIEW NY 11803 - 5203
B J E INC
630 S GULFVIEW BLVD
CLEARWATER FL 33767 - 2642
CRUDELE, MICHAEL J
CRUDELE, SHIELA M
1516 FOX HILL PL
V ALRICO FL 33594 - 4021
--------------,
NOVOGRA TZ, JOSEPH F 'OHR, GREGORY A -'OFAN,AVI
.1667 EQUITABLE DR MOHR, KATHLEEN L YOF AN, JACQUELINE D
EDENPRAIRIE MN 55344 - 3696 3251 BIRCHWOOD CT 1520 GULF BLVD # 1801
PALM HARBOR FL 34683 - 2111 CLEARWATER FL 33767 - 2957
.;
CLEARWATER, CITY OF PRESTON, MICHAEL G TRE NELSON, BARBARA A TRE
PO BOX 4748 419 E SHORE DR NELSON, GERALD R TRE
CLEARWATER FL 33758 - 4748 CLEARWATER FL 33767 - 2028 3705 OAKTON RIDGE
HOPKINS MN 55305 - 4442
REINHARDT, MARK ELSAKR, ASHRAF HARTMAN, DOLORES M TRE
REINHARDT, CONNIE K ELSAKR, MONA UTA 3-30-82
N3080 MEADE ST 808 SMOKERISE BLVD 1850 SAN MATEO DR
APPLETON WI 54913 - PORT ORANGE FL 32127 -7783 DUNEDIN FL 34698 - 3719
MANDALA Y INVESTMENTS NEUWOLF PARTNERS GREENBERG, ROBYN B
2201 4TH ST N STE 200 C/O MASICK, KENNETH 1306 PRESERVATION WAY
ST PETERSBURG FL 33704 - 4300 2100 CLEARWATER DR OLDSMAR FL 34677 - 4824
OAK BROOK IL 60523 - 1927
SAMPSON, THOMAS A STENBERG, ANDREW BIENSTOCK, JOSEPH S
SAMPSON, CAROLYN L 10 PAPAYA ST # 301 BIENSTOCK, PHYLLIS
16461 ROCKY POINT LN CLEARWATER FL 33767 - 2040 10 PAPAYA ST # 701
MORRISON CO 80465 - 2166 CLEARWATER FL 33767 - 2054
J & M PROP APOLLO BEACH MANDALA Y BEACH CLUB L TD KER, G CAMERON
907 BUNKER VIEW DR 2201 4TH ST N # 200 KER, LISA A
APOLLO BEACH FL 33572 - 2813 ST PETERSBURG FL 33704 - 4300 2426 BUTTERNUT CT
DUNEDIN FL 34698 - 2252
BARYLAK, EDWARD J PAPAYA TRUST ALIDINA, ARIF A
BARYLAK, CHRYSTINA 2028 PALMER DR ALIDINA, NOORA
3132 BRANCH RIVER RD NAPERVILLE IL 60564 - 5664 11 SAN MARCO ST # 807
MANITOWOC WI 54220 - 8717 CLEARWATER FL 33767 - 2062
SOTEREANOS, STELLA TSANGARIS, WILMA B J E C FUNDING INC
SOTEREANOS, STACEY TSANGARIS, NICHOLAS C/O JACK ECKERD CORP
307 S DITHRIDGE # 808 11 SAN MARCO ST # 1606 TAX DEPT
PITTSBURGH PA 15213 - 3519 CLEARWATER FL 33767 - 2076 PO BOX 4689
CLEARWATER FL 33758 - 4689
LA BELLE ELECTRIC INC DOWNS, JANE CHRISTOPHER, WILLIAM M
24546 21 MILE RD 46 JONATHAN DR CHRISTOPHER, SHEILA M
MACOMB MI 48042 - 5111 NEW ULM MN 56073 - 3343 PO BOX 965
BURNSIDE KY 42519 - 0965
KELLY, THOMAS L TRE PITTMAN, C CHRISTOPHER SP ARKS, SUSAN M
KELL Y, KATHLEEN F TRE PITTMAN, KAREN G 11 SANMARCO STN# 1105
11 SAN MARCO ST # 401 1099 SHIPW A TCH CIR CLEARWATER FL 33767 - 2069
CLEARWATER FL 33767 - 2060 TAMPA FL 33602 - 5736
ZAMANI, SAM S
FEIZIPOUR, MAHV ASH
1957 LOGAN MANOR DR
RESTON VA 20190 - 3276
NORUS, KEVIN
11816 MARBLEHEAD DR
TAMPA FL 33626-
MENKE DEV
537 E PETE ROSE WAY STE 400
CINCINNATI OH 45202 -
YEAROUT, JANE R
YEAROUT, JANET A
806 NARCISSUS
CLEARWATER BCH FL 33767-
1334
KAHANA, ELLIOT S
KAHANA, LOUISE
11 SAN MARCO ST # 603
CLEARWATER FL 33767 - 2060
E. D. Armstrong III, Esq.
Johnson, Pope, Bokor, Ruppel & Bums,
LLP
P.O. Box 1368
Clearwater, FL 33757
.PRESTON, MICHAEL G TRE
419 E SHORE DR
CLEARWATER FL 33767 - 2028
EPSTEIN, JOEL
FREEDMAN, GARRY N
40 DEERP A TH CT
OLDSMAR FL 34677 - 2054
ROSSDALE MGMT INC
1 STEPHANIE AVE
OTTAWA ON K2E 7A8 00030-
CANADA
KOENIG, NORBERT
KOENIG, BRUNHILDE
44 EILEEN AVE
PLAINVIEW NY 11803 - 5203
FLORIDA CLEARWATER
BEACH
HOTEL CO
PO BOX 7230
DES MOINES IA 50309 - 7230
Clearwater Beach Association
David MacNamee
827 Mandalay Ave.
Clearwater, FL 33767
.SOBEL, KATHY
2997 KENSINGTON TRCE
TARPON SPRINGS FL 34688 -
8457
OZYURT, GUNES E
OZYURT, PATRICIA A
11 SAN MARCO ST # 905
CLEARWATERFL 33767-
FLORIN, WOLFGANG M
GRAY, CHRISTOPHER
1883 LEXINGTON PL
TARPON SPRINGS FL 34688 -
4965
DELETIOGLU,ISMET
2581 1/2 N CLARK ST
CHICAGO IL 60614 - 1717
MALACHOWSKI, JERRY
MALACHOWSKI, DOROTHY
1426 SEMAR CT
MOUNT PROSPECT IL 60056 -
2984
Clearwater Neighborhoods Coalition
Doug Williams, President
2544 Frisco Drive
Clearwater, FL 33761
"..
.
.
AFFIDAVIT OF POSTING
STATE OF FLORIDA )
COUNTY OF PINELLAS )
Before me, the undersigned authority, personally appeared JAYNE E. SEARS,
who is personally known to me and, who first being duly sworn, deposes and says that:
1. She is a legal assistant employed by the law firm of JOHNSON, POPE,
BOKOR, RUPPEL & BURNS, LLP ("JPB").
2. JPB represents the applicants, CBR DEVELOPMENT I, LLC, a Florida
limited liability company, and CBR DEVELOPMENT II, LLC, a Florida limited liability
company in connection with a proposed development agreement (Case No. DV A 2004-
00005), concerning the property located at 470 and 500 Mandalay Avenue and 470,
489, 490 and 495 Beach Drive, Clearwater Beach, Florida ("Property").
3. On November 29, 2004, she posted six signs on the Property generally in
the locations shown on Exhibit "A" attached hereto and incorporated herein, giving
notice of the following hearing dates:
Community Development Board 12/14/04 at 2:00 p.m.
City Council
1/20/05 at 6:00 p.m.
Further affiant saith not.
~t.~
f1\YN E. SEARS
.r"-
SWORN TO, subscribed and acknowledged before me this Decemberj3 , 2004.
l/Jt~ 'If ~C1I- .{CUn--
Notary Publig; IL tu . .
Print name:A.IJ1c:W2-. t-!1 In 6-f( ~
My commission expires:
12/10/0403:11 PM
40900.101407
#332923 v1 - JMC/Sand Pearl/Aft of Posting
tf#Ay:r~;;:,;_ LINDA R. CUNNINGHAM
l~~( ~".d MY COMMISS,ION # DD 310910
,~~..~., EXPIRES. July 4, 2008
. f "IRr.li~,\\" Bonded Thru Notary Public Underwriters
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CITY OF CLEARWATER
NOTICE OF PUBLIC HEARINGS
REGARDING DEVELOPMENT AGREEMENT
The Community Development Board of the City of Clearwater, Florida, will hold a public hearing on
Tuesday. December 14.2004. beginning at 2:00 p.m., in the City Council Chambers, in City Hall, 3rd
floor, 112 South Osceola Avenue, Clearwater, Florida, to consider the following request:
The Community Development Board proposes a review of, and recommendation to the City Council, of a
Development Agreement between CBR Development I, LLC and CBR Development II, LLC and the
City of Clearwater. DV A2004-00QQ;i (Owners: Hunter Hotel Company and Mandalay Investments,
LLC.)
Legal Description
Clearwater Beach Park, Lots 1-13,43-56,65-71 and part of Lot 64 the revised map of Clearwater Beach
Resub, Blk 10 & 11, and Lots 2-15, Elk 9, and Miller's Replat Lots 1 & 10 and part of Lot 9 (470 & 500
Mandalay Avenue and 470, 489, 490 & 495 Beach Drive):
The Development Agreement proposed use consists of mixed use (260 overnight accommodation units,
120 attached dwellings and 11,000 square feet of retail sales and services). 9.77 total acres (hotel site 7.36
acres; residential site 2.41 acres) located on the west side of Mandalay Avenue between San Marco and
Ambler Streets
Additional information, including the development agreement, is available in the Planning Department at
the Municipal Services Building, 100 S. Myrtle Avenue, Clearwater, Florida, or call 562-4567.
Interested parties may appear and be heard at the hearing or file written notice of approval or objection
with the Planning Director or City Clerk prior to the hearing. Any person who decides to appeal any
decision made by the Board or Council, with respect to any matter considered at such hearings, will need
to request and obtain party status by the Board during the case discussion, a record of the proceedings
and, for such purpose, may need to ensure that a verbatim record of the proceedings is made, which
record includes the testimony and evidence upon which the appeal is to be based per Florida Statute
286.0105. Community Development Code Section 4-206 states that party status shall be granted by the
Board if person requesting such demonstrates that s/he is substantially affected. Party status entitles parties
to: personally testify, present evidence, argument and witnesses, cross-examine witnesses, appeal the
decision and speak on reconsideration requests.
An oath will be administered swearing in all participants in public hearing cases. If you wish to speak at
the meeting, please wait to be recognized, then state and spell your name and provide your address.
Persons speaking before the CDB shall be limited to three minutes unless an individual is representing a
group in which case the Chairperson may authorize a reasonable amount of time up to 10 minutes. The
Community Development Board will review the case and make a recommendation to the City Council for
final disposition.
Five days prior to the meeting, staff reports and recommendations on the above requests will be available
for review by interested parties between the hours of 8:30 a.m. and 4:30 p.m., weekdays, at the City of
Clearwater, Planning Department, 100 S. Myrtle Ave., Clearwater, FL 33756. Please contact Gina
Clayton, Long Range Planning Manager, at 562-4587 to discuss any questions or concerns about the
project and/or to better understand the proposal.
A copy of the Development Agreement is available in the Official Records and Legislative Services
Department, P.O. Box 4748, Clearwater, Florida. For additional information, call the Planning
Department at 562-4567.
.....
.
.
Cyndi Tarapani
Planning Director
Cynthia E. Goudeau, CMC
City Clerk
City of Clearwater
P.O. Box 4748, Clearwater, FL 33758-4748
YOU ARE BEING SENT THIS NOTICE IF YOU ARE THE APPLICANT OR OWN PROPERTY WITHIN 200
FT. OF THE SUBJECT PROPERTY.
A COPY OF THIS AD IN LARGE PRINT IS AVAILABLE IN THE OFFICIAL RECORDS AND
LEGISLATIVE SERVICES DEPARTMENT. ANY PERSON WITH A DISABILITY REOUlRING
REASONABLE ACCOMMODATIONS IN ORDER TO PARTICIPATE IN THIS MEETING SHOULD
CALL THE OFFICIAL RECORDS AND LEGISLATIVE SERVICES DEPARTMENT WITH THEIR
REOUEST AT (727) 562-4090.
Ad: 11/28/04
KEN BURKe: CLERK OF COURT
P1NELLAS COUNTY FLORIDA
INST# 2005034535 01/28/2005 at 04:47 PM
OFF REC BK: 14089 PG: 314-151
DocType:GOV RECORDING: $1174.50
DEVELOPMENT AGREEMENT FOR
PROPERTY
IN THE
CITY OF CLEARWATER
between
THE CITY OF CLEARWATER, FLORIDA
and
CBR DEVELOPMENT I, LLC AND
CBR DEVELOPMENT II, LLC
Dated as of t urtl
2(~
r
, 2005
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS....... ...... ............. ............. .............. .................. ..................... ............. 2
Section 1.01 Definitions................ ................. ............. .................... ...... ........................... 2
Section 1.02 Use of Words and Phrases......................................................................... 3
Section 1.03 Florida Statutes...... .......... .......... ........... .................... .................................. 4
ARTICLE 2. PURPOSEAND DESCRIPTION OF PROJECT..................................................... 4
Section 2.01 Finding of Public Purpose and Benefit ....................................................... 4
Section 2.02 Purpose of Agreement......................... ............ .............. .................;........... 4
Section 2.03 Scope of the Project.... ......................... ..... ................ ................ .................. 4
Section 2.04 Cooperation of the Parties................. ................. ......... ............................... 6
ARTICLE 3. REGULATORY PROCESS ..... ........... ....................... ..................................... ........ 6
Section 3.01 Land Development Regulations..................................... .............. ...... .... ..... 6
Section 3.02 Development Approvals and Permits .........................................................7
Section 3.03 Concurrency.......................... ........................ .............................................. 8
ARTICLE 4. PLANS AND SPECIFICATIONS.. ............ ............................................. .......... ....... 8
Section 4.01 Plans and Specifications........... ...... ..................... ........ ......................... ...... 8
ARTICLE 5. PROJECT DEVELOPMENT...... ............ ........... .......... ........... ...... ........................... 8
Section 5.01 Ownership of Project Site...... ......... ................. ........ ............. ....... ............... 8
Section 5.02 Project Site....... ....... ................... ....... ............ .................. .............. .............. 8
Section 5.03 Obligations of the City ................................................................................. 8
Section 5.04 Obligations of the Developer .................................................................... 11
ARTICLE 6. PROJECT FINANCING ............................... ... ............................ .......................... 12
Section 6.01
Section 6.02
Section 6.03
Section 6.04
Section 6.05
Section 6.06
Section 6.07
Section 6.08
Section 6.09
Section 6.10
Section 6.11
Section 6.12
Development Agreement
Page i
Notice of Project Financing to City............................................................ 12
Copy of Default Notice to City....... ................. ............. ..... ......................... 12
Intentionally Omitted .. ................. ......... .................................. ................... 12
Assignment of Rights Under Agreement to Project Lender ..................... 12
Notice to Project Lender ..... ............... ...................... ............. .................... 12
Consent of Project Lender ........... ;...... ............................... .... .... ...... ......... 13
Estoppel Certificates .................... .............. ........................ ....................... 13
Cooperation... ..................... ................... ......... .......... ..... ............................ 13
Reinstatement by Project Lender ....................................... ........ .............. 13
New Agreement. ................ ............... ....... ................. ................................ 13
Transfer of New Agreement............. ........ ................ ................................. 13
Survival.. ........................................ ........... ................. ................................ 14
F:~mc'lIunltlf\C1y Oewlopmont 'Agt 17 FlNAL,doc
ARTICLE 7. CONSTRUCTION OF PROJECT ..................................;..................................... 14
Section 7.01 Project Site ....... ....................... ................................................. ... .............. 14
Section 7.02 Construction of the Project ............. ................ .... ...... .... .......... ... ............. 14
Section 7.03 City not in Privity............. .................... ...... ..... ................... ................ ......... 16
Section 7.04 Construction Sequencing and Staging Area ............................................ 16
ARTICLE 8. INDEMNIFiCATION......... ............... ......... ................ ........ ..................................... 17
Section 8.01 Indemnification by the Developer ............................................................. 17
Section 8.02 Indemnification by the City................... ..................... ........................ ........ 17
Section 8.03 Limitation of Indemnification ..................................................................... 18
ARTICLE 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF
THE DEVELOPER.................................................. ....... ....................................... 18
Section 9.01 Representations and Warranties .... ....... ......................... ....... .......... ......... 18
Section 9.02 Covenants...... ................ .................................. ......... ................................ 19
ARTICLE 10. REPRESENTATIONS, WARRANTIES AND COVENANTS OF
TH E CITY ....... .. .. . .. .. .. .... .. ... .. . .... .. .. . ... . .. ... . .. . ..... . .. .. ...... .... . ... . .. . .. .. .. . .. ... .. . .. .... . .. .. . . .. 21
Section 10.01 Representations and Warranties ......... ............... ........ ...... ........ ................ 21
Section 10.02 Covenants................................ ............ ..................... ......... ........ ............... 21
ARTICLE 11. CONDITIONS PRECEDENT ................. ............... ................... .............. ............... 22
Section 11.01 The Developer Acquiring Project Site....................................................... 22
Section 11.02 Construction of Project......... ...... ....... ........ .............. ...... .._......................... 22
Section 11.03 Responsibilities of the Parties for Conditions Precedent .........................23
ARTICLE 12. DEFAULT; TERMINATION .................................................................................23
Section 12.01 Project Default by the Developer ..............................................................23
Section 12.02 Default by the City.............. ................... ..... ...................... ......................... 24
Section 12.03 Obligations, Rights and Remedies Cumulative ........................................25
Section 12.04 Non-Action on Failure to Observe Provisions of this
Agreement.......................... .............. ......................................................... 26
Section 12.05 Termination Prior to Commencement of Project ...................................... 26
Section 12.06 Termination Certificate ........... ............. .................. .......... .......................... 27
ARTICLE 13. RIGHT TO CONTEST............. .............. ....... ................... ...... ...... .............. .......... 27
Section 13.01 Right to Contest ....... ........................ ................ .............. ........ ................... 27
Section 13.02 Conditions...... ................... ..................... .................. .......... ......... .............. 27
Development Agreement
Page ii
F:'jmc'll1lOlte(G1y Oowtopment Agl17 FINAL.doc
ARTICLE 14. ARBITRATION ..... .......... ............ ......... ... ... ........... ......... ............ ...... ..... '" ...... ... ... 28
Section 14.01 Agreement to Arbitrate .................. ........... ............... ............ ...................... 28
Section 14.02 Appointment of Arbitrators.. .......... ........... ...... .......... ............ ..................... 28
Section 14.03 General Procedures... .................. ............ ......... ........................................ 29
Section 14.04 Majority Rule........................ ....... ............... ..................... .......................... 29
Section 14.05 Replacement of Arbitrator.......... ...................... ......................................... 29
Section 14.06 Decision of Arbitrators.... ..... .................. .......... ....... .............. ..................... 29
Section 14.07 Expense of Arbitration.. ...... ...... ............................... ......... ............. ............ 30
Section 14.08 Accelerated Arbitration.. .......... ............. ..................................................... 30
Section 14.09 Applicable Law............. ....... ................... ......................... .......................... 31
Section 14.10 Arbitration Proceedings and Records ........................... ................ ........ .... 31
ARTICLE 15. UNAVOIDABLE DELAy....................... ....... .......................................... ............. 31
Section 15.01 Unavoidable Delay..... ....... ................. ....... ....................................... ......... 31
ARTICLE 16. RESTRICTIONS ON USE.. ........................................... ................. ..... .......... ..... 32
Section 16.01 Project.......................... ....... ................... ....... ....... ........... .......................... 32
ARTICLE 17. FIRE OR OTHER CASUAL TV; CONDEMNATION ........................................... 32
Section 17.01 Loss or Damage to Project .................... ........................... ........................ 32
Section 17.02 Partial Loss or Damage to Project............................................................ 32
Section 17.03 Project Insurance Proceeds. .............. ....................... ........ ...... ............. ..... 32
Section 17.04 Notice of Loss or Damage to Project........................................................ 33
Section 17.05 Condemnation of Project or Project Site; Application
of Proceeds.............. .................... ............ .................. ............................... 33
ARTICLE 18. MISCELLANEOUS ..... ................. ................. ......... ........... ................. ................. 33
Section 18.01 Assignments.............................. ..... ........... ........... ....... .......... .................... 33
Section 18.02 Successors and Assigns...... ...... ................. .............................................. 34
Section 18.03 Notices... ............. ....... ..... ........................... ......... ...................................... 34
Section 18.04 Applicable Law and Construction .............................................................35
Section 18.05 Venue; Submission to Jurisdiction............................................................ 35
Section 18.06 Estoppel Certificates..... ........ ...... ..................... ..................... .................... 35
Section 18.07 Complete Agreement; Amendments ........................................................ 35
Section 18.08 Captions. ................. .................. ...... .......... ................ ......... ....................... 36
Section 18.09 Holidays...... .................................. .......... ....... ............................................ 36
Section 18.10 Exhibits................................. ........................ ............. ................................ 36
Section 18.11 No Brokers ................................................................................................36
Section 18.12 Not an Agent of City ........................... ....................................................... 36
Section 18.13 Recording of Development Agreement.................................................... 36
Section 18.14 Public Purpose. .................. ................... ..... ............................................... 36
Section 18.15 No General Obligation ... ................ .......... ...................................... ........... 36
Development Agreement
Page iii
F;'jmc:Ihuntef'C4ly O...lopmenl Agt 17 FI'W..doc
Section 18.16 Other Requirements of State Law............................................................ 37
Section 18.17 Technical Amendments; Survey Corrections ........................................... 37
Section 18.18 Term; Expiration; Certificate .. ......... .................................. ........................ 37
Section 18.19 Approvals Not Unreasonably Withheld ............... ........ ............. ......... .... .... 37
Section 18.20 Severability....................................... .......................................... ....... ........ 37
Section 18.21 Effective Date..................................... ....... .... ...... .............. ........................ 38
Development Agreement
Pageiv
F:'jmcVlunlet'C1y OewlopmenC Age 17 FINAL.doc
EXHIBITS
Legal Description of Controlled Property.... ................................ ......................... ........... ................ A
Project Description....... ..................... .............................................................................................. B
Minimum Quality Standard........................................................................................................... B-1
Beach Property Description ........... ...... ....... .............. ................................................................... B-2
Upland Property Description ...................... ........ ................. .... ................. .......... .... ........ .... .... ...... B-3
Project Site:........................ ............................................................................................................. C
Project Development Schedule ...................................................................................................... D
Covenant Regarding Trip Generation Management Program ....................................................... E
Covenant Regarding Hurricane Watch Closure.. ............. ............ ................ ........................ .......... F
List of Required Permits & Approvals................. ................................ ........................ .............. ...... G
Mandalay Improvements........................................................... ...................................................... H
Streetscape/Landscape Improvements - Mandalay Right-of-Way.............. ...... ................. ........ H-1
Lift Station Improvements............................................. ...................... ......................................... H-2
Lift Station Improvement Requirements ............. ......................... ...... ....... ................................... H-3
Baymont Improvements........ ............ ... ............................ .................................................................1
Streetscape/Landscape Improvements - Baymont Right-of-Way............................................... 1-1
Ambler Improvements................ ......... ......................... .................. ..................................................J
San Marco Improvements...................... ........................................ ................................................. K
Amenity Improvements ........ ...... ............... ........................................ .................................. ............ L
.Covenant of Unified Use..... ...................... ...... ........ ...... ....... .......... .................................................M
Boat Slips.................................................................... .................. .................................................. N
Agreement - Boat Slips .......................................................................................... ................ ..... N-1
Development Agreement
Page v
F:'jmC'IMJntOf'Cay DellOlopment AgI17 FlNAL.doe
DEVELOPMENT AGREEMENT FOR
PROPERTY IN THE CITY OF CLEARWATER
This Develo~~t Agreement for Property in the City of Clearwater (the "Agreement") is
made as of this day of U()JlVo...f;!p, 2005, by and between THE CITY OF
CLEARWATER, FLORIDA, a Florida municipal co oration (the "City") and CBR Development I,
LLC, a Florida limited liability company and CBR Development II, LLC, a Florida limited liability
company (collectively, the "Developer").
WITNESSETH:
WHEREAS, the City of Clearwater has embarked on a community revitalization effort for
Clearwater Beach;
WHEREAS, one of the major elements of the City's revitalization effort is a preliminary
design for the revitalization of Clearwater Beach entitled Beach by Design;
WHEREAS, the City has adopted Beach by Design pursuant to the Pine lias Planning
Council's Rules in support of the City's Comprehensive Plan;
WHEREAS, Beach by Design proposed a limited number of catalytic resort projects to
reposition and re-establish Clearwater Beach as a quality, family resort community and further
provides for a limited pool of additional hotel units (Hotel Unit Pool) to be made available for such
projects;
WHEREAS, because increased residential density on barrier islands is a critical concern
. under Florida law , Beach By Design limits the use of the Hotel Unit Pool to overnight
accommodations and limits tenancies to 30 days or less;
WHEREAS, a key criteria for eligibility for the Hotel Unit Pool is the maintenance and
operation of the project of as resort hotel operating under a national or international "flag" or other
comparable marketing affiliation or program;
WHEREAS, Developer has proposed to develop a mixed use project, including a quality
resort hotel, on certain property fronthg on Mandalay Boulevard (the "Project Site");
WHEREAS, it is necessary that the City take certain actions in order to make it possible for
Developer to develop the Project Site in accordance with the goals and objectives of Beach by
Design; .
WHEREAS, the City has conducted such hearings as are required by and in accordance
with Chapter 163.3220 et seq. Fla. Stat. and applicable law;
WHEREAS, the City has determined that as of the Effective Date of this Agreement, the
proposed development is consistent with the City's Comprehensive Plan and Land Development
Regulations;
WHEREAS, at a duly called public meeting on JCU\ut.:t("~ 90 . ,2005, the
City Council approved this Agreement, and authorized and directed its execution by the appropriate
officials of the City; and
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WHEREAS, the members of Developer have approved this Agreement and have authorized
the undersigned individual to execute this Agreement on its behalf.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties hereby agree as follows:
ARTICLE 1. DEFINITIONS.
1.01. Definitions. The terms defined in this Article 1 shall have the following meanings except
as herein otherwise expressly provided:
1. "Agreement" means this Agreement for Development of Property including any Exhibits and
any amendments thereto.
2. "Beach by Design" or "Plan" means the strategic redevelopment plan for Clearwater Beach
dated 2001 which was adopted by the City Council pursuant to the provisions of the Pinellas
County Planning Council's Rules for the designation of a Community Redevelopment
District, as amended by Ordinance 7294-04.
3. "Beach Club Outside Membership" means a Beach Club member that does not own or lease
a residence within the geographic area bounded on the west by the Gulf of Mexico, on the
east by Clearwater Bay, on the north by Rockaway Street and the south by Papaya Street.
4. "City" means the City of Clearwater, Florida, a Florida municipal corporation.
5. "City Council" means the governing body of the City.
6. "Commencement Date" means the date on which Developer commences or causes a
Contractor to commence construction of a Phase of the Project (see Section 7.02.1.a.).
7. "Completion Date" means the date on which the last certificate of occupancy required for the
Project is issued.
8. "Construction Completion" means the date a Construction Completion Certificate is issued
for a Phase of the Project (see Section 7.04).
9. "Controlled Property" means those properties within the Project Site which are owned by
Developer or subject to a purchase contract in favor of the Developer or an affiliate or
nominee on the Effective Date of this Agreement (see Section 5.01) which are more
particularly described in the legal description set out in Exhitit A to this Agreement.
9. "Developer" means, for the purposes of this Agreement, CBR Development I, LLC, and its
successors and assigns as provided in Article 18.
10. "Effective Date" means the date of approval and execution of this Agreement.
11. "Exhibits" means those agreements, diagrams, drawings, specifications, instruments, fonns
of instruments, and other documents attached hereto and designated as exhibits to, and
incorporated in and made a part of, this Agreement.
12. "Hotel Phase" of development means the portion of the Project as depicted on Exhibit C,
including the quality resort hotel containing a minimum of two hundred forty (240) rooms
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which may be undertaken, but shall not be required to be completed before other portions of
the Project are commenced.
13. "Hotel Unit Pool" means that hotel unity density pool created by the City pursuant to Beach
By Design. .
14. "Meeting Space" means any building floor area which can be used in conjunction with
conference or meeting activities.
15. "Permits" means all land development approvals and consents required to be granted,
awarded, issued, or given by any governmental authority in order for construction of the
Project, or any part thereof, to commence, continue or be completed.
16. "Plans and Specifications" means, as to each part of the Project to be developed, the site
plan for the Project to be developed, filed with the City as required by the Land Development
Regulations for the purpose of review and approval.
17. "Project" means, collectively, the development of a mixed use project including quality resort
hotel, beach club, residential condominium and commercial components (retail, restaurant,
office) proposed by the Developer as described in Section 2.03( 1) of this Agreement and the
Project Description which is attached hereto as Exhibit~.
18. "Project Site" means the land area generally bounded on the east by the western edge of
the right-of-way of Mandalay Boulevard, on the north by the southern boundary of Lots 2-4
of Millers Replat (PB 26, Pg 17) on the south by the northern right-of-way of San Marco
Street and on the west by the Gulf of Mexico, which is more particularly described and
depicted on Exhibit C (see Section 5.02).
19. "Residential/Retail Phase" of development means the portion of the Project as depicted on
Exhibit C, including the four (4) story residential condominium building with retail on the
ground floor.
20. "Residential Tower Phase" of development means the portion of the Project as depicted on
Exhibit C, including the fifteen (15) story residential condominium building.
21. "Termination Date" means the date a termination certificate is issued pursuant to Article 12.
22. "Termination for Cause" means a termination which results from an uncured, material breach
of the Agreement.
23. "Unavoidable Delay" means a delay as described in Article 15 hereof.
24. "Vacation of Rights-of-Way" means the.abandonment of the right-of-way of Beach Drive
(formerly N. Gulf Boulevard) between the north right-of-way of San Marco Street and the
south right-of-way of Baymont Street by the City in favor of Developer, in order that the goals
and objectives of the Comprehensive Plan may be better accomplished.
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 pubJic bodies, as well as natural persons. "Herein,"
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"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 (2004), as
amended from time to time.
ARTICLE 2. PURPOSE AND DESCRIPTION OF PROJECT.
2.01. Finding of Public Purpose and Benefit The proposed Project, including the acquisition
of the Controlled Property by the Developer and the design, construction, completion and
operation of the Project, and each part thereof, 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, including,
without limitation, the addition of resort hotel rooms adjacent to the beach providing for
transient occupancy pursuant to the standards established hereunder, (5) to further the
public interest on Clearwater Beach, and (6) to implement Beach by Design, including the
creation of the new quality hotel resort to be constructed as a part of the. Project.
2.02. Purpose of Agreement The purpose of this Agreement is to further the implementation
of Beach by Design by providing for the development of the Project Site and the construction
of certain public improvements, 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 Project shall only include resort hotel, beach club, spa, fitness center, residential
and commercial uses (retail, restaurant and office), private parking and appropriate
accessory uses and shall be developed in substantial conformity with the Project
Description which is attached as Exhibit~. When all required approvals have been
granted by the appropriate authorities pursuant to applicable law, the intensity of
permitted use on the Project Site shall be:
Hotel- not less than 240 and not more than 260 units including a minimum
of 20,000 square feet of Meeting Space and other amenities as further
described on Exhibit~.
Residential units - not to exceed 120 units.
Beach Club - not to exceed 160 Beach Club Outside Memberships subject
to adjustment as provided below.
Commercial/Retail - not more than 11,000 square feet of floor area, not
more than 3,000 sq. ft. of which may be restaurant.
Private parking - a minimum of 431 parking spaces are to be provided based
on the following formula:
1.5 spaces for each condominium unit
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.715 spaces for each hotel unit
2.7 spaces for each 1,000 square feet of commercial use
1.0 spaces for each 5 Beach Club Outside Memberships
In the event the number of condominium or hotel units or the square footage
of commercial use are reduced, the parking requirements shall be reduced in
accordance with .the above formula. In the event total parking spaces
provided is less than the reduced amount approved by the COB (431
spaces), Developer shall reduce Beach Club Outside Memberships by 5
members for each space not provided and in the event total parking spaces
provided are more than the reduced amount approved by the COB (431
spaces), Developer may increase Beach Club Outside Memberships by 5
members for each additional space provided.
2. Nothing shall preclude the Developer from developing or operating all or portions of
the Project elements using any ownership format permitted underFlorida Statutes
including fee simple, condominium, timeshare or fractional ownership formats
3. Up to twenty-five percent (25%) of the hotel units may be suites with kitchens,
including all typical kitchen equipment and amenities. In addition, partial kitchens or
mini-kitchens may be allowed.
4. The following covenants and restrictions shall be applicable to all hotel units within
the Project regardless of ownership formats utilized. Notwithstanding any other
provision of this Agreement, no occupancy in excess of thirty (30) days per stay shall
be permitted in any hotel unit which is developed as a part of the Project. In
addition, no hotel unit shall be used as a primary or permanent residence and a
minimum of 200 hotel units shall be required to be available to transient hotel guests
for no fewer than 330 days in any calendar year, subject to force majeure events
making such rooms unavailable for occupancy. In order to assure the high quality
resort experience called for under this Agreement, a minimum of 200 hotel units shall
be operated by a single hotel operator who shall meet the requirements as to
operating standards set forth in Exhibit B-1 of this Agreement. Prior to the issuance
of a certificate of occupancy for the resort hotel, the Developer shall record a
covenant and restriction which is enforceable by the City, substantially in accordance
with Exhibit.E, limiting the use and operation of the hotel units, implementing this
paragraph.
5. As a condition of the allocation of hotel units from the Hotel Unit Pool pursuant to the
designation of Clearwater Beach as a Community Redevelopment District pursuant
to the Pinellas County Planning Council's Rules, the Developer shall comply with
each of the standards established in Beach by Design, including:
a. The resort hotel which is a part of the Project shall provide a full range of on
and off site amenities for the guests of the resort, including a full service
restaurant, room service, valet parking, exercise facilities, pool, and meeting
areas and access to boating, fishing and golf off-site. Off site amenities may
be provided through a concierge service.
b. The resort hotel which is a part of the Project shall be designed and operated
as a national or international "flag" or other comparable marketing affiliation
or program which will facilitate the repositioning of Clearwater Beach as a
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national and international resort destination.
c. Prior to the issuance of a certificate of occupancy for the resort hotel which is
a part of the Project, the Developer shall record a covenant and restriction
which is enforceable by the City, substantially in accordance with Exhibit E,
limiting the use and operation of the resort, obligating the Developer to
develop, implement and operate at all times when the resort hotel is open, a
Trip Generation Management Program which shall include the provision of
non-private automobile access to and from the resort which shall include at
least an airport shuttle and resort-provided transportation to off-site amenities
and attractions.
d. Prior to the issuance of a building permit authorizing the construction of the
resort hotel units, the Developer shall record a covenant and restriction
which is enforceable by the City, substantially in accordance with Exhibit E,
on the use and operation of the resort, that imposes certain use restrictions
on the Hotel Phase and obligates the Developer to close and vacate all
persons (except for emergency personnel required to secure and protect the
facilities) from the resort hotel within twelve (12) hours after the issuance of a
hurricane watch which includes Clearwater Beach -by the National Hurricane
Center.
2.04. Cooperation of the Parties. The City and the Developer recognize that the successful
development of the Project 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 tothe full extent contemplated hereby and the
Project is designed, constructed, completed and operated as provided herein.
ARTICLE 3. REGULATORY PROCESS.
3.01. land Development Regulations.
1. Land Use Desianation. The Project Site is designated Resort Facilities High in the
Comprehensive Land Use Plan and zoned Tourist District in the City's Land
Development Regulations.
2. Amendments to Land Develooment Reaulations. The City covenants and agrees to
cooperate with Developer to the extent permitted by law in regard to any text or map
amendment to the City's Land Development Regulations which may be necessary in
order for Developer to carry out the Project as described in Section 2.03.
3. Allocation of Hotel Unit Pool Units. Subject to the terms and conditions of this
Agreement, the City agrees to allocate and grant to Developer from the Hotel Unit
Pool an additional one hundred forty-one (141) hotel units to the Project Site in
accordance with applicable law. The allocation of additional hotel units from the
Hotel Unit Pool shall expire and be of no further force and effect unless the
Commencement Date occurs on or before the deadline hereafter set forth in Section
7.02.1.a.
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4. Special Settlement Stipulation Rights. The City recognizes that portions of the
Project Site are subject to a Final Judgment By Consent entered by the Circuit Court
of Pinellas County in City of Clearwater v. Gray, Case No. 85-4145-15 and Thacker,
et al v. City of Clearwater, Case No. 86-17457-16 (as amended, the "Consent
Decree") which increases permitted density on a portion of the property.
3.02 Development Approvals and Permits.
1. Applications for Develooment Aoproval. The Developer shall prepare and submit to
the appropriate governmental authorities, including the City, applications for approval
of all plans and specifications necessary for the Project, and shall bearall costs of
preparing such applications, applying for and obtaining such permits, including
payment of any and all applicable application, inspection, regulatory and impact fees
or charges. The City shall, to the extent possible, expedite review of all applications,
including foundation permits. A list of all permits and approvals required to
implement the provisions of this Agreement is attached as Exhibit G. The failure of
this Agreement to address a particular permit, condition, or term of restriction shall
not relieve the Developer of the necessity of complying with the law governing said
permitting requirements, conditbns, terms or restrictions.
2. Schedule. A Project Development Schedule is attached to this Agreement as Exhibit
D that identifies anticipated commencement and completion dates for each Phase
of the Project.
3. City Coooeration and Assistance. The City shall cooperate with the Developer in
obtaining all necessary Permits required for the construction, completion and
opening for business of the Project. If requested by the Developer and authorized
by law, the City will join in any application for any Permit, or, alternatively,
recommend to and urge any governmental authority that such Permit or Permits be
issued or approved.
4. City Authoritv 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 approvalsby 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.
5. Imoact Fees. The City shall use its best efforts to secure or provide any lawfully
available credits against impact fees applicable to the Project which are authorized
under existing laws and regulations for public improvements constructed and paid for
by the Developer. In the event that the City is unable to secure a credit against any
impact fees, the City shall use its best efforts, within the limits of the applicable law,
to allocate impact fees collected from the Developer to the public improvements
which are described in Exhibits H, 1, J and ~ to this Agreement or other
improvements in the immediate vicinity of the Project Site.
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3.03. Concurrency.
1. Concurrency Reauired. The parties hereto recognize and acknowledge that Florida
law (specifically, Part II, Chapter 163, Florida Statutes, and Rule 9J-5, Florida
Administrative Code, collectively the "Growth Management Acf') imposes restrictions
on development if adequate public improvements are not available concurrently with
that development to absorb and handle the demand on publiC services caused by
development. The City has created and implemented a system for monitoring the
effects of development on public services within the City. The Developer recognizes
and acknowledges it must satisfy the concurrency requirements of Florida law and
the City's regulations as applied to this Project.
2. Reservation of Caoacity. The City hereby agrees and acknowledges that as of the
Effective Date of this Agreement, the Project satisfies the concurrency requirements
of Florida law. The City agrees to reserve the required capacity to serve the Project
for the Developer and to maintain such capacity for a period of three (3) years from
the Effective Date of this Agreement and that such period shall be automatically
extended for an additional three (3) years if the Developer commences construction
within the initial three (3) year period. The City recognizes and acknowledges that
the Developer will rely upon such reservation in proceeding with the Project.
3. Required Public Facilities. In addition to the obligations of the City and the
Developer set out in Article 5 of this Agreement, the Public Utilities Department of
the City will provide potable water service and sanitary sewer service to the Project.
ARTICLE 4. PLANS AND SPECIFICATIONS.
4.01. Plans and Specifications.
1. Responsibility for Preoaration of Plans and Soecifications. 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 Project.
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. PROJECT DEVELOPMENT.
5.01. Ownership of Project Site. The Developer is the owner or contract purchaser of certain
parcels of land (each, a "Parce'" and collectively, the "Parcels") within the Project Site which
are more particularly described in ExhibitA to this Agreement rControlled Property"}.
5.02. Project Site. The Project Site consists of those properties located generally in an area
which is bounded by the east by the western edge of the right-of-way of Mandalay
Boulevard, on the north by the southern boundary of Lots 2-4 of Millers Replat (PB 26, Pg
17) on the south by the northern right-of-way of San Marco Street and on the west by the
Gulf of Mexico, as more particularly described in Exhilit C.
5.03. Obligations of the City.
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1. Vacation of Rights-of-Way. The Developer shall apply for and the City Council shall
consider the adoption of an ordinance vacating the right-of-way of Beach Drive
(formerly North Gulfview Boulevard) between San Marco Street and Baymont Street
as depicted on Exhibit C.
2. Mandalav Improvements. The Developer shall, at its expense, realign the curb on
Mandalay Avenue, construct a new sidewalk, related streetscape improvements and
landscape improvements as further described in Exhibit H (the "Mandalay
Improvements"). The City shall grant to Developer, at Developer's expense, the right
to relocate the electrical panels for the lift station at Mandalay and Baymont as
described in Exhibit H-1 (the "Lift Staton Improvements").
3. Permits. The City will cooperate and coordinate with the Developer with regard to all
permit applications, including those to state agencies, and will facilitate or expedite,
to the greatest extent possible, the permit approval process.
4. Bavmont Imorovements. The Developer, at its expense, shall construct streetscape
and landscape improvements (the "Baymont Improvements"), as further described in
Exhibit 1, provided that such improvements shall not interfere with or obstruct the use
of Baymont Street for pedestrian and vehicular movement in accordance with the
provisions of Beach by Design and such improvements are consistent with the
provisions of Beach by Design and the City Charter.
5. Ambler Street Improvements. The City shall grant the Developer the authority to
construct, at the Developer's expense, landscape and streetscape improvements
within the existing Ambler Street right-of-way and building improvements and
associated pedestrian facilities within the pedestrian easement reserved to the City
in Official Records Book 2228, Page 720 of the Public Records of Pine lias County,
Florida (the "Ambler Street Improvements"), as further described on Exhibit J.
Provided however, that such improvements shall not interfere with or obstruct the
use of Ambler Street for pedestrian and vehicular movement or the use of the
pedestrian easement so as to reduce the width or clearance height of the pedestrian
underpass from the existing as-built condition prior to commencement of the Project;
and provided that such improvements are consistent with the provisions of Beach by
Design and the City Charter.
6. San Marco Imorovements. The City shall grant the Developer the authority to
construct, at its expense, the sanitary sewer line in the San Marco right-of-way ("San
Marco Improvements") as further described on the attached Exhibit K Developer
shall be responsible for all costs of relocation, including the cost of restoring San
Marco.
7. Vacation of Plat. The Developer shall prepare, at its expense and submit to an
application for vacation and City shall consider the vacation of that part of the plat of
Clearwater Beach Park as recorded in Plat Book 10, Page 42 of the Public Records
of Pinellas County, Florida and other plats of record (the "Existing Plats") which
include the Project Site and replat said property as reasonably required for the
development of the Project.
8. Conveyance of Beach Property to City. Developer agrees to convey to City by
special warranty deed, free and clear of liens and encumbrances, the real property
described on the attached Exhibit B-2 (the "Beach Property"). City agrees to accept
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the conveyance of the Beach Property as additional consideration for the allocation
of the additional hotel units from the Hotel Unit Pool and, as approved by the City
Manager, in satisfaction of the Recreation Facility Land Fees and Open Space Fees
as to the Project. Developer shall not be excused from payment of the Recreation
Facility Fees which shall be due and payable in accordance with the City ordinance
imposing such fees. The property owned by Developer between the Beach Property
and the portions of the Project site to be improved, as described on the attached
Exhibit B-3, is hereafter referred to as the "Upland Property". The general public
shall be entitled to continue to use the Upland Property as the general public is
currently using such property. Future use of the Upland Property by the general
public shall not unreasonably interfere with or disturb the use of such property by
Developer and its successors, assigns, tenants, invitees and guests. The Developer
and its successors, assigns, tenants, invitees and guests shall be entitled to use the
Beach Property in the future to the same extent and in the manner as the general
public. The City shall have the exclusive right to grant concessions as to the Beach
Property. Subject to applicable City regulations and permitting requirements, the
Developer may operate on the Upland Property concessions related to the use of the
beach and the adjacent waters by the general public and tourists visiting the beach
area, and by the Developer, its successors, assigns, tenants, invitees and guests.
Such concessions will be limited to the sale, rental or use of equipment, products
and services as is then common to the recreational and other use of the beach and
the recreational uses on, in and under the adjacent waters of the Gulf of Mexico. City
and Developer agree to impose a land use restriction on the Beach Property and
Upland Property that will prohibit use of such property for jet-ski or para-sail
operation concessions.
9. Aooroval of Construction Beyond CCCL and/or in V Zone. The City acknowledges
that for Developer to provide a quality beach resort, it will be necessary for
Developer to construct and operate certain improvements below the base flood
elevation and/or seaward of the Coastal Construction Control Line, such
improvements to include pool(s), spa(s), decks, pool bathrooms, pool bar/grill,
boardwalks, landscaping and associated improvements and facilities (the "Amenity
Improvements") as further described on the attached Exhibit 1,. The City shall
cooperate with Developer in obtaining all necessary Permits for the Amenity
Improvements and agrees that such Amenity Improvements are necessary
requirements for a quality beach resort hotels.
10. Boat Dockina Facilities. The City owns certain real property adjoininga boat basin
immediately to the North of the Belle Harbor Condominium project ("Boat Basin").
The City agrees to jointly pursue with Developer the acquisition of a sovereignty
submerged lands lease ("SSLL ") from the State of Florida that will permit
construction of boat docking facilities ("Boat Docking Facilities"). Developer agrees to
pursue, at Developer's expense, the SSLL, all required Permits for construction of
boat slips (the "Boat Slips") in the Boat Basin as conceptually depicted on the
attached Exhibit N. In the event Developer is able to obtain the SSLL and Pennits for
the Boat Slips, the City and Developer shall enter into an agreement in the form
attached as Exhibit N-1 that will authorize the Developer to construct the new Boat
Slips, at Developer's sole expense, and provide for the Developer and its designated
successors and assigns to have the right to utilize sixty-seven percent (67%) of such
Boat Slips so long as the Boat Docking Facilities continues to exist. The agreement
will provide (i) for Developer to pay all maintenance and repair costs for the Boat
Slips, (ii) for use of the Boat Slips to be limited to Project owners, tenants and
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guests, (iii) for Developer to provide a shuttle service to the Boat Slips from the
Project, and (iv) for the assignment of Boat Slips to be limited to Project owners.
11. Sales/Construction Offices. The City acknowledges Developer's plan to construct
sales/construction offices on a portion of the Project Site. City agrees to expedite the
review of any permit application submitted by Developer as to the sales/construction
offices.
12. Improvements Within Right-of-Way. The City authorizes the Developer to make
certain Project improvements within the City rights-of-way adjoining the Project Site
as depicted on the approved site plan ("Project Improvements"). City will grant to
Developer a Right-of-Way Permit to install, maintain, repair and replace all
encroaching Project Improvements approved by the City; provided, however, that
Developer shall be solely responsible for all costs relating to the Project
Improvements and shall execute and deliver to City a maintenance agreement in
form and content reasonably acceptable to City.
13. Timelv Comoletion. The City recognizes the public importance of the timely
completion of the proposed Project, and time is deemed to be of the essence. The
City considers this Agreement as overall authority for the Developer to proceed to
permit, and agrees to implement a fast-track review, permitting, and inspection
program for this Project.
5.04. Obligations of the Developer.
1. Resort Hotel Proiect. The Developer shall build and operate a no less than two
hundred forty (240) room resort hotel to be operated as a quality resort in
accordance with the Minimum Quality Standard as provided for in ExhibitB-1.
2. Resoonsibility for On-Site Costs. The Developer shall be responsible for all on-site
costs relative to the development of the Project, including the private parking spaces.
3. Mandalay. Bavmont. Ambler and San Marco Imorovements. The Developer shall be
responsible for all design and construction costs for all Mai1dalay and Baymont
Improvements as provided on Exhibits Hand! and for all design and construction
costs for all Ambler and San Marco Improvements as provided on Exhibits J and K
4. Storm Drainage Imorovement The Developer shall design and construct storm
drainage improvements for the City in the San Marco Street right-of-way in
accordance with the approved site plan ("San Marco Drainage Improvements"). The
Developer further agrees to design and construct storm drainage improvements
north of Baymont Street within the Mandalay Avenue right-of-way and the
connection to Clearwater Bay as shown on the approved site plan ("Mandalay
Drainage Improvements"). City shall reimburse Developer for all reasonable design
and construction costs for the San Marco Drainage Improvements. Developer shall
pay all design and construction costs for the Mandalay Drainage Improvements.
5. Covenant of Unified Use. The Developer hereby agrees to execute the covenant of
unified use and development for the Controlled Property providing that the Controlled
Property shall be developed as a single project and operated and used as a unified
mixed use project, which is attached as Exhibit M; provided however, that nothing
shall preclude the Developer from selling all or a portion of the Controlled Property in
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a condominium form of ownership.
6. Proiect Obliaations. The Developer agrees to carry out the redevelopment of the
Project Site by completing the purchase of all of the Controlled Property, preparing
project plans and specifications, obtaining approvals by governmental authorities
necessary for development of the Project, demolishing existing improvements,
constructing various private improvements on the Project Site and operating the
Project as a unified and integrated project. The Developer shall take all actions
necessary to maintain control of the Project Site, until certificate(s) of occupancy are
issued by the City.
ARTICLE 6. PROJECT FINANCING.
6.01. Notice of Project Financing to City. As soon as the Developer shall have obtained any
financing for any portion of the Project, the Developer shall provide the City with a sworn
statement identifying the Project Lender(s) and documenting the type of financing that the
Project Lender(s) has issued in favor of the Developer for the Project.
6.02. Copy of Default Notice to City. The Developer covenants and agrees that any Project
Financing documents shall include provisions which provide that in the event any Project
Financing shall become due and payable by maturity or acceleration, the Project Lender
shall give written notice thereofto the City by certified mail, return receipt requested. Such
notice from the Project Lender to the City shall state the basis of the default by the
Developer and shall include copies of any pleadings in any proceeding instituted by the
Project Lender(s) incident thereto.
6.03. Intentionally Omitted.
6.04. 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 instrument 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.
6.05. Notice to Project Lender. If Developer shall encumber its interests under this Agreement,
and if Developer or the holder of the indebtedness secured by the assignment shall give
notice to City of the existence of the assignment and the address of the holder, then City will
mail or deliver to the Project Lender, a duplicate copy of all notices in writing which City may.
from time to time, give to or serve on Developer under and pursuant to the terms and
provisions of this Agreement. Copies shall be mailed or delivered to the holder at, or as near
as possible to, the same time the notices are given to or served on Developer. The Project
Lender may, at its option, at any time before the rights of Developer shall be terminated as
provided in this Agreement, do any act or thing that may be necessary and proper to be
done in the observance of the covenants and conditions of this Agreement or to prevent the
termination of this Agreement. All payments so made and all things so done and performed
by the Project Lender shall be as effective to prevent a forfeiture of the rights of Developer
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under this Agreement as they would have been if done and performed by Developer.
6.06. Consent of Project Lender. This Agreement cannot be amended,. canceled, or surrendered
by the Developer without the consent of the Project lender.
6.07. Estoppel Certificates. The City agrees at any time and from time to time upon not less than
ten (10) days prior written request by the Developer to execute, acknowledge, and deliver to
any Project lender a statement in writing certifying that this Agreement is unmodified and in
full force and effect (or if there have been modifications), being intended that any such
statement delivered pursuant to this Article 6 may be relied upon by the Project lender.
6.08. 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.
6.09. Reinstatement by Project Lender. If this Agreement is terminated by reason of the
happening of any event of default, and after any notice and cure period provided, City shall
give prompt notice of this right to reinstate to the Project lender, which right to reinstate shall
be for a period of ninety (90) days. However, the Project lender shall not have any personal
liability for performance of the Developer's obligations under this Agreement unless and until
the Project lender acquires title to the Project Site and expressly assumes such liability.
6.10. New Agreement City shall, on written request of a Project lender which has acquired title
to the Project Site by foreclosure or deed in lieu of foreclosure, enter into a new Agreement
with such Project lender, or its designee, within twenty (20) days after receipt of such
request, which new agreement shall be effective as of the date of such termination of this
Agreement for the remainder of the term of this Agreement and upon the same terms,
covenants, conditions and agreements as are contained in this Agreement, provided that the
Project lender or its designee shall:
1. Pay to City at the time of the execution and delivery of said new agreement any and all sums
which would have been due under this Agreement from the date of termination of this
Agreement (had this Agreement not been terminated) to and including the date of the
execution and delivery of said new agreement, together with all expenses, including but not
limited to, attomeys'fees (for trials and appeals) in a reasonable amount incurred by City in
connection with the termination of this Agreement and with the execution and delivery of the
new agreement, and
2. On or prior to the execution and delivery of said new agreement agree in writing that
promptly following the delivery of such new agreement, such Project lender or its designee
will perform or cause to be performed all of the other covenants and agreements in this
Agreement on Developer's part to be performed to the extent that Developer shall have
failed to perform the same to the date of delivery of such new agreement.
6.11. Transfer of New Agreement. The Project lender shall have the right to assign or transfer
the new agreement to any person or entity without the City's consent so long as the new
agreement is in good standing and Project lender is current in obligations owed to the City.
Notwithstanding the foregoing, any Project lender that is assigning the new agreement and
the estate created thereby shall provide to the City notice of assignment and shall cause to
be executed and delivered in a form reasonably acceptable to the City an assumption
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agreement from the assignee pursuant to which said assignee assumes the duties,
obligations, covenants, conditions and restrictions of the new agreement. Upon such
assignment and assumption by the assignee, the assignor shall be released of all liability
under the new agreement and, upon request of the assignor, the City shall execute and
deliver to the assignor a release agreement in a form reasonably acceptable to the assignor
evidencing such release of the assignor from any liability underthe new agreement.
6.12. Survival. The provisions of this Article 6 shall survive the termination of this Agreement and
shall continue in full force and effect thereafter to the same extent as if Article 6 were a
separate and independent contract made by the City, the Developer and the Project Lender.
ARTICLE 7. CONSTRUCTION OF PROJECT.
7.01. Project Site. The Developer shall be responsible for all site investigation, environmental
testing, demolition and site clearing.
7.02. Construction of the Project.
1.
a.
Commencement Developer shall construct the Project substantially in
accordance with the Plans and Specifications therefor. Developer shall
commence construction of the Hotel Phase of the Project on or before the
earlier of (i) one (1) year after receipt of all development approvals for the
Project, other than building permits; providecj, however, that the running of
the one (1) year period shall be tolled for the period commencing on the date
of submittal by Developer for building permits for Hotel Phase and ending on
the date of issuance of the building permits for Hotel Phase, or (ii) two (2)
years after the Effective Date (such deadline being the "Hotel
Commencement Deadline"), and shall thereafter diligently pursue completion
of the Hotel Phase of the Project. Developer shall commence construction of
the Residential Tower Phase of the Project on or before the Hotel
Commencement Deadline and shall thereafter diligently pursue completion of
the Residential Tower Phase of the Project. Developer shall commence
construction of the Residential/Retail Phase of the Project within two (2)
years after the Hotel Commencement Deadline and shall thereafter diligently
pursue completion of the Residential/Retail Phase of the Project.
b. For purposes of this Section 7.02, "commence construction" means
commencement of meaningful physical development of that part of the
Project as authorized by the Building Permit therefor which is continued and
diligently prosecuted toward and with the active of completion of that part of
the Project. The date that Developer shall commence construction of each
Phase is the "Commencement Date" of such Phase.
c. All obligations of Developer (including deadlines in the Commencement
Date) with respect to commencement and continuation of construction shall
be subject to delays and extensions from time to time for Unavoidable Delay
(see Article 15). Developer shall not be deemed to be in default of this
Agreement to the extent construction of the Project, or a part thereof, is not
complete by reason of Unavoidable Delay.
2. Pursuit of Construction. After the Commencement Date of each Phase, Developer
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shall continue, pursue and prosecute the construction of such Phase of the Project
with due diligence to completion, and shall not at any time actually or effectively have
abandoned (or its Contractor having actually oreffectively abandoned) the Project
Site. For purposes of this subsection 7.02.2, "abandoned" means to have ceased
any construction work which effectively advances the construction of the Project
toward completion, including removing all or substantially all of the construction work
force from the Project site for a period of not less than sixty (60) days.
3. Maintenance of Construction Site. During the construction of the Project, Developer
shall, at its own expense, keep the Project and all lands owned by Developer within
the Project Site in reasonably good order and condition. .
4. Construction Comcletion Certificate.
a. For purposes of this Section 7.02, "completion, "complete," "substantially
complete" or "substantial completion" means, with respect to construction of
a Phase of the Project, the later of a certificate of occupancy for the shell of
any structures) (not including any tenant improvements) for that partof the
Project issued by the City or other appropriate governmental authority having
jurisdiction over the Project Site or that portion of the Project has been
deemed substantially completed by the Project Lender under the
Construction Financing therefor.
b. Upon the substantial completion of the construction of any Phase of the
Project in accordance with the provisions of the Plans and Specifications,
Developer shall prepare and execute a Construction Completion Certificate,
which shall then be delivered to the City. Upon receipt of the certificate, the
City shall promptly and diligently proceed to determine if construction of such
Phase of the Project has been completed substantially in accordance with
the Plans and Specifications and this Agreement. Upon making such a
determination, the City shall execute the certificate and return it to Developer.
The date of the Construction Com pletion Certificate shall be the date when all
parties shall have executed said certificate.
c. The Construction Completion Certificate shall constitute a conclusive
determination by the parties hereto of the satisfaction and termination of the
obligations of Developer hereunder to construct such Phase of the Project
described in the certificate; provided, however, that nothing in this Section
shall be a waiver of the rights, duties, obligations or responsibilities of the City
or any other governmental entity acting in its regulatory or governmental
capacity or an approval of said construction for purposes of the issuance of a
certificate of occupancy for that part of the Project.
d. If the City shall refuse or fail to execute any Construction Completion
Certificate after receipt of a request by Developer to do so, then the City
shall, within ten (10) days after its receipt of such request, provide
Developer with a written statement setting forth in reasonable detail the
reason(s) why the City has not executed the Construction Completion
Certificate and what must be done by Developer to satisfy such objections so
that the City would sign the certificate. Upon Developer satisfying the City's
objections, then Developer shall submit a new request to the City for
execution of the Construction Completion Certificate and that request shall
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be considered and acted upon in accordance with the procedures in this
Section for the original request.
e. If the City refuses to execute the certificate and Developer does not agree
with the objections set forth in the City's statement, then Developer may
invoke the arbitration procedures setforth in Article 14 hereof for the purpose
of determining if the prerequisites for execution by all parties of the
Construction Completion Certificate have been met, and if not, what actions
must be taken to satisfy such prerequisites.
f. The Construction Completion Certificate shall be in a form sufficient to be
recorded in the public records of Pinellas County, Florida. After execution -by
the City, it shall be promptly returned to Developer who shall record the
certificate in the public records of Pinellas County, Florida, and pay the cost
of such recording.
g. Developer agrees to complete the Hotel Phase of the Project on or before
two (2) years after the Commencement Date of the Hotel Phase. Developer
agrees to complete the Residential Tower Phase of the Project on or before
two (2) years after the Commencement Date of the Residential Tower
Phase. Developer agrees to complete the Residential/Retail Phase within
eighteen (18) months after the Commencement Date of the
Residential/Retail Phase. In the event Developer proceeds with construction
of its Residential Tower Phase with a building height greater than 100 feet
prior to completion of the Hotel Phase, Developer shall provide to the City of
Clearwater a letter of credit in the amount of One Million Dollars ($1,000,000)
that shall secure Developer's obligations under this Agreement as to
completion of the Hotel Phase and which letter of credit shall remain in full
force and effect until the Construction Completion Certificate for the Hotel
Phase is recorded as provided above. The letter of credit shall be in a form
reasonably acceptable to the City. In the event Developerdefaults as to its
obligations to commence and/or complete the Hotel Phase and such default
is not cured within any applicable grace or cure period, the City shall have
the right to draw on the letter of credit and retain the full proceeds as
liquidated damages for such default. In the event for any reason Developer
does not proceed with a building in the Residential Tower Phase that
exceeds 100 feet in height, this provision shall be null and void and if a letter
of credit has previously been delivered to the City, it shall be promptly
returned to Developer.
7.03. City Not in Privity. The City shall not be deemed to be in privity of contract with any
Contractor or provider of services with respect to the construction of any part of the Project
not constituting all or any part of public improvements.
7.04. Construction Sequencing and Staging Area. The Developer shall construct the Baymont
and Ambler Improvements in a manner and fashion which will minimize the inconvenience of
the construction on the property owners of Clearwater Beach and the residents of the City.
The City agrees to allow Developer to use portions of Baymont and Ambler Streets as
designated by the City for construction staging and Project office, during construction of the
Project, without charge to the Developer, provided that such staging area and Project office
does not unreasonably affect the maintenance of access provided fa in this Paragraph.
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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, asthe
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
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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 ofSection
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 ofthe 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, (Hi) 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 ofthe 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.
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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 irvolved.
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 ofthe 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 financial information and other documentation, including that pertaining to the
Project 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
5t. Petersburg, Florida, and the Developer will keep records concerning the Project
(such as construction contracts, financing documents and corporate documents) and
all contracts, licenses and similar rights relating thereto at an office 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 Project
as contemplated by this Agreement.
9. The Developer has the experience, expertise, and capability to develop, cause the
construction, and complete the Project and, oversee and manage the design,
planning, construction, canpletion and opening for business of the Project.
9.02. Covenants. The Developer covenants with the City that until the earlier of the Termination
Date or the Expiration Date:
1. The Developer shall timely perform or cause to be performed all of the obigations
contained herein which are the responsibility of the Developerto 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 tobe executed and to
continue to be in effectthose instruments, documents, certificates, permits, licenses
and approvals and shall cause to occur those events contemplated by this
Agreement that are applicable to, and thatare the responsibility of, the Developer.
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3. The Developer shall assist and cooperate with the City to accomplish the
development of the Project 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 develop, construct and complete the Project 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 develop, construct
and complete the Project as contemplaed 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. Other than sales and assignments contemplated by this Agreement, the Developer
shall not sell, lease, transferor otherwise dispose of all or substantially all its assets
without adequate consideration and will otherwise take no action which shall have
the effect, singularly or in the aggregate, of rendering the Developer unable to
continue to observe and perform the covenants, agreements, and conditions hereof
and the performance of all other obligations required by this Agreement.
8. Except for the removal of any structures, plants, items or other things from the
Project Site necessary for construction of the Projectto commence and continue, the
Developer shall not permit, commit, or suffer any waste or impairment of the Project
or the Project Site prior to the Completion Date.
9. Provided all conditions precedent thereto have been satisfied or waived as provided
herein, the Developer shall acquire the Controlled Property as provided in Article 5
hereof and shall pay the Purchase Price, as the case may be, when due and
payable as provided therein.
10. Provided all conditions precedent thereto have been satisfied or waived as provided
herein, the Developer shall design, construct and complete the Project such that it is
substantially complete as provided in this Agreement no later than the deadline for
such completion as provided in this Agreement.
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ARTICLE
10. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CllY.
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 onits 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 ofthe City enforceable against
the City in accordance with the terms thereof, except as such enforceability may be
limited by public policy or applicable bankruptcy, insolvency or similar laws from time
to time in effect which affect creditors' rights generally and subject to usual equitable
principles in the event that equitable remedies are involved.
10.02. Covenants. The City covenants with the Developer that until the earlier of the Termination
Date or the Expiration Date:
1. The City shall timely perform, or cause to be performed, all of the obligations
contained herein which are the responsibility of the City to perform.
2. During each year that this Agreement and the obligations of the City under this
Agreement shall be in effect, the City shall cause to be executed and to continue to
be in effect those instruments, documents, certificates, permits, licenses and
approvals, and shall cause to occur those events contemplated by this Agreement
that are applicable to and are the responsibility of the City.
3. The City shall assist and cooperate with the Developer to accomplish the
development of the Project in accordance with this Agreement and the Plans and
Specifications, will carry out its duties and responsibilities contemplated by this
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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. Except for the demolition of existing structures on the Project Site and the removal of
objects from the Project Site as contemplated by this Agreement, the City shall not
permit, commit, or suffer any waste or impairment to the Project Site, nor shall the
City request or recommend any rezoning of the Project Site, or any part thereof,
which will prevent or adversely affect the development of the Project.
5. . The City shall maintain its financial capability to carry out its responsibilities as
contemplated by this Agreement and shall notify the Developer of any event,
condition, occurrence, or change in its financial condition which adversely affects, or
with the passage of time is likely to adversely affect, the City's financial capability to
carry out its responsibilities contemplated hereby.
ARTICLE 11. CONDITIONS PRECEDENT.
11.01. The Developer Acquiring Project Site. Unless this Agreement has been terminated
pursuant to Article 12 hereof, the obligation of the Developer to acquire the Project Site is
subject to the fulfillment to the satisfaction of, or waiver in writing by, the Developer of each
of the following conditions precedent:
1. The Developer shall have received evidence satisfactory to the Developer that the
Project Site permits the uses contemplated in this Agreement.
2. The Plans and Specifications as are required for issuance of the Building Permit
required to Commence construction of the Project shall have been approved by the
City in accordance with applicable ordinances, land use regulations, building codes
and other regulations of the City.
3. The Developer shall have obtained commitments from the Project Construction
Lender as provided in Article 6 hereof.
4. The City shall have closed and vacated any streets, alleys or other public rights-of-
way as may be necessary for the construction and use of the Project Site according
to the Plan and Specifications, this Agreement and approved by resolution the
abandonment of all such rights-of-way in favor of the Developer.
5. All Permits necessary for construction of the Project to commence shall have been
issued and have become final and non-appealable.
11.02. Construction of Project. Subject to termination of this Agreement pursuant to Article 12,
the obligation of the Developer to commence construction of the Project on the
Commencement Date is subject to the fulfillment to the satisfaction of, or waiver in writing
by, the Developer of the following conditions:
1. The Plans and Specifications that are necessary to commence construction shall
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have been approved by the City, and the initial Building Permit for the
commencement of construction of that part of the Project and all other Permits
necessary for construction to commence have been issued.
2. The vacation of rights-of-way as provided in Section 5.03.1. hereof.
11.03. 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 pertaining to the entire Project
upon the occurrence of anyone or more of the following:
a. The Developer shall fail to perform or comply with any material provision of
this Agreement applicable to it within the time prescribed therefor, after
receipt of a notice from the City pursuant to Paragraph 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
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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 Agreementor 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 De\eloper.
. 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, financial commitments,
management agreements, and all Permits, and, at the direction of the City, the
defaulting the Developer shall vacate the parcel( s).
4. Notwithstanding any provision of this Section, a default by the Developer shall not
affect the title of any condominium unit or common area conveyed by the Developer
to an unrelated third party or to a condominium association which is not controlled by
. the Developer.
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,
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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 Subsection 2.a. 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 shallbe 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
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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 Prior to Commencement of Project.
1. The Developer and the City acknowledge and agree that as of the Effective Date
certain matters mutually agreed by the parties hereto to be essential to the
successful development of the Project have not been satisfied or are subject to
certain conditions, legal requirements or approvals beyond the control of any of the
parties hereto or which cannot be definitely resolved under this Agreement.
including, but not limited to, failure of a governmental authority to grant an approval
required for development of the Project or insurable title to the Project Site has not
been obtained. In recognition of these events or conditions, the parties hereto
mutually agree that, provided the appropriate or responsible party therefor diligently
and in good faith seeks to the fullest extent of its capabilities to cause such event or
condition to occur or be satisfied, the failure of the events or conditions listed in
subsection 2. below to occur or be satisfied shall not constitute an event of default by
any party under this Article 12. but may, upon the election of any party hereto. be the
basis for a termination of this Agreement in accordance wth this Section.
2. In addition to any other rights of termination provided elsewhere in this Agreement,
prior to commencement of the Project. this Agreement may be terminated as
provided in Subsection 3. of this section by the City or the Developer after the
occurrence of any of the following events or conditions (except for Subsection b. , in
which event only the Developer may terminate this Agreement pursuant to this
subsection 2.):
a. The appropriate governmental authority (including the City in exercise of its
governmental and regulatory authority and responsibility), upon petition by
the Developer denies or fails to: issue the necessary order or other action
necessary, vacate right-of-way as described in Section 5.03. issue the
Permits. issue the Building Permits, or approve any other land use necessary
to commence construction of the Project on the Project Site. provided the
Developer has proceeded diligently. expeditiously and in good faith to obtain
such approval, permits or other necessary acti01s;
b. A previously unknown site condition is subsequently discovered and that
condition prevents successful development of the Project, or part of the
Project on the Project Site. or part of the Project Site (in which case only the
Developer at his option can terminate the Project as not feasible).
3. Upon the occurrence of an event described in subsection 2. or in the event that the
Developer or the City, after diligently and in good faith to the fullest extent its
capabilities, is unable to cause a condition precedent to its respective obligations to
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occur or be satisfied, then the Developer or the City may elect to terminate this
Agreement by giving a notice to the other party hereto within thirty (30) days of the
occurrence of such event or the detennination of inability to cause a condition
precedent to occur or be satisfied, stating its election to terminate this Agreement as
a result thereof, in which case this Agreement shall then terminate.
4. In the event of a termination pursuant to this Section 12.05, neither the Developer
nor the City shall be obligated or liable one to the other in any way, financially or
otherwise, for any claim or matter arising from or as a result of this Agreement or any
actions taken by the Developer and the City, or any of them, hereunder or
contemplated hereby, and each party shall be responsible for its own costs,
however, the provisions of Sections 9.01 and 10.01 shall apply and shall survive
termination of this Agreement, the provisions of this Subsection 12.05.4 to the
contrary notwithstanding.
.12.06. Termination Certificate.
1. In the event of a tennination 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 Project Site is no longer subject to
any restrictions, limitations or enOJmbrances 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, Fbrida.
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 Developer, the Project (or any part thereof), the Project Site, furniture,
fixtures, equipment or other 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 acquisition or
preparation of the Project Site, the construction, completion, operation or use of the
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Project, the Project Site, or any part thereof, in any material respect, and neither the
Project or Project Site, nor any part of the Project or the Project Site, would be
subject to any risk of being involuntarily sold, forfeited or lost or the acquisition of the
Project Site or the construction, equipping, or completion of the Project or any part
thereof be delayed or prohibited;
3. Such proceeding will not subject any other party to crimina/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 Project and the Project Site, 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. Appointmentof Arbitrators.
1.
2.
a.
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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 following
the expiration of the time period for such dispute resolution process or upon
occurrence of the event permitting arbitration to be invoked, give written
notice to that effect to the other parties, and shall in such notice appoint a
disinterested person who is on the list of qualified arbitrators maintained by
the American Arbitration Association or a disinterested person not on such
list to whom an objection is not made by any other party hereto within five (5)
days of receipt of the notice of such appointment as the arbitrator or, if more
than one (1) arbitrator is to be appointed, as one of the arbitrators.
b. Within ten (10) days after receipt of the notice described in paragraph (1), the
other parties shall by written notice to the original party acknowledge that
arbitration has been invoked as permitted by this Agreement, and shall either
accept and approve the appointment of such individual set forth in the
original notice as a sole arbitrator or shall appoint one (1) disinterested
person per party of recognized competence in such field as an arbitrator.
a.
If two (2) arbitrators are appointed pursuant to subsection a. above, the
arbitrators thus appointed shall appoint a third disinterested person who is on
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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 matt6".
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 tenns, 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.
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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.
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 thereotto 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.
a.
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 partiesmutually
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
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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 govemmental 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 Subsection 3. and in
Subsection 4. as the II 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 tiled 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
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under this Agreement affected by such occurrence.
ARTICLE 16. RESTRICTIONS ON USE.
16.01. Project. Prior to the earlier of the Term ination Date or the Expiration Date, no use of the
Project, other than as described in Section 2.03, shall be permitted, other than the operation
of improvements existing on the Effective Date until those improvements are demolished,
unless and until the Developer or the person, if other than the Developer, intending to so use
the Project or Project Site, shall file with the City a request for a release from the restriction
imposed by this Section. The Governing Body of the City shall promptly consider such..
request and either deny the request, approve the request as filed, or approve the request
subject to such terms, conditions and limitations as the City may reasonably require. Unless
specifically requested and approved, a release of the restriction imposed by this Section
shall not release the Developer from any obligations or restrictions imposed by this
Agreement or any agreement, instrument or docurrent contemplated hereby.
ARTICLE 17. FIRE OR OTHER CASUALTY; CONDEMNATION.
17.01. Loss or Damage to Project.
1. Until the Project Completion Date, and without regard to the extent or availability of
any insurance proceeds, the Developer covenants and agrees to diligently
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 Project on a Parcel which it
owns to substantially the same size, floor area, cubic content and general
appearance 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 Project, 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.
17.02. Partial Loss or Damage to Project. Until the Project Completion Date, any loss or damage
by fire or other casua'Jty or exercise of eminent domain to the Project or Project Site, or any
portion thereof, which does not render the Project or Project Site 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. Project Insurance Proceeds.
1. Whenever the Project, 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
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insurers or others based upon such damage or destruction.
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 Project to the extent necessary to repair or reconstruct
the Project.
17.04. Notice of Loss or Damage to Project. The Developer shall promptly give the City written
notice of any significant damage or destruction to the Project 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 Project, and the proposed schedule, if any, for
repair or reconstruction of the Project.
17.05. Condemnation of Project or Project Site; Application of Proceeds. In the event that
part, but not all, of the Project or Project Site, or both, 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 Project, provided the Project 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. 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 consent of the
City, provided that such party (hereirefter 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.
b. 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.
c. 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
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." . .
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 less than thirty (30) days prior to such assignment being effective
and the assignee shall be bound by the terms of this Agreement to the same
extent as would the Developer in the absence of such assignment.
d. No assignee, purchaser, sublessee or acquire of all or any part of the
Developer's rights and obligations with respect to anyone 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.
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:
CBR Development I, LLC and
CBR Development II, LLC
2201 - 4th Street North, Suite 200
S1. Petersburg, FL 33704
Attn: J. Michael Cheezem
To the City:
City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
with copies to:
with copies to:
PamAkin, Esquire
Clearwater City Attorney
112 S. Osceola Avenue
Clearwater, FL 33756
E.D. (Ed) Armstrong, 1/1
P.O. Box 1368
Clearwater, FL 33757
and
Greene & Schermer
1301 - 6th Avenue West
Suite 400
Bradenton, FL 34205
Attn: Robert F. Greene, Esquire
2. Notices given by courier service or by hand delivery shall be effective upon delivery
and notices given by mail shall be effective upon receipt. Refusal by any person to
accept delivery of any notice delivered to the office at the address indicated above
(or as it may be changed) shall be deemed to have been an effective delivery as
provided in this Section 18.03. The addresses to which notices are to be sent may
be changed from time to time by written notice delivered to the other parties and
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. .
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 andto 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 inor 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 officer, employee, agent or member thereof available for
service of process in 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 member 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 Project, 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
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~
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 Saturdayor 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 Project.
18.13. Recording of Development Agreement. Pursuant to ~163.3239, Florida Statutes (2004),
the City authorizes and hereby directs the City Clerk to record this Agreement in the public
records of Pinellas County, Florida, within fourteen (14) days after City Council approval of
this Agreement. The Developer shall pay the cost of such recording. A copy of the recorded
development agreement shall be submitted to the state land planning agency within fourteen
(14) days after the agreement is recorded
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 or the City, a pledge of the
ad valorem taxing power of the City or the City or a general obligation or indebtedness of the
City or 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, the City or
any other governmental entity or taxation in any form on any real or personal property to pay
the City's or the City's obligations or undertakings hereunder.
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18.16. Other Requirements of State Law. Nothing in this Agreement shall be deemed to relieve
either party from full compliance with any provision of State law which is applicable to any of
the obligations or undertakings provided for in this Agreement. In the event that this
Agreement omits an obligation to comply with any provision of State law in regard to any of
the obligations or undertakings provided for in this Agreement, it is the intention of the
parties that such applicable State law shall be deemed incorporated into this Agreement and
made a part thereof. In the event that there is any conflict between the provisions of this
Agreement and applicable State law, it is the intention of the parties that the Agreement shall
be construed to incorporate such provisions of State law and that such provisions shall
control.
18.17 . Technical Amendments; Survey Corrections. In the event that due to minor inaccuracies
contained herein or any Exhibit attached hereto or any other agreement contemplated
hereby, or due to changes resulting from technical matters arising during the term of this
Agreement, the parties agree that amendments to this Agreement required due to such
inaccuracies, unforeseen events or circumstances which do not change the substance of
this Agreement may be made and incorporated herein. The City Manager is authorized to
approve such technical amendments on behalf of the City, respectively, and is authorized to
execute any required instruments, to make and incorporate such amendment to this
Agreement or any Exhibit attached hereto or any other agreement contemplated hereby.
18.18. Term; Expiration; Certificate.
1. If not earlier terminated as provided in Section 12.05, this Agreement shall expire
and no longer be of any force and effect on the tenth anniversary of the Effective
Date.
2. Upon completion of the term of this Agreement, all parties hereto shall execute the
Agreement Expiration Certificate. The Agreement Expiration Certificate shall
constitute (and it shall be so provided in the certificate) a conclusive determination of
satisfactory completion of all obligations hereunder and the expiration of this
Agreement.
3. 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.
4. 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
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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
bylaw.
18.21. Effective Date. As provided by ~163.3239, Florida Statutes (2004), this agreement will
become effective after being recorded in the public records in the county and 30 days after
having been received by the state land planning agency.
BALANCE OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES FOLLOW
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IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals
affixed as 01 this ~da~ .01 if' · '1 ' 2005.
THE CITY OF CLEARWATER, FLORIDA
By:;1~JZ ~.~.
. ayor
Attest:
By:
. .
C. ";"Ib'~ ~4~~..., .,;; .,. '/
l '''-'f,...~rt.l''''''"' ,""';' .," j. .,',. J' '"
'~"<:'~;~"~"~;;f~'(~:;, \;; 1;,~7v< ;~?;::" ...., .',
A provecf~l(Uorhiarnt.~olJ1Jc1,nes~:::,.;:
'Ft:,,, ~:<! ?:" ~ <:;,. . ,.:,'.:.:.,~," ~J.':.:"
, r.,.' . .....,~ "'.~ulre
- - ~.,. .
Th~regOing ins~cknOWled ed be~or~me this O?t6!ctay of <;:l:;Ka~ '
2005, by ~. V and LP . , M~~nd Ci Clerk.
respectively, for the City of Clearwater, Florida, behalf of th ity, who is ~ersonally known to
me or 0 has produced a Florida driver's license or 0 . as
identification.
~
NOTA . BLle ~ f / ^ .
Printed Name: 17 /I ~ ~ K... U /,4 lVI/
Commission No. D 70194
My Commission expires: //- 3- Plot> 8
_' Mary K. Diana
i. p: CommiIIion,. 00370194
Expi'eI November 8, 2008
, .. BoniIII TIlIJ ".InMnnoI... 8OlJ4II.l'011.
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CBR DEVELOPMENT I, LLC,
a Florida limited liability company
By: CBR Communities I, Ltd.,
a Florida limited partnership
Managing Member
By: JMC Communities of Clearwater V, Inc.
a Florida ration eneral Partner
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this 625day of ~
. 2005, J. Michael Cheezem, as CEO of JMC Communities of Clearwater V, nc., a Florida
corporation, the General Partner of CBR Communities I, Ltd., a Florida limited partnership, the /'
Managing Member of CBR Development I, LLC, a Florida limited liability company, who is V"
personally known to me or 0 has produced a Florida driver's license or 0
as identification.
. ~"''''''''' G. SPRING COPELAND
f.?A~.. MY COMMISSION' DO 144839
~.~~j EXPIRES: September 15. 2006
~iif.~if,~ Bonded Thru NdIfy NlIic ~rs
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CBR DEVELOPMENT II, LLC,
a Florida limited liability company
By: CBR Communities II, Ltd.,
a Florida limited partnership
Managing Member
By: JMC Communities of Clearwater VI, Inc.
a Florida c ration, General Partner
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this 02 O~ay of ~
2005, J. Michael Cheezem, as CEO of JMC Communities of Clearwater VI, c., a Flori a
corporation, the General Partner of CBRCommunities II, Ltd., a Florida limited partnership, the /'
Managing Member of CBR Development II, LLC, a Florida limited liability company, who is W/"
personally known to me or 0 has produced a Florida driver's license or 0
as identification.
NOTARY P BL
Printed Name:
Commission No.
My Commission expires:
",!~..,
~~i~~ G; SPRING COPelAND
:~ MY COMMISSION' DO 144839
i EXPIRES: September 15, 2006
SclndId Thnl NoIIty PlilIc lkIdonwit.rs
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EXHIBIT A
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EXHIBIT A
Legal Description of Controlled Property
SOUTH BLOCK
Lots 1 - 13 and 49 - 56, Clearwater Beach Park, as per plat thereof recorded in Plat Book.1 0, Page .
42, of the Public Records of Pinellas County, Florida.
Lots 43 through 48, Lots 65 through 71, and the South 14.75 feet of Lot 64, CLEARWATER BEACH
PARK, as recorded in Plat Book 10, Page 42, of the Public Records of PinellasCounty, Florida.
NORTH BLOCK
PARCEL 1:
THAT PART OF TRACT A OF A RE-SUBDIVISION OF BLOCK 10 AND 11, AND LOTS 2 TO 15,
INCLUSIVE, BLOCK 9, OF THE REVISED MAP OF CLEARWATER BEACH, AS RECORDED IN
PLAT BOOK 19, PAGE 96, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA,
DESCRIBED AS FOLLOWS:
BEGIN AT THE SOUTHEAST CORNER OF THE SAID TRACT A AS SHOWN AS 3.68 ACRES, TO
THE POINT OF BEGINNING, BEING A POINT AT THE INTERSECTION OF THE NORTH LINE OF
BAYMONT STREET, AS SAID BAYMONT STREET IS SHOWN ON SAID RE-SUBDIVISION OF
BLOCKS 10 AND 11 AND LOTS 2 TO 15, INCLUSIVE, BLOCK 9 OF THE REVISED MAP OF
CLEARWATER BEACH, WITH THE WESTERLY LINE OF MANDALA Y ROAD, AND RUN THESE
N200 45'00" E, 182.23 FEET; THENCE N 01044'00" E, 110.51 FEET TO THE CENTERLINE OF
AMBLER STREET, SAID AMBLER STREET IS SHOWN AND DEDICATED AS A PUBLIC STREET
. IN THE REVISED MAP OF CLEARWATER BEACH, AS RECORDED IN PLAT BOOK 11, PAGE 5,
OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA; THENCE WEST ALONG THE
CENTERLINE OF SAID AMBLER STREET 420.00 FEET, MORE OR LESS, TO THE WATER OF
THE GULF OF MEXICO; THENCE IN A SOUTHERLY DIRECTION ON A MEANDERING LINE
ALONG THE WATERS OF THE GULF OF MEXICO, 321.00 FEET, MORE OR LESS, TO THE
CENTERLINE OF SAID BA YMONT STREET; THENCE EAST 385.00 FEET, MORE OR LESS,
. ALONG SAID CENTERLINE OF BA YMONT STREET TO A POINT 40.00 FEET SOUTH OF THE
POINT OF BEGINNING; THENCE NORTH 40.00 FEET TO THE POINT OF BEGINNING.
PARCEL 2:
THE NORTH 20.00 FEET OF VACATED AMBLER STREET LYING WEST OF THE EAST LINE OF
. LOT 9, PROJECTED SOUTH AS SHOWN ON THE PLAT OF MILLER'S REPLAT, AS RECORDED
IN PLAT BOOK 26, PAGE 17, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA.
PARCEL 3:
LOT 1 AND 10 AND THE SOUTH 80.00 FEET OF LOT 9 OF MILLER'S REPLA T, AS RECORDED
IN PLAT BOOK 26, PAGE 17, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA.
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EXHIBIT B
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EXHIBIT B
Project Description
Developer proposes to redevelop the Project Site with a resort development to include related
amenities, pedestrian walkways, streets, parking and infrastructure improvements. The Project shall
include a nine-story resort hotel with not less than 240 rooms and not more than 260 rooms (the
Hotel Phase); a fifteen-story condominium (the Residential Tower Phase) and a four-story
condominium and not more than 11,000 square feet of on-grade retail (the Residential/Retail
Phase ).
The Hotel Phase will include approximately 50 for sale condominium-hotel suites located on the top
two floors, which are included in the overall hotel room count as described above. The Hotel Phase
will also include a minimum of 10,000 sf of meeting space, a minimum of 11,000 sf for Spa, Health
Club, and Beach Club, a ful~service restaurant, lounge, two swimming pools, a kids wading pool,
pool grill, and other amenities associated with a beachfront resort. The building height forthe Hotel
Phase will not exceed 100 feet. .
The Residential Tower Phase includes one fifteen-story building with a height not to exceed 150
feet.
The Residential/Retail Phase includes one four-story building with a height not to exceed.50 feet.
The retail will be located on the ground level of the four-story building. The ResidentiaVRetail Phase
will not exceed 11,000 sf of retail space, not more than 3,000 sf of which may be restaurant.
The Residential Tower Phase and ResidentiaVRetail Phase shall collectively have no more than 120
dwelling units.
As provided for in this Agreement. Developer, and/or its affiliates, will carry out the redevelopment of
the Project Site by purchasing all of the land within the Project Site, preparing project plans and
specifications, obtaining approvals by governmental authorities necessary for development of the
Project, constructing various private improvements on the Project Site, and developing the Project
as a unified and integrated project. .
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EXHIBIT B-1
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EXHIBIT B-1
MINIMUM QUALITY STANDARDS
The Development Agreement ("Agreement") between the City of Clearwater, Florida (the "City") and
CBR Development I, LLC ("Developer") provides for the allocation of one hundred and forty-one
(141) resort hotel units from the Beach by Design density pool ("Density pool") to the site on which
the Developer anticipates building the project described in the Agreement (the "Project Site"), which
project is to contain, among other things, a minimum of 240 hotel units within a quality resort hotel
(the "Hotel"). Beach by Design establishes physical, functional and operational requirements for a
proposed development to be eligible for an allocation of resort units from the Density pool. The
allocation of the resort hotel units to the Project Site represents a significant economic incentive for
the development of the Hotel.
The purpose of this Exhibit is to establish:
1) minimum quality standards forthe proposed Hotel;
2) a process for assessing compliance with the minimum quality standards; and
3) an enforcement mechanism in the event that the Developer shall fail to comply with the
minimum quality standards.
MINIMUM QUALITY STANDARDS
The City and the Developer agree that there are two (2) alternative ways in which the Developer
may satisfy the quality requirements of Beach by Design (the "Minimum Quality Standards"):
1) . Membership in (a) the AAA and obtaining and maintaining a minimum quality rating of at
least four (4) diamonds; or (b) Mobile Travel Guide ("MTG") and obtaining and
maintaining a minimum quality rating of at least four (4) stars; or (c) such other travel
marketing and rating service as the City reasonably approves ("Other Rating Service")
and obtaining a quality rating comparable to the AAA and MTG ratings described in (a)
and (b) of this subparagraph;
-or-
2) Membership in (a) the AAA and obtaining and maintaining a minimum quality rating of at
least three (3) diamonds; or (b) membership in MTG and obtaining and maintaining a
minimum quality rating of at least three (3) stars, and in addition to (a) and (b), inclusion
in the Hotel upgraded improvements and facilities as described hereinafter.
The City agrees that the Developer would satisfy the upgraded improvements and facilities
requirement by providing twenty-five percent (25%) of the total number of AAA four (4) diamond
quality criteria for: i) exterior, ii) public areas; iii) guestrooms; iv) guestroom amenities; and v)
bathroom as described in AAA, Lodging Requirements & Diamond Rating Guidelines (the most
current edition as of the date of issuance of the building permit for the Hotel).
Alternatively, the City agrees that the Developer may satisfy the upgraded improvements and
facilities requirement by substantial compliance with attached schedule of "Upgrade Hotel Criteria".
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COMPLIANCE ASSESSMENT
Initial rating period
As soon as is reasonably possible after a final Certificate of Occupancy for the Hotel is
issued by the City ("CO"), the Developer shall apply for membership and inspection by AAA, MTG or
Other Rating Service (the "Hotel Rating Service"), such that an inspection by the Hotel Rating
Service would be reasonably expected to occur within twelve (12) months following the issuance of
the CO ("Initial Inspection Period"). Upon receipt of the report issued by the Hotel Rating Service
("Rating Service Quality Report"), the Developer shall immediately deliver a copy of the rating report
to the City.
In the event that the Hotel Rating Service does not or is unable to inspect the Hotel within the
Initial Inspection Period, Developer shall use reasonable diligence to obtain an independent quality
assessment of the Hotel from a qualified hotel/resort industry expert ("Independent Quality
Assessment") within ninety (90) days after the issuance of the CO. In the event the Developer fails
to deliver a qualified Rating Service Quality Report or a qualified Independent Quality Assessment
to the City within ninety (90) days after the first anniversary of the CO, the City may at the
Developer's expense, obtain a written opinion of an independent expert in the hotel/resort industry
with regard to the compliance of the Hotel with the Minimum Quality Standards established in this
Exhibit.
Maintenance and Monitoring of Compliance with Minimum Quality Standards:
1. The Developer shall maintain compliance with the Minimum Quality Standards for a period of
ten (10) years commencing upon issuance of the CO.
2. In the eventthat the initial rating of the Hotel equals four (4) diamonds, four (4) stars or the
equivalent with an Other Rating Service or better, maintenance of such rating shall constitute full
compliance with the Minimum Quality Standards.
3. In the event that the initial rating of the Hotel equals three (3) diamonds, three (3) stars or the
equivalent with an Other Rating Service, and the Developer has included in the Hotel the required
upgraded improvements and facilities as described above, the maintenance of such rating shall
constitute compliance with the Minimum Quality Standards. On the fifth anniversary of the issuance
of the CO, if the most recent Rating Service Quality Service Quality Report does not address
compliance with the upgraded improvements and facilities requirement establshed in this Exhibit
(the "Upgrade Requirement"), the Developer shall obtain a written opinion from a qualified
hotel/resort industry expert that the Hotel continues to meet the Upgrade Requirement. If the
Developer fails to deliver a qualified opinion of compliance with the Upgrade Requirement, the City
may at the Developer's cost, obtain a written opinion of an independent expert in the hotel/resort
industry with regard to the compliance of the Hotel with the Upgrade Requirement.
FAILURE TO COMPLY
In the event that a Rating Service Quality Report, an Independent Quality Assessment or the
opinion of an independent expert in hotellresort industry reveals that the Hotel does not comply or
no longer complies with the Minimum Quality Standards established in this Exhibit or the Developer
fails to provide the City with a Rating Service Quality Report or an Independent Quality Assessment
or expert opinion, or the Hotel Rating Service that previously rating the Hotel has given notice
stating that such service has downgraded the Hotel's rated to a lower rating level ( " Rating
Downgrade Notice"), the City shall notify Developer of default in a writing which details identifying
Development Agreement
Page 48
ADOPTED
F:'jmolhuIC8I\CIly ~ 1(1. 17 FINALdoc
the nature of the default(s) ("City Quality Default Notice").
. If the default(s) described in the City Quality Default Notice are based upon a Rating
Downgrade Notice, Developer shall have that period of time given to Developer by the downgrading
hotel rating service to dispute or effectuate any cure required to restore the Hotelo the Minimum
Quality Standard and to present to the City reasonable evidence that Developer has either prevailed
in its dispute of the default(s) or has effectuated a cure of the conditions upon which the default is
based.
If the City Quality Default Notice is based on any basis provided for in this Exhibit other than
a Rating Downgrade Notice, Developer shall have ten (10) days to notify the City as to whether the
Developer intends to dispute the Default Notice. If the Developer does not notify the City within ten
(10) days of its intent to dispute the Default Notice, the Developer shall have thirty (30) days to cure
the default, or in the event that this is not reasOlable possible to cure the default within thirty (30)
days, the Developer shall submit a sworn statement describing the steps necessary to cure the
default and to the time period necessary to cure the default and the Developer shall cure the default
within the stated period. In the event that the Developer disputes the Default Notice, the dispute
shall be resolved through expedited arbitration pursuant to the Agreement and in the event that the
Developer's dispute is resolved in the favor of the City, the Developer shall then cure the default
within thirty (30) days after resolution of the dispute or such longer period as may reasonably be
required as provided above.
In the event that a City Quality Default Notice was based on a failure to maintain compliance
with the Upgrade Requirement, the Developer shall obtain a written opinion from a qualified
hotellresort industry expert that the Hotel continued to meet the Upgrade Requirement every two (2)
years after the default is cured until the expiration or temination date of the Agreement.
Notwithstanding anything contained in this Agreement to the contrary, it shall not be
considered a default under this Agreement if the Developer must make modifications or take actions
to restore the Hotel to the Minimum Quality Standard where such modifications or action to be taken
requires the alteration of structural or architectural design elements of the Project which were
approved by the City in connection with the construction of the Project or where the cost of such
modifications or actions, including any debt service incurred by the Developer in connection
therewith, cannot be recovered over the useful life of the item to be modified, as reasonably
determined by the City and the Developer.
REMEDIES UPON EVENT OF DEFAULT
Upon the occurrence of an Event of Default which is not cured within the applicable grace or
cure period, Developer shall be subject to a daily fine equal to Two Thousand and Five Hundred
Dollars ($2,500.00) payable to the City for each day that the defaults enumerated within the City
Quality Default Notice at issue remain uncured provided, however, that the maximum fine shall not
exceed One Million Dollars ($1,000,000).
In the event that an Event of Default occurs, the accumulated fines shall be a lien against the
Hotel component of the Developer's Property, which may, at the City's sole discretion, be enforced
through a foreclosure proceeding.
Development Agreement
Page 49
ADOPTED
~~~Agt 17 FINAL-doc
UPGRADE HOTEL CRITERIA SCHEDULE
I. EXTERIOR
Curb Appeal: The combination of all exterior elements provides an impressive well-integrated and
excellent level of curb appeal. Excellent variety of landscaping professionally planned and
manicured. Impressive architectural features well-integrated into the surrounding area. Exterior
lighting to enhance landscaping and building architectural features.
Parking: Lighting fixtures reflect characteristics of the design of the property, physical evidence of
added security exists; excellent overall illumination. .
If. PUBLIC AREAS
Furnishings and Decor. Upscale, well-appointed, and in the theme of the property; high degree of
comfort, featuring professionally fitted coverings, and abundant variety of live plants or unique dried
floral arrangements.
Floor Coverings: Excellent quality carpet, wood, marble, or granite floors with unique area rugs.
Illumination: Light fixtures are well-appointed and of an upscale design that complements the
overall theme of the property; mult~placement provides overall excellent illumination.
Signage: Design is well-defined in harmony with the theme of the property.
Lobby/Registration Area: Spacious registration area; upgraded luggage carts; recognizable
guest-service and bellstand.
Miscellaneous: Multiple recessed phones with notepads and pens, located away from traffic areas.
. Pressing is available at specific times. .
Restaurant and Dining Facilities: Upscale, full-service restaurant; separate lounge or bar area.
Recreational Facilities: Swimming pool area is well-appointed with upscale design elements and
an excellent quality and variety of pool furniture and hot tub. Food and beverage is available
poolside. On-site exercise facility with state of the art equipment; lockers and dressing area
provided.
Meeting Rooms: Variety of well-appointed meeting rooms with upscale design elements.
Audiovisual equipment available.
Restrooms: Upscale facilities appropriate for the number of meeting rooms.
Additional Recreational Facilities: Excellent variety of additional offsite recreational activities is
available on site or arrangements are made for o~site services.
Sundries and Other Shops: Upscale gift shop.
Development Agreement
Page 50
ADOPTED
F:'jrn<\IlIneI\C DovolapmonI AgI 17 FINAl-doc
III. GUESTROOMS
Free Floor Space: Well-proportioned rooms with comfortable seating area with obvious degree of
spaciousness allowing increased ease of movemert for guests.
Floor Coverings: Excellent quality carpet, wood, marble, granite or other high-end stone floors.
Clothes Hanging Space: Fully enclosed hanging space with at least eight open-hook wood
hangers.
Clothes Storage Space: Sufficient space for two pieces of luggage; upgraded racks or benches.
Furniture: Excellent quality furnishings,. veneer finish with solid wood insets.
Heating/Air Conditioning: Central system with room thermostat control.
Illumination: Excellent overall illumination prOlided; freestanding fixtures in appropriate places.
Television Placement: Television located in closed armoire or.f1at screen monitor.
Balconies: Over 75% of rooms with balcony.
IV. GUESTROOM AMENITIES
Multiple or cordless telephones. High-speed Internet access. Easily accessible data ports. Desk.
Enhanced guest.service directory in folder. Upgraded stationary. Framed or beveled full-length
mirror. Full-size iron and ironing board. Min..Bar or refrigerator. DVD players or premium movie
channels, oversized television with remote control. Clock radio.
V. GUEST BATHROOMS
Countertops: Excellent quality utilizing granite, corian or marble with ample surface area.
Wall and Floor Coverings: Excellent quality, including ceramic tile, marba or granite flooring.
Free Floor Space: Excellent size bathrooms affording guests increased ease of movement and
comfort.
Amenities: Excellent quality plush towels, oversized. Facial tissues of excellent quality in
decorative container. Freestanding hair dryer. Bathroom area rug. Make-up mirror.
VII. SERVICE
Room service available 16 hours per day. Valet parking is available. Baggage assistance is
automatic. Concierge service available. Morning newspaper delivered to room door. All associates
are appropriately attired with fine uniforms and nameplates. Same day cleaning and pressing
available 5 days a week.
Development Agreement
Page 51
ADOPTED
F:'jrnclIutleo\C ~ AQt 17 F1NALdoc
EXHIBIT B-2
Development Agreement
Page 52
ADOPTED
F~~JvrI.'7FINAL.dac
Best Copy
Available.
bon
.t \5J\Pro.Do1o\D"90\LS\5J_1S7-Z50-LSZ-dw9 - Sop lB. 2004. J: J!lpm - mboacll
lHIS .IS .HQI A SURVEY
u~ERE MAY BE ADDITIONAL RrsTRICTlONS AFFECTING THIS PROPERTY
~A Y ElE FOUND IN THE PU8LIC RECORDS OF' THIS COUNTY.
HIS LEGAL DESCRIPTION AND SKETCH WAS PREPARED WITHOUT THE
F A TITLE POLICY.
~EARINGS. ARE 8ASED UPON. SEE SKETCH AND LEGAL DESCRIPTION
THAT
8ENEf'lT
LEGAl. DESCRIPTION,
A ,.r..' .t I..~ ~.ift' . ,.rt,.. .f Slctll.1 ~ ... 8. T....~J, II S.yt~. Alft'. .5 E..f. PI...,.. eIMe'"
Flarl"a. 1111.., ,..,. ,""I.f.,I, .....'....41 I' ..,1...:
COMMENCE .1 Ih. S.ul~...1 c.,.., ., T,..I A. 'A RE-SUI Of' BLOCKS 10-11 AND LOTS Z TO 15 INCL. BLOCK' Of' THE
REVISED MAl' Of' CLEARWAnR lEACH'. .. ,....~.~ .. 1'1.1 I..k It. ,.,. '15 .t I~. Pukl'. R...,~. ., 1'...11..
c...". FI."da; Ih... NZI'~T'34'[. ,'u, lho h.1 II.. .1 ..id Tro.1 A. ._ hi.. Ih ...1 RI,U-.,-..,
II..., ....d.I.' AU.u,. ....'~I.. to lI'd"A RE-SUI Of' BLOCKS 10-11 NG LOTS 2 TO" INCL. 81.OCK' Of' THE
REViSED..... Of' CLEARWATER lEACH'. 'hi., Ih ."" ., h., i.,. 10, Ihi. dOl..i,II..) 10, 18Z.33 ...1; Ih...
cul,.u. .Iu, ..I~ Eo., II.. ., T,..I A. ...... hi., .... W..I Ri,hl-."." Ii.. ., Mo.~.I., A......
NDZ"41'34'E. to, 110.50 ,..1 to Ih. ,.,.1., I.h,...tlu .II~ Ih S.ul~ RI.U-.I-.., II..., "lor 51'11"
....,~I., to 'MILlER'S REPLAY'. ., ....'d.d I. PI.I lIo.k ZI. ,.,. IT., I". 1'..,10 Re..,~. ., ,"'lOll.. C.u."..
Flart..o: th"uI ""OC"'''. .,.". '.'41 I..... RI,hl-.t-WI, lin. .t ......, Str..t. t., 110.00 f..t t. 'h. ,.f.'
If Int.,..ctllll wi ,.. .h. S...IIII.,., I.t,.,"n .t ,Ia. [.., Iln. ., Lit t. ..111 -MILLER', REPLAT-: th..cI
NOZ.41'34-E. ...". ..,. S..-1".rl, 1.'0"".. .1 'ho E.., Ii". .f Lit ,. .... ..1" E..t li"..r L.t s.
"Ilp..thel,. f.r 100.05 ...t I. ,... ,.iftt .t l..'.,.oe'i." wi'h .a.. Ne,th 11"..f .h. S..'h 10.00 ,.,_. It ..,d
L.t ,; ,...... N89"05''''.. ..... ..i~ Nlllh 1IA1 .r t'" S.ol~ 10.00 '..1 ., L.I ,. .., 50.00 ,..I .. ,... ,.1.1
.. In'.'.lcltl,. wl.h 'hI W.., "n. .r ..111II l.. 9: thence NQ2.4.'34-E. ...", ..,11 W..t II.. .f L..t ,. .., 6.9&
t..t .. t.. Ne,'''.... .."tlr .t ..ill l.' I: '''.nea NI~O&"'-.. el..., ,.. Ne,'h I'". .f LIt '0. ..... -"'lLER'S
PlULAT'. I~. N.,'h II.. ., L., I. IIld 'MIU,E:R'S Rfl'LAT". ..~ Ih W....", ..tu.i.. ., lIid N.,n "". ., L.t
I. ,..,..11..1,. 10' 3".~1. I. THE '"OINT Of' BEGINNING. Ih.... ...Ii... .1.., 1114.....'.' ......1...1 III~
No"~ 11n. .f L.' I. SI'"05',,'E. 10, 11Z.05 h.1 I'" ,.i.1 ., lal.....II.. .Ilh .1...11..0.62 ,..,. H.,n
_'ill. V..licol Oot_., INI 'HAIIO l!tlll. ..... hi., I'" ,.i.I.' ....,...11.. .1111 ,,,. II... HI,~ ..10,
Lift. .t 'hi G.lt .t Melle. .. ,.e.,d." with tit. O.'.r...... .f Eft."''''''''''.' "....tl... ..... HI,h W.t., S.,..,
III. .....If 342': I~..co t... ,.11..1.. .IAI (" ....... .1.., ..I~ .,.~.t1.. 0.&2 ...,. N"t.. _"co.
Vorti..1 D,"n.1 l!tea 'HAYD "II). ...... hi.. cold Mo.. HI,h ..,.. Li.. ., 'h Gull ., Mo.i..; III lho...
504""'05'.. ,., 40." ,..,: (21 t~.... 505"45'50'.. 10, St.14 'II': (31 Ih... 5O'.5Z'4"W. f" St.04 h.l:
141 I..... 50593"4I'W. h, 4'.'79 I..'; 151 Ih.... 507"36'51'.. 10, 4T.l!1 '..1; III Ih..co 106.11'33'.. h,
U.,. ,..t; e71 ....... 509"02'38'W. h, 51.54 h.l: 18) I~..co SO.$"53'20'.. 10, 49.11 h.l: '" ,~....
sorZ3'5I'.. lo, 42.11 ,..t II ,.. ,.1.1 ., i.h,...II.. .II~ th ...18'1, ..1...lu ., Ih. cII,..IIo. .,
I.,....t SIr..I. ....'~h. 10 ..Id 'A lIE-SUI OF BLOOtS 10-11 AHlJ LOTS Z TO IS INCl. 8LOCK' Of' THE REVISED IIAl'
Of' CLEARWATER lEACH'; Ik.... ,...1., .1...tI.. 0.&2 ,.... H..'~ _,ico. V.,II..I 0.1_.' 1_ 'HAYO I_I.
'SI'-2,104"E. .'1"1 Ilitl W,,'.rl, ..t'.III" .t thl elll'.rli". ,f ..,.....t Str..t ..... ..JtI .,..t.r.....r e.,.,..at
Str..t. rl.,I.tl,.I,. t., 204.02 f...: U.."e. NO,s...Z....r 1..,1", ..i~ ...t,rl, la'"ulo. .f .11. e..,.,'I", If
80_.1 51'lIt ..~ ..,d ...10,11.. ., 1._.1 Slrllr. ,..,..'h.I,. ,., 431.54 ,..1 t. THE POINT Of'
IlEGINNING.
Clnl,l.ine 12.46& I,v.r. t.., .r ....3 IC'... IItOr. .r ......
E".. .f .I.uro: O.DICle ,..I llollEJ
sa IItI:ET I filii LEU&. IIIICJUPTIOIl
sa IIUT Z fOR SlC!TCN
NOn:: THIt LECM. IIDCltIP"OIl AHO IIlactl WAI __ .'TH TlI! IDlUIT 01 THAT CDrAlN _lIT ..-.n TITUD '_ "-lIT AlII _
IoIIGM WAl'Dt LIlli: IWV!Y', I'tlD'AIlED 1'1 n.OIIIDA IICII. CDNlULTANTS. 11le.. _ __. "'-150. nc CllICTlIT roITAINI.. TO nc PMen. 01
~1t~1~.~~IID _'M 1~~:.;n':~!..l!.!OLELT - - nc A:_TIlT AS IICsaUIDI OIl TIC 1If:~ _. AI_HEIlEIN
PIlf7_ FOIl:
JMC
COMMUNITIES
SlI!ET DfSCRlI'TIClN:
CLEARWATER BEACH WEST PARCEL
SCH.l:
NONE
DAm 011"_
09/16/04 GEH
JQII ..... 0'Il:
997-250 53
SEC_
5 8 B
CALCElI:
5MB
-
29 S
ClI!CXED:
5MB
RANC(:
15 E
~ FLORDA DESIGN CONSlA.. TANTS, N1
ENGINEERS, ENVIRONMENTALISTS
JU SURVEYORS 8 PLANNERS
J030 5Iorl., IItvd.
Now 1'.,1 Rich.,. FI..... 34655
(727) 149-7511
Certificatl of Authorization: LB &707
. Stote of Florida
NOT VALID WITHOUT THE SIGNATURE
ANO THE ORIGINAL RAISED SI!Al. OF A FLORIDA
LICENSED SURVEYOR AND MAPPER.
~6
PROfESSIONAL SURVEYOR AND MAPPER
LICENSE NUMBER LS 6261
OCooV"ioht 2004 Florida DuMan ConaAtant.. Inc. Draw.... and c:onceDta mow not be wnd Of reproduclG _;thou' .ritt., p.m1S1IOft.
Sheet L of 2
Development Agreement
Page 53
ADOPTED
F~1Iy Oorvoiopr.- Af1. f7 F1NALdoc
J:~\PropaIO\Dwga\LS\5JJ97-2~LS2.d""l - Sop 1&, 2004 0 J:22pm - g/lill
Best Co
vallable
lHlS IS HQI A SUR'v'EY
HERE MAY BE ADDITIONAL RESTRICTIONS A..ECTING THIS PROPERTY THA T
AY BE FOUND IN THE PUBLIC RECORDS OF THIS COUNTY.
HIS LEGAL DESCRIPTION AND SKETCH WAS PREPARED WITHOUT THE BENEFIT
F' A TITLE POLICY.
EARlNGS ARE BASED UPON, SEE SKETCH AND LEGAL DESCRIPTION
1fESTElll. Y EXTENSIOIf OF
tHE N L.ftE or LOT 1
UNE
Ll
L2
LJ
L4
U
LI
L7
LI
U
Ll0
WiflIlt
POt - POINT or COIoIIIEHCDlDlT
POll - POI<IT or __
SEC - Sl:C1ION
COIl - CCIIlNER
fl/W - ROH or WAY
ST - 5111([T
so - SQUAll[
FT - FEET
AC - ACRES
lIOI. - UllRI[ CII Lns
PC - 'AC(
PI - PUT BOOK
DB - DaD BOOK
CII8 . 0FTICI.0l. Rl:COIlOS lOCK
NOTE, THII UGIl.. IIEICllIPTIClII _ SllETCH wu PllEPIoREIl .,TH THE 1DlE~IT llIF ""'T C[IITA'N _ ~ TITLED '_ _lIEin' _ _
HIGH.TO LIIC ~'I I'tlP'ARl:D IV n.0II111A 11I:1 I GIll ~TANTI. I"C.. _ ..- "T-1lI0. THE Of:mcTlIT '[lITAlNINO TO THE PARea OF
LoUD Ill.. DEIClIIKD _'N CTHE IlEIClIIPTlClIII II SCULl ....m _ THE Gl:lIICT1lT .u DEIClIIIO ClII THE IIECOIIIlO 1lClCIMMT' AI IIlI1EII HEIIE.N
. T ,., All
'"
-'
N89'06'59-W
182.0::5'
:J lo.DD' PmES1lIIAN EASDlDtT
-~--~~-~~-~:_-- -------
~ -1--------------------- -------
Oll)
20
fS ~fIJ
~ ~ It)
r.... ~~ -'
o f5:i
~i~
iSa
to
..J
w
!e~
. III
'" .
:r;;;
C?-.t
z
TOTAL AREA-
82.4&4 so FT
OR 1.89 ACo wa..
,...
-'
Il:l
-'
01
-'
25.DD' EASOEHT FOR SlllEU
o _I~_~_~_~~_~_~
~
S89"'2S'04-E
204.02'
HI! -':T I ~OII LEGAL DEIClIIPTlClII
I[[ SHUT e '011 SlCETCH
PIlEPAM!) f'OlI:
I
I
I
I
L
I
I
N UN( OF LOT ;
, I LOTZ
NIII'llI'srw
JIll.>>'
N UNE Of LOT 10
--rftico.t' I.O{.---- .--.-----
LOT 4 N UNE or tHE 5
110 nrr or LOT I
I
I
I
I
I
NlIII'llI'5.....
IIO.IlO'
LOT 1
5 R/W AllBUR ST
r lIEST I"E 'TRACT A
lRACT A
A RI:-SUI or BLOCXS
10-11 AND L011 2 10
15 INQ. BLOCX I Of
1HE REWiQ) IIAI' or
a..EAllWA TER IlEAOl
PI II. PC ..
jot
~s
~2
~-
UN[ TAIIl..E
BEARING
NO 4'J4
LDlGlH
!:t..... ~
~!i~........
~J~t;
.Iv iU lK
~.. ~JJ/
~ jc.~~
~ 't'
~
4"W
'41"W
,
S05'5J'
I'
4
POC
SE COIl TIIACT A
5NEET DESCIIP1ION:
JMC COMMUNITIES
CLEARWATER BEACH WEST PARCEL
SCAlE: IIA 1(: . OIIA'"
I" = 100' 09116/04 GEH
CALaIl:
5MB
.lCII 1M.: O'N:
997-250 53
5O:TICII: _
5 8 e 29 5
OltcXED:
5MB
~AHC:E:
15 E
~FLORDA DESIGN CONSLLTANTS, He.
ENGINEERS, ENVIRONMENTALISTS
J1 SURVEYORS a PLANNERS
J030 Slatk., Blvd.
N.. P.,. Rich." Florid. 34655
(727) 849.75811
Certlllcolll of Authorltallon: LB 6707
Slale of florida
NOT VALID WITHOUT THE SIGNATURE
AND THE ORIGIHAL RAISED SEAL OF A FLORIOA
s::l "~.:JC'".
SAMUEL MARK BEACH
PROFESSIONAL SURVEYOR AND MAPPER
LICENSE NUMBER LS 6261
OCop>rlo/1I 2004 Flatido De.ion ConllUllanl.. I"c. Drowinol and ....cIDI. moy ""I be ...... or r_ocIuc... with...t _Itt... ......i..ion. Sheet
Development Agreement
Page 54
ADOPTED
F:'jmc\Iu1tor'ClIy ~ N;;. 17 FINAl..doc
EXHIBIT B-3
Development Agreement
Page 55
ADOPTED
F:'jrndhunIetCIy Dew.Iopmont AQt '7 FINALdoc
u
Best Copy
.t \3J\ProPoI.\Dwgs\LS\5JJI7"25IH.S1.d", - Sop II, 2004. 4: 04p... _ ghill
lHS IS lQI A SURVEY
THERE MAY BE ADDITIONAL RESTRICTIONS ArFECTING THIS PROPERTY THAT
MAY lIE rOUND IN THE PUBLIC RECORDS or TH/5 COUNTY.
THIS LEGAL DESCRIPTION AND SKETCH WAS PREPARED WITHOUT THE BENErlT
or A TITLE POLICY.
IlEARtNGS ARE BASED UPON. SEE SKETCH AND LEGAL DESCRiPTION
LEGAL DESCRIPTION:
· ,.rcor D' la.d ~oln, 0 pDr'iDn D' SocliD.a 5 Dnd B. TDunahi, 29 South, R..,o IS E.a', Plnoll.a
CDunl,. rlDrld., ~oln, maro p,rlicuIDrl, do.cri.od a. 'DIIDua:
COMMENCE .t 'h, SDuth,.,t CDrn,r ot TrDCI A, .. RE-SUB or BLOCKS 10-11 AND LOTS Z TO 15 INCL, BLOCK
9 or THE REVISED ~ OF CLEARWATER BEACH., .1 roca,dod in Plot Book 19. '0'096 01 Iho Pu~llc
Rocord. ,t Pi..I'OI CDu.I,. FI.rld.; Ihenco HZI.37'34.E. .,.., th EOIt 'Ino Dt uld Tract .. "_
boio, Iho Wo.t Rl,ht-.'-Wa, li.o of Mandala, A.onuo. accardin, to loid .A RE-SUB OF &LOCKS 10-11 AND
LOTS Z TO 15 INCL. &LOCK 9 OF THE REVISED MAP or CLEARWATER BlACH. (BEING THE BASIS OF BEARINGS FOR
THIS DESCRIPTION). far IB2.33 foot: 'honco NOzo41'34.E alDn, .aid Ea.1 lino of Tracl A. lam. ~oln,
uid W..t RI,hI-af-Wo, Ilno of ....ndala' Aunuo. hr 110.50 foo' h 'ho ,DI.t ,f Inhructln with
th, Saulh RI,h'-ol-Wo, Ilno of Amblor S'rool, ,ccDrdln, '0 .MILLER'S REPLAT.. 01 rocardod in Pial
Book 26. PD,O 1701 uio Public Rocarda of Pinollll Counl,. Florido: Ihonco N89"'06'S9.W. alu, .o'd
Soul. RI,ht-ol.W., Ilno 01 AmGlor Stroot. tar 160.00 loot to 'ho pol.t o. intor.oclio. wllh .ho
Soulhorl, ,.I'nllon .. Iho ED.t lln' ot Lol 9. laid .MILLER'S REPLAT.; 'honco NOZ.41'34"E. oton.
loid Soulhorl, ,.tonllan of tho E.II lino of Lot 9. ond .oid E... li.o of Lot 9. r.."ct'.ol,. lor
100.05 f.., to Ih, pDinl 01 Inlor.oclion uilh Iho HDrth Ilno of Iho Sou'h 80.00 fool 01 .aid Lo' 9:
Ihonco N89.06'59.W. "an, .old Harth lin, 01 Ih. Soulh 80.00 fo,' of LDI 9. lor 60.00 foot to tho
,oiat of 'nloruellon wllh tho W..I 11110 of .old Lot 9; Ihenco NOZ.41'34.E. alan, IOld WOIt line 01
Lot 9. for 6.96 '001 10 Iho. Horthuul cornor 01 lDid Lol 9; Ihonco N89.06'59.W. olon, tho Norlh 11n.
of Lol 10. .oid .MILLER'S REPLAT". Ih. Horlh li.o 01 Lot I.. IDld .MILLER'S REPLAT.. .nd Iho WOIlorl,
IIh..lon of lOid Nor'h I i., of Lot " rupoctinl,. far 199.15 10 tho POINT OF BEGI~IHG: thonc.
S03.4Z'16.W loulng nid Horlh IIno 01 Lol 10. nid .MILLER'S REPLAT.. Iho Horlh Ilno of Lot I, IDld
"MILLER'S REPLAT" , ond Iho WOIhrl, ,,'onlion 01 nid Norlh lino of Lol I. rllpocth,',. for 430.48
t.,1 to tho IlItor"clloo of Ih. W..torl, oltOnlion of Iho Conlorllno Bo,meol Slroot : Ih,"c,
N89026'04.W alon9 .old Wutarll OIlo..ion of Iho Cenlorlino BOYlIIOnl Slroot. for 190.29 ".1: thonco
N0304Z'I6'E lonla, IIld .00lorl, IIhll,'an of Iho conlorli.. 01 BO,IIIOnl Slro.l. for 431.54 foot 10
I.. Inlor..clioa of Iho Wulorl, IIlontion of Ih. c.nlorlino at BO,lIIOnl Slrool: IIl,aco aloft' .old
...tort, E.to..lon 01 Iho Soulh Ilno of Iho Norlh Amblor Strool 589.06'59"E. for 19O.Z3 foot 10 tho
POINT OF BEGINNING,
Contolnl., 8.1.894 .~ua'o f.ol or 1.880 ocr... IIIOro Dr ,....
Error 0' clo.uro: 0.001 fool ISMS)
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Development Agreement
Page 56
ADOPTED
F~~AfI.'7FINAt..doc
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Development Agreement
Page 57
ADOPTED
F~1Iy OoooiopmortAgt 17 FINALdac
EXHIBIT C
Development Agreement
Page 58
ADOPTED
F~~AgI17 FINAl..doc
EXHIBIT C
Project Site
ROCKAWAY ST.
8 J BEACH
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Development Agreement
Page 59
ADOPTED
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F~ 0ewi0pm0tt1'flC 17 FI__doc
EXHIBIT 0
Development Agreement
Page 60
ADOPTED
F:'jmdhunlorlCly Doveicli>mon ~ 17 FINALdac:
Phase
Hotel
Residential Tower
Residential/Retail
EXHIBIT D
Project Development Schedule
Estimated
Commencement Date
Estimated
Completion Date
July 1, 2005
July 1, 2005
July 1, 2006
February 1, 2007
July 1, 2007
January 1, 2008
Developer reserves the right to change the commencement order of any phase. Estimated
commencement dates are subject to marketing cmditions and permitting timelines.
Section 7.02 of the Development Agreement provides deadlines for Commencement and
Completion of each Phase of the Project as follows:
Phase Deadline for Commencement
Deadline for Completion
Hotel See definition for "Hotel
Commencement Deadline" in
Section 7.02.1.a.
Two (2) years after Commencement
Date of Hotel Phase
Residential Tower See definition for "Hotel
Commencement Deadline" in
Section 7.02.1.a.
Two (2) years after Commencement
Date of Residential Tower Phase
Residential/Retail Two (2) years after Hotel
Commencement Deadline
Eighteen (18) months after
Commencement Date of
Residential/Retail Phase
The foregoing deadlines shall be incorporated into the Development Order for the Project.
Development Agreement
Page 61
ADOPTED
F~1ty ~1\fP 17 FINALdoc
EXHIBIT E
Development Agreement
Page 62
ADOPTED
F:'jrnd/lInOl\Cly Devoiopmon Age 17 FlNAL.doc
. .
EXHIBIT E
Covenant Regarding Trip Generation Management Program
DECLARATION OF COVENANTS AND RESTRICTIONS
of
THIS DECLARATION OF COVENANTS AND RESTRICTIONS is made as of the
, 200_ by CBR Development I, LLC ("DEVELOPER").
day
DEVELOPER is the owner of fee simple title to all of the real property described in Exhibit 1
attached hereto and made a part hereof (hereinafter the"Real Property"). The City of Clearwater
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 preliminary design for the revitalization of
Clearwater Beach.
The designation of Clearwater Beach as a Community Redevelopment District provide for
the allocation of bonus resort units as an incentive for the development of destination quality resorts
with a full complement of resort amenities. Pursuant to the designation of Clearwater Beach as a
Community Redevelopment District, the allocation of bonus resort units is subject to compliance
with a series of performance standards, including a requirement that the resort hotel to be
developed on the Real Property implements a trip generation management program to reduce the
number of vehicle trips generated by the used and operation of the Real Property.
The City of Clearwater has granted. by City Commission Resolution passed
and approved on , DEVELOPER's application for an allocation of bonus resort
units pursuant to the provisions of the designation of Clearwater Beach as a Community
Redevelopment District and subject to compliance with the requirements of the designation of
Clearwater Beach as a Community Redevelopment District. DEVELOPER desires for itself. and its
successors and assigns, as owners 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 bonus resort units to Clearwater and the designation of
Clearwater Beach as a Community Redevelopment District. 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 bonus resort units to
DEVELOPER and other good and valuable consideration, the sufficiency of which is hereby
acknowledged. DEVELOPER hereby declares. covenants, and agrees as follows:
1. Benefit and Enforcement. These covenants and restrictions are made for the benefit
of DEVELOPER and its successors and assigns and shall be enforceable by them
and also for the benefit of the residents of the City of Clearwater. Florida, and shall
be enforceable on behalf of the said residents exclusively by the City Commission of
the City of Clearwa~r.
2. Covenant to Preoare and Imolement a Trio Generation Management Program.
DEVELOPER hereby covenants and agrees to the development, use, and operation
of the Real Property in accordance with the provisions of this Declaration.
Development Agreement
Page 63
ADOPTED
F:';no\hunIelICIlleveIapr'*II Agt 17 FINALdac
2.1 Trip Generation Management Program. DEVELOPER shall prepare a Trip
Generation Management Program which includes, at a minimum, the
program elements which are set out in Exhibit~, which is attached hereto
and incorporated herein.
2.2 Imolementation. DEVELOPER shall take all necessary and appropriate steps
to implement the approved Trip Generation Management Program and the
selected management strategies.
3. Effective Date. This Declaration shall become effective immediately upon its
recording.
4. Governina 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 Court of Pinellas County, Florida.
6. Attorneys Fees. DEVELOPER shall reimburse the City of Clearwater for any
expenses, including attorneys' fees, which are incurred by the City of Clearwater 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 the Court.
7. Severability. If any provision, or part hereof, 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 Jaw.
Development Agreement
Page 64
ADOPTED
F~Iy~1917 FINAl-doc
. ,
IN WJTNESS WHEREOF, CBR Development I, LLC has caused this Declaration of
Covenants and Restrictions to be executed this day of
,200_.
Signed and sealed delivered
Jn the presence of:
STATE OF FLORIDA
COUNTY OF PINELLAS
caR DEVELOPMENT I, LLC,
a Florida limited liability company
By: CBR Communities J, Ltd.,
a Florida limited partnership
Managing Member
By: JMC Communities of Clearwater V, Jnc.
a Florida corporation, General Partner
By:
Name: J. Michael Cheezem
Title: CEO
The foregoing instrument was acknowledged before me this _ day of ,
200~, J. Michael Cheezem, as CEO of JMC Communities of Clearwater V, Inc., a Florida
corporation, the General Partner of CaR Communities I, Ltd., a Florida limited partnership, the
Managing Member of CBR Development I, LLC, a FJorida limited liability company, who is 0
personally known to me or 0 has produced a Florida driver's license or 0
as identification.
Development Agreement
Page 65
ADOPTED
NOTARY PUBLIC
Printed Name:
Commission No.
My Commission expires:
F~OI'CIy ~ 19 17 FINAl-doc
. ,
EXHIBIT 1
PARCEL 1:
THAT PART OF TRACT A OF A RE-SUBDIVISION OF BLOCK 10 AND 11, AND LOTS 2 TO 15,
INCLUSIVE, BLOCK 9, OF THE REVISED MAP OF CLEARWATER BEACH, AS RECORDED IN
PLAT BOOK 19, PAGE 96, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA,
DESCRIBED AS FOLLOWS:
BEGIN AT THE SOUTHEAST CORNER OF THE SAID TRACT AAS SHOWN AS 3.68 ACRES, TO
THE POINT OF BEGINNING, BEING A POINT AT THE INTERSECTION OF THE NORTH LINE OF
BA YMONT STREET, AS SAID BA YMONT STREET IS SHOWN ON SAID RE-SUBDIVISION OF
BLOCKS 10 AND 11 AND LOTS 2 TO 15, INCLUSIVE, BLOCK 9 OF THE REVISED MAP OF
CLEARWATER BEACH, WITH THE WESTERLY LINE OF MANDALA Y ROAD, AND RUN THESE
N.200 45'00"E, 182.23 FEET; THENCE N 01044'00" E, 110.51 FEET TO THE CENTERLINE OF
. AMBLER STREET, SAID AMBLER STREET IS SHOWN AND DEDICATED AS A PUBLIC STREET
IN THE REVISED MAP OF CLEARWATER BEACH, AS RECORDED IN PLAT BOOK 11, PAGE 5,
OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA; THENCE WEST ALONG THE
CENTERLINE OF SAID AMBLER STREET 420.00 FEET, MORE OR LESS, TO THE WATER OF
THE GULF OF MEXICO; THENCE IN A SOUTHERLY DIRECTION ON A MEANDERING LINE
ALONG THE WATERS OF THE GULF OF MEXICO, 321.00 FEET, MORE OR LESS, TO THE
CENTERLINE OF SAID BA YMONT STREET; THENCE EAST 385.00 FEET, MORE OR LESS,
ALONG SAID CENTERLINE OF BA YMONT STREET TO A POINT 40.00 FEET SOUTH OF THE
POINT OF BEGINNING; THENCE NORTH 40.00 FEET TO THE POINT OF BEGINNING.
PARCEL 2:
THE NORTH 20.00 FEET OF V ACA TED AMBLER STREET LYING WEST OF THE EAST LINE OF
LOT 9, PROJECTED SOUTH AS SHOWN ON THE PLAT OF MILLER'S REPLA T, AS RECORDED
IN PLAT BOOK 26, PAGE 17, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA.
PARCEL 3:
LOT 1 AND 10 AND THE SOUTH 80.00 FEET OF LOT 9 OF MILLER'S REPLAT, AS
RECORDED IN PLAT BOOK 26, PAGE 17, OF THE PUBLIC RECORDS OF PINELLAS
COUNTY, FLORIDA.
Development Agreement
Page 66
ADOPTED
F~~Agl 17 FINAl-doc
. .
EXHIBIT 2
TRIP GENERATION MANGEMENT PROGRAM
1. Prior to issuance of the Certificate of Occupancy for the Project, the DEVELOPER shall
implement a Transportation System Management Plan. This Plan shall establish practices,
procedures, and costs/fees for services to reduce the number of trips to and from the site.
Examples of methods, which may be considered are:
a. Guest shuttle services/airport
b. Guest shuttle services/activities
c. Employee shuttle
d. Non-motorized modes for guests
e. Fixed route transit
f. Taxis/demand responsive transit
g. Non-motorized modes for employees
h. Staggered working hours
The plan will address the trip characteristics of resort occupancy, compare and contrast the
generation and reduction methods against non transient units and create a supporting trip
utilization projection for the Beach by Design transit proposal from both hotel visitors and
garage patrons. The plan will apply a best methods approach. City and County
transportation programs may also generate additional methods based on special studies or
intergovernmental program funding (County.wide Gulfview Trolley System).
2. Prior to issuance of a Certificate of Occupancy for the Project, the DEVELOPER shall submit
a Hurricane Evacuation Plan to the City. This Plan shall establish practices and procedures
to be implemented when a hurricane watch is established for Clearwater. These practices
and procedures will lead to evacuation of the Project when a hurricane watch is issued for
Clearwater.
Development Agreement
Page 67
ADOPTED
F:'jmdhunIoI\CIy ~ AG117 FINAl-doc
, .
EXHIBIT F
Development Agreement
Page 68
ADOPTED
F~Iy~Agl17 FINAl-doc
EXHIBIT F
Covenant Regarding Hurricane Watch Closure
DECLARATION OF COVENANTS AND RESTRICTIONS
THIS DECLARATION OF COVENANTS AND RESTRICTIONS is made as of the ~ day
of ,200 ,by CBR DEVELOPMENT I, LLC, a Florida limited liability company
("DEVELOPER").
DEVELOPER is the owner of fee simple title toall of the real property described in Exhibit
"A" attached hereto and made a part hereof (hereinafter the "Real Property"). The City of Clearwater
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 preliminary design for the revitalization of
Clearwater Beach.
The designation of Clearwater Beach as a Community Redevelopment District provides for
the allocation of bonus hotel units as an incentive for the development of destination quality resorts
with a full complement of resort amenities. Pursuant to the designation of Clearwater Beach as a
Community Redevelopment District, the allocation of bonus hotel units is subject to compliance with
a series of performance standards, including a requirement that resorts developed with bonus hotel
units pursuant to the Community Redevelopment District shall be closed and all guests evacuated
from the resort within twelve (12) hours after the National Hurricane Center posts a hurricane watch
that includes Clearwater Beach. The purpose of the evacuation of the Real Property within twelve
(12) hours of the issuance of a hurricane watch is to ensure that the Real Property 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 of Clearwater has granted, by City Council Resolution , passed and
approved on , DEVELOPER'S application for an allocation of bonus hotel units
pursuant to the provisions of the designation of Clearwater Beach as a Community Redevelopment
District subject to compliance with the requirements of the designation of Clearwater Beach as a
Community Redevelopment District. DEVELOPER desires for itself and its successors and assigns,
as owners 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
bonus hotel units to Clearwater and the designation of Clearwater Beach as a Community
Redevelopment District, 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 bonus resort units to
DEVELOPER, and other good and valuable consideration, the sufficiency of which is hereby
acknowledged, DEVELOPER hereby declares, covenants and agrees a; 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 it and
also for the benefit of the residents of the City of Clearwater, Florida, and shall be
enforceable on behalf of the said residents by the City Commission of the City of
Clearwater.
Development Agreement
Page 69
ADOPTED
F:'jmdIvIler\CIy ~ Agl 17 FINAl-doc
2. Covenant of Develooment. Use. and Ooeration. DEVELOPER hereby covenants
and agrees to the development, use, and operation of the Real Property in
accordance with the provisions of this Declaration.
2.1 Use. The use of the resort on the Real Property is restricted as follows:
2.1.1 A minimum of two hundred (200) units shall be made available to
transient guests for no fewer than three hundred thirty (330) days in
any calendar year, subject to force majeure events making such
room unavailable for occupancy, must be licensed as a public
lodging establishment and classified as a hotel, and must be
operated by a single licensed operator of the hotel who shall meet
the requirements as to operating standards as set forth in Exhibit B-1
to Development Agreement between the City of Clearwater and
Developer dated , 200_.
2.1.2 All other hotel units shall be licensed as a public lodging
establishment, classified as a hotel or resort condominium with
occupancy limited to stays of thirty (30) days or less.
2.1.3 No hotel unit shall be used as a primary or permanent residence.
2.1.4 As used herein, the terms "transient occupancy," .public lodging
establishment," "hotel," "resort condominium," and "operator" shall
have the meanings given to such terms in Chapter 509, Part I,
Florida Statutes (2004).
2.2 Closure of Improvements and Evacuation. The improvements developed on
the Real Property shall be promptly closed upon the issuance of a hurricane
watch by the National Hurricane Center which hurricane watch includes
Clearwater Beach and all guests, visitors, and employees, other than
emergency and security personnel required to protect the improvements,
shall be evacuated from the Real Property within twelve (12) hours of the
issuance of said hurricane watch. In the event that the National Hurricane
Center shall modify the terminology employed to warn of the approach of
hurricane force winds, the closure and evacuation provisions of this
Declaration shall be governed by the level of warning employed by the
National hurricane Center which precedes the issuance of a forecast of
probable landfall in order to ensure that the guests, visitors, and employees
will be evacuated substantially in advance of the issuance of a forecast of
probable landfall.
3. Effective Date. This Declaration shall become effective immediately upon its
recording.
4. Governino Law. This Declaration shall be construed in accordance with and
governed by the laws of 1he 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 of Clearwater for any
Development Agreement
Page 70
ADOPTED
F~~Jq.17 FINAl-doc
expenses, including attorneys fees, which are incurred by the City of Clearwater in
the event that the City determines that it is necessary and appropriate to seek
judicial enforcement of these Declarations and the City obtains relief, whether by
agreement of the parties or through order of the Court.
7. Severability. If any provisions, 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 permlted by law.
BALANCE OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOLLOWS
Development Agreement
Page 71
ADOPTED
F~~1917FINAl.doc:
IN WITNESS WHEREOF, CBR Development I, LLC, has caused this Declaration of
Covenants and Restrictions to be executed this day of , 2005.
Signed and sealed delivered
In the presence of:
CBR DEVELOPMENT I, LLC,
a Florida limited liability company
By: CBR Communities I, Ltd.,
a Florida limited partnership
Managing Member.
By: JMC Communities of Clearwater V, Inc.
a Florida corporation, General Partner
By:
Name: J. Michael Cheezem
Title: CEO
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day of ,
2005, by J. Michael Cheezem, as CEO of JMC Communities of Clearwater V, Inc., a Florida
corporation, the General Partner of CBR Communities I, Ltd., a Florida limited partnership, the
Managing Member of CBR Development I, LLC, a Florida limited liability company, who is 0
personally known to me or 0 has produced a Florida driver's license or 0
as identification.
NOTARY PUBLIC
Printed Name:
Commission No.
My Commission expires:
Development Agreement
Page 72
ADOPTED
F:';tIdhunIot\CI ~ AG117 FlNAL..doc
. .
EXHIBIT "A"
SOUTH BLOCK
Lots 1 - 13 and 49 - 56, Clearwater Beach Park, as per plat thereof recorded in Plat Book 10, Page
42, of the Public Records of Pinellas County, Florida.
Lots 43 through 48, Lots 65 through 71, and the South 14.75 feet of Lot 64, CLEARWATER BEACH
PARK, as recorded in Plat Book 10, Page 42, of the Public Records of Pinellas County, Florida.
NORTH BLOCK
PARCEL 1:
THAT PART OF TRACT A OF A RE-SUBDIVISION OF BLOCK 10 AND 11, AND LOTS 2 TO 15,
INCLUSIVE, BLOCK 9, OF THE REVISED MAP OF CLEARWATER BEACH, AS RECORDED IN
PLAT BOOK 19, PAGE 96, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA,
DESCRIBED AS FOLLOWS:
BEGIN AT THE SOUTHEAST CORNER OF THE SAID TRACT A AS SHOWN AS 3.68 ACRES, TO
THE POINT OF BEGINNING, BEING A POINT A TTHE INTERSECTION OF THE NORTH LINE OF
BA YMONT STREET, AS SAID BA YMONT STREET IS SHOWN ON SAID RE-SUBDIVISION OF
BLOCKS 10 AND 11 AND LOTS 2 TO 15, INCLUSIVE, BLOCK 9 OF THE REVISED MAP OF
CLEARWATER BEACH, WITH THE WESTERLY LINE OF MANDALA Y ROAD, AND RUN THESE
N 20045'00" E, 182.23 FEET; THENCE N 01044'00" E, 110.51 FEET TO THE CENTERLINE OF
AMBLER STREET, SAID AMBLER STREET IS SHOWN AND DEDICATED AS A PUBLIC STREET
IN THE REVISED MAP OF CLEARWATER BEACH, AS RECORDED IN PLAT BOOK 11, PAGE 5,
OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA; THENCE WEST ALONG THE
CENTERLINE OF SAID AMBLER STREET 420.00 FEET, MORE OR LESS, TO THE WATER OF
THE GULF OF MEXICO; THENCE IN A SOUTHERLY DIRECTION ON A MEANDERING LINE
ALONG THE WATERS OF THE GULF OF MEXICO, 321.00 FEET, MORE OR LESS, TO THE
CENTERLINE OF SAID BA YMONT STREET; THENCE EAST 385.00 FEET, MORE OR LESS,
ALONG SAID CENTERLINE OF BA YMONT STREET TO A POINT 40.00 FEET SOUTH OF THE
POINT OF BEGINNING; THENCE NORTH 40.00 FEET TO THE POINT OF BEGINNING.
PARCEL 2:
THE NORTH 20.00 FEET OF VACATED AMBLER STREET LYING WEST OF THE EAST LINE OF
LOT 9, PROJECTED SOUTH AS SHOWN ON THE PLAT OF MILLER'S REPLA T, AS RECORDED
IN PLAT BOOK 26, PAGE 17, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA.
PARCEL 3:
LOT 1 AND 10 AND THE SOUTH 80.00 FEET OF LOT 9 OF MILLER'S REPLAT, AS
RECORDED IN PLAT BOOK 26, PAGE 17, OF THE PUBLIC RECORDS OF PINELLAS
COUNTY, FLORIDA.
Development Agreement
Page 73
ADOPTED
F~~1917FlNALdoc
. .
EXHIBIT G
Development Agreement
Page 74
ADOPTED
F:'jmdhunIoI\CIy ~ Agl17 FlNAl..doc
EXHIBIT G
List of Required Permits
The following Permits/Approvals will be required and issued for development.
Permits
· City of Clearwater - Building Permit
· City of Clearwater - Right of Way Use Permit
· FDEP - CCCL Permit
· FDEP - Sewer Permit
· FDEP - National Pollution Discharge Elimination System Permit
· Pinel/as County Health Department - Water
· SWFWMD - Environmental Resource Permit
· SWFWMD, Army Corps, Fish & Wildlife- Boat Docks
Approvals
· Community Development Board - Site Plan
· Clearwater City Council- Development Agreement
· City of Clearwater Board of Pdjustments - Seawall Setback Variance
· City of Clearwater Board of Adjustments - Flood Zone Improvements
· City Council - Vacation of Gulfview Boulevard
Development Agreement
Page 75
ADOPTED
F~Iy~..... AG117 FlNAl..doc
I
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EXHIBIT H
Development Agreement
Page 76
ADOPTED
1'~~Atl.17FlNAL.doc
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EXHIBIT H
Mandalay Improvements
The Mandalay Improvements include the following work to be done in the City right-of-way along
Mandalay Avenue between Baymont Street and Ambler Street:
By THE CITY OF CLEARWATER
· Effective treatment for lift station odor caused by hydrogen sulfide gases.
BY THE DEVELOPER
· Realignment of the street curb as depicted on site plan attached as ExhibitH-1.
· Installation of City concrete sidewalk as depicted on attached site plan. Sidewalk finish to
have the same "shell" finish as other recently installed City sidewalks in the area. All
landscaping on the west side of Mandalay Avenue as depicted on attached site plan.
· Adjustments to street lighting or other utilities deemed necessary as a result of the. above
improvements.
· Relocation of overhead utilities to underground.
· Signs, and other streetscape improvements as depicted on the attached site plan.
· Relocation of the electrical panels at the City's lift station to the location, as depicted on
Exhibit H-2, in accordance with City requirements attached as ExhibitH-3.
· Design and construct Mandalay Drainage Improvements:
stormwater outfall for Hotel Phase. Outfall to be to Clearwater Harbor
approximately 700 feet north of the centerline of Baymont Street. Drainage
from Saymont Street and the "pool area" of the Hotel Phase will drain to ,the
Baymont drainage system that flows easterly along Baymont to Clearwater
Harbor.
Development Agreement
Page n
ADOPTED
F:';nc\IuIlet'Cl ~ 19 17 FlNAL.doc
. .
EXHIBIT H-1
Development Agreement
Page 78
ADOPTED
F~~1"lI17FlNAL.doc
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Development Agreement
Page 80
ADOPTED
F~~19 17 FINAL.doc
EXHIBIT H.2
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LIFT STATION IMPROVEMENTS
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Page 81
ADOPTED
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EXHIBIT H-3
Development Agreement
Page 82
ADOPTED
F:'jItIdluUt\CIy ~ Agl 17 FINAl-doc
EXHIBIT H-3
City Lift Station Requirements:
1. New electrical equipment should be provided. This will allow continued operation of the
lift station uninhibited until the new equipment is ready to be placed in service.
. 2. Spare conduits will be installed for use as needed by the City.
3. Easements will be granted to the City over the building room and conduit corridor.
4. All work will be approved by the City before construction. All permits must be paid for
and obtained by the Developer.
5. The electrical control room must be of sufficient size to allow future equipment
improvements and accommodate at least two electricians working in the area. The room should
either have a window or the resort understands the door will remain open when needed, so
maintenance staff has line of site view to the wet well. The room must be climate controlled.
6. Locks for the room will be City standard. The City cannot provide City keys to private
entities.
7. AnHOA (Hand, Off, Automatic) panel must be at the wet wel area for control of the
station.
8. The development will provide backup generator power on the line side of the power feed
for the lift station.
9. A generator receptacle must be provided at the lift station.
10. There must be an area light to iIIumhate the lift station area~
11. There cannot be any overhead restrictions in the lift station area.
12. A second odor control unit is suggested to help ensure that odors do not escape the lift
station area.
13. Developer agrees that the lift station sis is a valuable City asset, and maintenance must
be performed, as the City deems necessary, to ensure the proper operation. Maintenance may
include use of heavy equipment, such as a vacuum, crane, generator, etc. Developer will not
inhibit any activities the City deems necessary to ensure operation of the lift station.
NOTE: City will grant Developer impact fee credits for cost of replacement equipment provided
to City.
Development Agreement
Page 83
ADOPTED
F~~AG117 FINAL.doc:
EXHIBIT I
Development Agreement
Page 84
ADOPTED
F:'jmc:\Iu1loI\C ~ 19 .'7 FINAI..doc
I
EXHIBIT I
Baymont Improvements
The Baymont Improvements include the following work to be done in the City righklf-way along
that portion of Baymont Street which is located to the west of Mandalay Avenue.
By THE CITY OF CLEARWATER
· None
By THE DEVELOPER
· Landscaping, and other streetscape improvements as depicted on site plan attached as
Exhibit 1-1.
. New street curbs as depicted on approved site plan, including realignment of the curb on the
north side of the street.
· Elimination of the five public parking spaces along the north side of the street in order to
accommodate the hotel vehicular entries as depicted on attached site plan.
. Creating a cul-de-sac at the western end of Baymont and repaving using pavers the same
as or similar to the pavers on Papaya Street and San Marco Street.
. New City concrete sidewalks as depicted on approved site plan, including the sidewalk from
the westerly end of the cul-de-sac heading west to the beach. Sidewalk finish to have the
same "shell" finish as other recently installed City sidewalks in the area, or a mutually
approved paver alternate.
· Adjustments to street lighting and/or other utilities deemed necessary as a result of the
above improvements.
· Relocation of overhead utilities to underground.
· Traffic Operations Division has determined the need for an exclusive right turn lane. The City
will allow the Project to proceed per plan; however once the Project is completed the
Developer shall conduct periodic delay studies every four months at the intersection of
Baymont Street and Mandalay Avenue for one year after the date of the Construction
Completion Certificate issued by the City. The study shall analyze the delay for each
eastbound movement and the impacts on the intersection as well as count the pedestrian.
traffic on all four approaches of the intersection. The study shall be submitted to "Traffic
Operations" for review. If it is determined by "Traffic Operations" thatthe right turn lane is
needed then the Developer shall install the lane at its expense.
Development Agreement
Page 85
ADOPTED
F~1y ~AG117 FINAl-doc
EXHIBIT 1-1
Development Agreement
Page 86
ADOPTED
~~~1917FlNAL.doc
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Page 87
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Development Agreement
Page 88
ADOPTED
F:'jml:lhunIWoCI ~ 19 17 FlNAL.doc
EXHIBIT J
Ambler Improvements
The Ambler improvements include the following work to be done in the City right-of-way along
Ambler Street:
By THE CITY OF CLEARWATER
· None
By THE DEVELOPER
· Construct certain portions of hotel above Ambler pedestrian easement while still maintaining
on-grade vehicular and pedestrian access consistent with current as-built conditions.
Vertical clearance shall be a minimum of 7'6" consistent with current clearance.
· Re-grading and repaving portions of Ambler Street as deemed necessary to function
effectively with the ground level hotel design.
Development Agreement
Page 89
ADOPTED
F~~AG117 FlNAL.doc
EXHIBIT K
Development Agreement
Page 90
ADOPTED
F:'jmd/UlIOI'CIy ~ Agl17 FINAL.doc
EXHIBIT K
San Marco Improvements
The San Marco improvements include the following work to be done in the City right-of-way along
San Marco Street west of Mandalay Avenue.
By THE CITY OF CLEARWATER
· Reimburse Developer for the cost of design, permitting and storm sewer construction.
BY THE DeVELOPER
· Install new sanitary sewer line from westernmost sanitary manhole in San Marco Street and
connect to manhole in Mandalay Avenue. New sanitary sewer line will requireremoval of
asphalt and pavers on the north half of San Marco.
· Design, permit and construct storm sewer outfall for Residential/ Retail phase, including
drainage from San Marco. Outfall to connect to storm sewer on Mandalay Avenue.
· San Marco access to adjacent norrdeveloper controlled properties will be maintained.
· Provide dumpster collection area and relocate sidewalk and landscaping in dumpster area
as per approved site plan.
Development Agreement
Page 91
ADOPTED
F~~AG117FINAL.doc
EXHIBIT L
Development Agreement
Page 92
ADOPTED
F~~1917FlNAL.doc
EXHIBIT L
Amenity Improvements
The amenity improvements as listed below are generally those improvements which will be located
seaward of the Coastal Construction Control Line (CCCL) and/or located at a lower elevation than
the V-zone Flood Line. Please note it is the Developer's intent to minimize improvements that could
be considered non-conforming with FEMA Guidelines, and as a result of these improvements, there
will be a net reduction of approximately 30,000 square feet of habitable space currently below the V-
Zone elevation.
· Parking, storage and building access points as depicted on approved site plan.
· Pools, pool decks, boardwalks, pool restrooms, and pool equipment as depicted on
approved site plan.
· Open-sided gazebo as depicted on approved site plan.
· Pools ide bar and grill, with natural gas grill, sink and removable refrigerator/ice machine as
depicted on approved site plan.
· Portion of existing structures renovated into a beach social room, storage and baths as
depicted on approved site plan.
· Landscape as depicted on approved site plan.
Development Agreement
Page 93
ADOPTED
F~ DoYtIIopn.c 19 17 FIHAL.doc
EXHIBIT M
Development Agreement
Page 94
ADOPTED
F~~19'7FlNALdoc
EXHIBIT M
Covenant of Unified Use
THIS INSTRUMENT PREPARED BY
AND WHEN RECORDED, RETURN TO:
. Robert F. Greene, Esquire
Greene & Schermer
1301 Sixth Avenue W, Suite 400
Bradenton, Florida 34205
COVENANT OF UNIFIED USE
THIS COVENANT OF UNIFIED USE (the "Agreement") is executed 'this day of
, 200_ (the "Effective Date") by CBR DEVELOPMENT I, LLC, a Florida
limited liability company and CBR DEVELOPMENT II, LLC, a Florida limited liability company
("collectively, Owner").
WIIN E~~fIH:
WHEREAS, Owner is the owner of the real property legally described on Exhibit A attached
hereto and incorporated herein by reference (the "Property"); and
WHEREAS, Owner and the City of Clearwater (the "City") are parties to that certain
Deyelopment Agreement dated ,200_. (the "Development
Agreement") pursuant to which the City has agreed that Owner may develop and construct upon the
Property a multi-use project consisting of not less than 240 and not more than 260 hotel units
(including condominium hotel units), not more than 120 residential condominium units and not more
than 11,000 square feet of retail space and a minimum of 431 parking spaces all as more
particularly described in the Development Agreement; and
WHEREAS, Owner has agreed that the Property shall be developed and operated for a
unified use, as more particularly described hereinbelow.
NOW THEREFORE, in consideration of the sum ofTen Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner does
hereby agree that the Property shall be developed and operated as a unified mixed-use project such
that the components shall have certain shared parking facilities as shown on the approved site plan.
The restrictions set forth in the preceding sentence shall survive for a period of twenty (20) years
from the Effective Date of this Agreement. Nothing in this Agreement shall preclude the purchase
and sale of the residential units and condominium hotel units and all other components of the mixed-
use project constructed upon the Property to separate, unrelated third-party owners, so long as all
components of the project are operated with the shared parking facilities throughout the term of this
Agreement. Owner agrees that the City shall have the right to enforce the terms and conditions of
this Agreement.
Development Agreement
Page 95
ADOPTED
F~ CtMIIopmenl AG117 FlNALdoc
IN WITNESS WHEREOF, the undersigned has executed this Covenant of Unified Use
effective the day and year first above written.
Witnesses:
CBR DEVELOPMENT I, LLC,
a Florida limited liability company
Print Name:
By:
CBR Communities I, Ltd.,
a Florida limited partnership
Managing Member
By: JMC Communities of Clearwater V, Inc.
a Florida corporation, General Partner
Print Name:
By:
Name: J. Michael Cheezem
Title: CEO
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of
, 200_, J. Michael Cheezem, as CEO of JMC Communities of Clearwater
V, Inc., a Florida corporation, the General Partner of CBR Communities I, Ltd., a Florida limited
partnership, the Managing MemberofCBR Development I, LLC, a Florida limited liability company,
who is 0 personally known to me or 0 has produced a Florida driver's license or 0
as identification.
NOTARY PUBLIC
Printed Name:
Commission No.
My Commission expires:
Development Agreement
Page 96
ADOPTED
F:';ndhunIoI'CIy ~ Agl17 FlNAL.doc
Witnesses:
Print Name:
CBR DEVELOPMENT II, LLC,
a Florida limited liability company
By: CBR Communities II, ltd.,
a Florida limited partnership
Managing Member
By: JMC Communities of Clearwater VI, Inc.
a Florida corporation, General Partner
Print Name:
By:
Name: J. Michael Cheezem
Title: CEO
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of
,200_, J. Michael Cheezem, as CEO of JMC Communities of CJearwater
VI, Inc., a Florida corporation, the General Partner of CBR Communities II, ltd., a Florida limited
partnership, the Managing MemberofCBR Development II, LLC, a Florida limited liability company,
who is 0 personally known to me or 0 has produced a Florida driver's license or 0
as identification.
NOTARY PUBLIC
Printed Name:
Commission No.
My Commission expires:
Development Agreement
Page 97
ADOPTED
F~~I917 Fl'W..doc
EXHIBIT A
SOUTH BLOCK
Lots 1 - 13 and 49 - 56, Clearwater Beach Park, as per plat thereof recorded in Plat Book 10, Page
42, of the Public Records of Pinellas County, Florida.
Lots 43 through 48, Lots 65 through 71, and the South 14.75 feet of Lot 64, CLEARWATER BEACH
PARK, as recorded in Plat Book 10, Page 42, of the Public Records of Pine lias County, Florida.
NORTH BLOCK
PARCEL 1:
THAT PART OF TRACT A OF A RE-SUBDIVISION OF BLOCK 10 AND 11, AND LOTS 2 TO 15,
INCLUSIVE, BLOCK 9, OF THE REVISED MAP OF CLEARWATER BEACH, AS RECORDED IN
PLAT BOOK 19, PAGE 96, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA,
DESCRIBED AS FOLLOWS:
BEGIN AT THE SOUTHEAST CORNER OF THE SAID TRACT A AS SHOWN AS 3.68 ACRES, TO
THE POINT OF BEGINNING, BEING A POINT AT THE INTERSECTION OF THE NORTH LINE OF
BA YMONT STREET, AS SAID BA YMONT STREET IS SHOWN ON SAID RE-SUBDIVISION OF
BLOCKS 10 AND 11 AND LOTS 2 TO 15, INCLUSIVE, BLOCK 9 OF THE REVISED MAP OF
CLEARWATER BEACH, WITH THE WESTERLY LINE OF MANDALA Y ROAD, AND RUN THESE
N 20045'00" E, 182.23 FEET; THENCE N 01044'00" E, 110.51 FEET TO THE CENTERLINE OF
AMBLER STREET, SAID AMBLER STREET IS SHOWN AND DEDICATED AS A PUBLIC STREET
IN THE REVISED MAP OF CLEARWATER BEACH, AS RECORDED IN PLAT BOOK 11, PAGE 5,
OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA; THENCE WEST ALONG THE
CENTERLINE OF SAID AMBLER STREET 420.00 FEET, MORE OR LESS, TO THE WATER OF
THE GULF OF MEXICO; THENCE IN A SOUTHERLY DIRECTION ON A MEANDERING LINE
ALONG THE WATERS OF THE GULF OF MEXICO, 321.00 FEET, MORE OR LESS, TO THE
CENTERLINE OF SAID BA YMONT STREET; THENCE EAST 385.00 FEET, MORE OR LESS,
ALONG SAID CENTERLINE OF BA YMONT STREET TO A POINT 40.00 FEET SOUTH OF THE
POINT OF BEGINNING; THENCE NORTH 40.00 FEET TO THE POINT OF BEGINNING.
PARCEL 2:
THE NORTH 20.00 FEET OF VACATED AMBLER STREET LYING WEST OF THE EAST LINE OF
LOT 9, PROJECTED SOUTH AS SHOWN ON THE PLAT OF MILLER'S REPLA T, AS RECORDED
IN PLAT BOOK 26, PAGE 17, OFTHE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA.
PARCEL 3:
LOT 1 AND 10 AND THE SOUTH 80.00 FEET OF Lor 9 OF MILLER'S REPLA T, AS
RECORDED IN PLAT BOOK 26, PAGE 17, OF THE PUBLIC RECORDS OF PINELLAS
COUNTY, FLORIDA.
Development Agreement
Page 98
ADOPTED
1'~~AtJ.17FINAl-doc
EXHIBIT N
Development Agreement
Page 99
ADOPTED
F~"'~AG117 FlNAL..doc
EXHIBrT N
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Development Agreement
Page 100
ADOPTED
F~~Agl17F'*Ldoc
EXHIBIT N-1
Development Agreement
Page 101
ADOPTED
F~~AQl17FlNAL.doc
EXHIBIT N-1
BOAT DOCK AGREEMENT
AGREEMENT
WHEREAS, the City of Clearwater and Developer have entered into a Development
Agreement for Property in the City of Clearwater of even effective date (the "Development
Agreement");
WHEREAS, Section 5.03.10 of the Development Agreement provides for the City and
Developer to enter into an agreement providing for the construction of shared boat docking facilities
("Boat Dock Facilities") within a boat basin ("Boat Basin') adjoining City owned real property ("City
Property"), which Boat Basin and Boat Docking Facilities are conceptually depicted on the attached
Exhibit "A";
WHEREAS, the construction and use of the Boat Docking Facilities will further the objectives
of the City and facilitate the development by Developer of the mixed use resort Project, as provided
in the Development Agreement;
WHEREAS, at a duly called public meeting on ,200-, the City Council
approved this Agreement, and authorized and directed its execution by the appropriate officials of
the City; and
WHEREAS, the members of Developer have approved this Agreement and have authorized
the undersigned individual to execute this Agreement on its behalf.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties hereby agree as follows:
ARTICLE 1. DEFINITIONS.
1.01. Definitions. The capitalized terms used in this Agreement that are not defined shall have
the meanings given to such terms in the Development Agreement.
1.02. Use of Words and Phrases. Words of the masculine gender shall be deemed and
construed to include correlative words of the feminine and neuter genders. Unless the
context shall otherwise indicate, the singular shall include the plural as well as the singular
number, and the word "person" shall include corporations and associations, limited liability
corporations and partnerships, including public bodies, as well as natural persons. "Herein,"
"hereby," "hereunder," "hereof," "hereinbefore," "hereinafter" and other equivalent words
refer to this Agreement and not solely to the particular portion thereof in which any such
word is used.
Development Agreement
Page 102
ADOPTED
F~~1917FINAl-doc
1.03. Florida Statutes. All references herein to Florida Statutes are to Florida Statutes (2004), as
amended from time to time.
ARTICLE 2. PURPOSE AND DESCRIPTION OF BOAT DOCKING FAICLlTIES.
2.01. Finding of Public Purpose and Benefit The proposed Boat Docking Facilities, including
the design, construction, completion and use of the Boat Docking Facilities, is hereby found
by the parties hereto: (1) to be consistent with and in furtherance of the objectives of the
Comprehensive Plan of the City of Clearwater, (2) to conform to the provisions of Florida
law, (3) to be in the best interests of the citizens of the City, (4) to further the purposes and
objectives of the City, (5) to further the public interest on Clearwater Beach, and (6) to
implement Beach by Design, including the creation of the new quality hotel resort to be
constructed as a part of the Project.
2.02. Purpose of Agreement The purpose of this Agreement is to further the implementation
of Beach by Design by providing for the development of the Boat Docking Facilities, all to
enhance the quality of life, increase employment and improve the aesthetic and useful
enjoyment of Clearwater Beach and the City, all in accordance with and in furtherance of the
Comprehensive Plan of the City of Clearwater and as authorized by and in accordance with
the provisions of Florida law.
2.03. Scope of the Project
1. The Boat Docking Facilities are contemplsed to include a central pier, finger piers
and associated pilings as conceptually depicted on the attached Exhibit "A", which
will accommodate a maximum of 57 boat slips ("Boat Slips"). The Developer and its
designated successors and assigns shall have the right to utilize exclusively sixty-
seven percent (67%) of the Boat Slips so long as the Boat Docking Facilities
continue to exist ("Developer Slips"). The City shall have the right to control the use
of all remaining Boat Slips ("City Slips"). The City shall have the right to utilize the
City Slips for day docking or for any other purpose permitted by the SSLL (hereafter
defined).
2. The Developer shall have the right to install a gate or other access/security
improvements on the central pier at the location on the pier that the Developer Slips
begin.
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. Utilities shall not be provided by Developer to the City Slips.
4. Developer shall pay for all maintenance and repair costs for the Boat Slip Facilities,
including costs relating to the City Slips.
5. Developer agrees that use of the Developer Boat Slips shall be limited to owners,
tenants and guests of the Project and any sublease or assignment by Developer of
rights to utilize Developer Boat Slips shall be limited to Project owners.
6. During the term of this Agreement, Developer shall provide a shuttle service to the
Boat Docking Facilities from the Project.
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2.04. Cooperation of the Parties. The City and the Developer recognize that the successful
development of the Boat Docking Facilities and each component thereof is dependent upon
the continued cooperation of the City and the Developer, and each agrees that it shall act in a
reasonable manner hereunder, provide the other party with complete and updated information
from time to time, with respect to the conditions such party is responsible for satisfying
hereunder and make its good faith reasonable efforts to ensure that such cooperation is
continuous, the purposes of this Agreement are carried out to the full extent contemplated
hereby and the Boat Docking Facilities are designed, constructed, completed and used as
provided herein.
ARTICLE 3. REGULATORY PROCESS.
3.01 Development Approvals and Permits.
1. Applications for Develooment Aooroval. The Developer shall prepare and submit to
the appropriate governmental authorities, including the City, applications for approval
of the State of Florida Sovereignty Submerged Lands Lease ("SSLL "), all required
permits ("Permits"), and all plans and specifications ("Plans and Specifications")
necessary for the Boat Docking Facilities, and shall bear all costs of preparing such
applications, applying for and obtaining such approvals and permits, including
payment of any and all applicable application, inspection, and regulatory fees or
charges. The City shall, to the extent possible, expedite review of all applications.
The failure of this Agreement to address a particular permit, condition, or term of
restriction shall not relieve the Developer of the necessity of complying with the law
governing said permitting requirements, conditions, terms or restrictions.
2. City Coooeration and Assistance. The City shall cooperate with the Developer in
obtaining the SSLL and all necessary Permits required for the construction,
completion and use of the Boat Docking Facilities. If requested by the Developer and
authorized by law. the City will join file or in the filing of any application for the SSLL
or any Permit, or, alternatively, recommend to and urge any governmental authority
that such SSLL or 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 approvalsby 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.
3.02. Concurrency.
1. Concurrency Required. The parties hereto recognize and acknowledge that Florida
law (specifically, Part II, Chapter 163. Florida Statutes, and Rule 9J-5, Florida
Administrative Code, collectively the "Growth Management Act") imposes restrictions
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on development if adequate public improvements are not available concurrently with
that development to absorb and handle the demand on public services caused by
development. The City has created and implemented a system for monitoring the
effects of development on public services within the City. The Developer recognizes
and acknowledges it must satisfy the concurrency requirements of Florida law and
the City's regulations as applied to the Boat Docking Facilities.
2. Reservation of Capacity. The City hereby agrees and acknowledges that as of the
Effective Date of this Agreement, the Boat Docking Facilities satisfy the concurrency
requirements of Florida law. The City agrees to reserve the required capacity to
serve the Boat Docking Facilities for the Developer and to maintain such capacity for
a period of three (3) years from the Effective Date of this Agreement and that such
period shall be automatically extended for an additional three (3) years if the
Developer commences construction within the initial three (3) year period. The City
recognizes and acknowledges that the Developer will rely upon such reservation in
proceeding with the Boat Docking Facilities.
3. ReQuired Public Facilities. In addition to the obligations of the City and the
Developer set out in Article 5 of this Agreement, the Water Utilities Department of the
. City will provide potable water service to the Boat Docking Facilities.
ARTICLE.4. PLANS AND SPECIFICATIONS.
4.01. Plans and Specifications.
1. Resoonsibility for Preparation of Plans and Soecifications. The Developer shall be
solely responsible for and shall pay the cost of preparing, submitting and obtaining
approval of the Plans and Specifications for the Boat Docking Facilities.
2. Use of Qualified Professionals. The Developer shall retain qualified professionals to
prepare the Plans and Specifications and shall cause such professionals to prepare
the Plans and Specifications.
ARTICLE 5. DEVELOPMENT OF BOAT DOCKING FACILITIES
5.01. Ownership of City Property. The City is the owner the City Property which is more
particularly described in Exhibit lOB" to this Agreement and has the littoral (riparian) rights
required to apply for the SSLL.
5.02. Boat Basin. The Boat Basin in which the Boat Docking Facilities are to be constructed
adjoins the City Property, is located on State of Florida sovereignty submerged lands, and is
depicted on the attached Exhibit lOB".
5.03. Obligations of the City.
1. SSLL. The Developer shall, at its expense, cause to be prepared the application for
the SSLL. The City shall execute and file with the State of Florida such application.
The City shall cooperate with the Developer with required processing of the
application for the SSLL and upon approval, shall execute and deliver the SSLL to
the State of Florida. So long as this Agreement remains in effect, the City shall assist
Developer and timely apply for renewals of the SSLL. Developer shall pay all lease
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and other payments due the State of Florida pursuant to the SSLL, including all
payments due for renewal terms.
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, he permit approval process.
3. Imorovements. The Developer, at its expense, shall construct all improvements
constituting the Boat Docking Facilities.
4. Timely Completion. The City recognizes the public importance of the timely
completion of the proposed improvements, and time is deemed to be of the essence.
The City considers this Agreement as overall authority for the Developer to proceed
to permit, and agrees to implement a fast-track review, permitting, and inspection
program for the Boat Docking Facilities.
ARTICLE 6. PROJECT FINANCING.
6.01. Assignment of Rights Under Agreement To Project Lender. Developer may assign to
the Project Lender all its right, title and interest under this Agreement as security for any
indebtedness of Developer. The execution of any assignment, security agreement, or other
instrument, or the foreclosure of the instruction or any sale under the instrument, either by
judicial proceedings or by virtue of any power reserved in the mortgage or deed of trust, or
conveyance in lieu of foreclosure by Developer to the holder of such indebtedness, or the
existence of any right, power, or privilege reserved in any instrument, shall not be held as a
violation of any of the terms or conditions of this Agreement, or as an assumption by the
holder of such indebtedness personally of the obligations of this Agreement. No such
assignment, foreclosure, conveyance or exercise of right shall relieve Developer from its
liability under this Agreement.
6.02. Cooperation. The City and the Developer shall cooperate as to reasonable requests for
assurances any proposed Project Lender for the purpose of implementing the mortgagee
protection provisions contained in this Agreement and allowing the Project Lender
reasonable means to protect or preserve the liens of such Project Lender upon the
occurrence of a default under the terms of this Agreement.
ARTICLE 7. CONSTRUCTION OF PROJECT.
7.01. Site. The Developer shall be responsible for all site investigation and environmental testing.
7.02. Construction of Boat Docking Facilities.
1.
a.
Commencement Developer shall construct the Boat Docking Facilities
substantially in accordance with the Plans and Specifications therefor.
Developer shall commence construction of the Boat Docking Facilities
("Commencement Date") on or before one (1) year after receipt of the SSLL
and all Permits, and expiration or resolution of all appeal/challenges thereto
("ApproYal Effective Date").
b. For purposes of this Section 7.02, "commence construction" means
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commencement of meaningful physical development of the Boat Docking
Facilities as authorized by the Permits therefor which is continued and
diligently prosecuted toward completion of the Boat Docking Facilities.
c. All obligations of Developer (including deadlines in the Commencement
Date) with respect to commencement and continuation of construction shall
be subject to delays and extensions from time to time for Unavoidable Delay
(see Article 15). Developer shall not be deemed to be in default of this
Agreement to the extent construction of the Boat Docking Facilities, or a part
thereof, is not complete by reason of Unavoidable Delay.
2. Pursuit of Construction. After the Commencement Date, Developer shall continue,
pursue and prosecute the construction of the Boat Docking Facilities with due
diligence to completion, and shall not at any time actually or effectively have
abandoned (or its Contractor having actually or effectively abandoned) the Boat
Docking Facilities. For purposes of this subsection 7.02.2, "abandoned" means to
have ceased any construction work which effectively advances the construction of
the Boat Docking Facilities toward completion, including removing all or substantially
all of the construction work force from the site of the Boat Docking Facilities for a
period of not less than sixty (60) days.
3. Maintenance of Construction Site. During the construction of the Boat Docking
Facilities, Developer shall, at its own expense, keep the Boat Docking Facilities and
all adjoining City Property in reasonably good order and condition.
4. Construction Comoletion. Developer agrees to complete the Boat Docking Facilities
on or before one (1) year after the Commencement Date.
7.03. City Not in Privity. The City shall not be deemed to be in privity of contract with any
Contractor or provider of services with respect to the construction of any part of the Boat
Docking Facilities not constituting all or any part of public improvements.
7.04. Construction Sequencing and Staging Area. The Developer shall construct the Boat
Docking Facilities in a manner and fashion which will minimize the inconvenience of the
construction on the property owners of Clearwater Beach and the residents of the City and
the use of the City Property. The City agrees to allow Developer to use portions of the City
Property as designated by the City for construction staging during construction of the Boat
Docking Facilities, without charge to the Developer, provided that such staging area does
not unreasonably affect the continued use of the City Property as provided for in this
Paragraph.
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
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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, asthe
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 proYisions ofSection
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:
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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 he 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 proce$ 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.
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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 ofthe transactions contemplated hereunder or
the financial condition of the Developer.
5. The Developer has filed or caused to be filed all federal, state, local and foreign tax
returns, if any, which were required to be filed by the Developer and has paid, or
caused to be paid, all taxes shown to be due and payable on such returns or on any
assessments levied against the Developer. .
6. All documentation, including that pertaining to the Boat Docking Facilities or the
Developer, delivered by the Developer to the City was, on the date of delivery
thereof, true and correct.
7. The principal place of business and principal executive offices of the Developer is in
St. Petersburg, Florida, and the Developer will keep records concerning the Boat
Docking Facilities (such as construction contracts, financing documents and
corporate documents) and all contracts, licenses and similar rights relating thereto at
an office in Pinellas County.
8. As of the Effective Date, the Developer will have the financial capability to carry out
its obligations and responsibilities in connection with the development of the Boat
Docking Facilities as contemplated by this Agreement.
9. The Developer has the experience, expertise, and capability to develop, cause the
construction, and complete the Boat Docking Facilities and, oversee and manage
the design, planning, construction, completion and use of the Boat Docking
Facilities.
9.02. Covenants. The Developer covenants with the City that until the earlier of the Termination
Date or the Expiration Date:
1. The Developer shall timely perform or cause to be performed all of the obligations
contained herein which are the responsibility of the Developerto 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 tobe 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 appicable 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 develop, construct and complete the Boat Docking Facilities and shall promptly
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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 develop, construct
and complete the Boat Docking Facilities as contemplated hereby.
5. The Developer shall promptly cause to be filed when due all federal, state, local and
foreign tax returns required to be filed by it, and shall promptly pay when due any tax
required thereby.
6. Subject to Section 18.01, the Developer shall maintain its existence, will not dissolve
or substantially dissolve all of its assets and will not consolidate with or merge into
another corporation, limited partnership, or other entity or permit one or more other
corporations or other entity to consolidate with or merge into it without the prior
approval of the City unless the Developer or an entity under common control with
Developer, retains a controlling interest in the consolidated or merged entity, and will
promptly notify the City of any changes to the existence or form of the entity or any
change in the control of the Developer.
7. Other than sales and assignments contemplated by this Agreement, the Developer
shall not sell, lease, transfer or otherwise dispose of all or substantially all its assets
without adequate consideration and will otherwise take no action which shall have
the effect, singularly or in the aggregate, of rendering the Developer unable to
continue to observe and perform the covenants, agreements, and conditions hereof
and the performance of all other obligations required by this Agreement.
8. The Developer shall not permit, commit, or suffer any waste of the City Property or
the Boat Docking Facilities.
9. Provided all conditions precedent thereto have been satisfied or waived as provided
herein, the Developer shall design, construct and complete the Boat Docking
Facilities such that it is substantially complete as provided in this Agreement no later
than the Completion Date.
ARTICLE 1 O. 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 authaity 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 haye 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,
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regulation or order applicable to or binding on the City, (Hi) contravenes or results in
any breach of, or default under or, other than as contemplated by this Agreement,
results in the creation of any lien or encumbrance upon any property of the City
under any indenture, mortgage, deed of trust, bank loan or credit agreement,
applicable ordinances, resolutions or, on the date of this Agreement, any other
agreement or instrument to which the City is a party, specifically including any
covenants of any bonds, notes, or other forms of indebtedness of the City
outstanding on the Effective Date.
3. This Agreement and, to the extent such documents presently exist in a form
accepted by the City and the Developer, each document contemplated or required
by this Agreement to which the City is or will be a party constitute, or when entered
into will constitute, legal, valid and binding obligations of the City enforceable against
the City in accordance with the terms thereof, except as such enforceability may be
limited by public policy or applicable bankruptcy, insolvency or similar laws from time
to time in effect which affect creditors' rights generally and subject to usual equitable
principles in the event that equitable remedies are involved.
10.02. Covenants. The City covenants with the Developer that until the earlier of the Termination
Date or the Expiration Date:
1. The City shall timely perform, or cause to be performed, all of the obligations
contained herein which are the responsibility of the City to perform.
2. During each year that this Agreement and the obligations of the City under this
Agreement shall be in effect, the City shall cause to be executed and to continue to
be in effect those instruments, documents, certificates, permits, licenses and
approvals, and shall cause to occur those events contemplated by this Agreement
that are applicable to and are the responsibility of the City.
3. The City shall assist and cooperate with the Developer to accomplish the
development of the Boat Docking Facilities in accordance with this Agreement and
the Plans and Specifications, will carry out its duties and responsibilities
contemplated by this Agreement, and will not violate any laws, ordinances, rules,
regulations, orders, contracts, or agreements that areor will be applicable thereto,
and, to the extent permitted by law, the City will not enact or adopt or urge or
encourage the adoption of any ordinances, resolutions, rules regulations or orders or
approve or enter into any contracts or agreements, including issuing any bonds,
notes, or other forms of indebtedness, that will result in any provision of this
Agreement to be in violation thereof.
4. The City shall not permit, commit, or suffer any waste or impairment to the Boat
Docking Facilities, nor shall the City alter the City Property, or any part thereof, so as
to prevent or adversely affect the development and use of the Boat Docking
Facilities.
ARTICLE 11. CONDITIONS PRECEDENT.
11.01. Developer Obligations. Unless this Agreement has been terminated pursuant to Article 12
hereof, the obligation of the Developer to construct the Boat Docking Facilities is subject to
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the fulfillment to the satisfaction of, or waiver in writing by, the Developer of each of the
following conditions precedent:
1. All conditions precedent under Article 11 of the Development Agreement have been
satisfied or waived by Developer.
2. The Plans and Specifications required to commence construction of the Boat
Docking Facilities shall have been approved by the City in aCCordance with
applicable ordinances, land use regulations, building codes and other regulations of
the City.
3. The City shall have obtained the SSLL as provided in Article 6 heeof.
4. All Permits necessary for construction of the Boat Docking Facilities to commence
shall have been issued and have become final and non-appealable. .
11.02. Responsibilities of the Parties for Conditions Precedent. The parties hereto shall not,
individually or collectively, knowingly, intentionally or negligently prevent any condition
precedent from occurring; provided, however, nothing in this Section is intended or shall be
deemed to deny any party the right to reasonably exercise its discretion to the extent
permitted by law or this Agreement.
ARTICLE 12. DEFAULT; TERMINATION.
12.01. Project Default by the Developer.
1. There shall be an "event of default" by the Developer under this Agreement upon the
occurrence of anyone or more of the folbwing:
a. The Deyeloper 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
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2.
any of such entity's properties, such appointment shall not have been
vacated; or
a.
If an event of default by the Developer described in subsection 1 above shall
occur, the City shall provide written notice thereof to the Developer, and, if
such event of default shall not be cured by the Developer within thirty (30)
days after receipt of the written notice from the City specifying in reasonable
detail the event of default by the Developer, or if such event of default is of
such nature that it cannot be completely cured within such time period, then
if the Developer shall not have commenced to cure such default within such
thirty (30) day period and shall not diligently prosecute such cure to
completion within such reasonable longer period of time as may be
necessary (provided, however, if the Developer is proceeding diligently and
in good faith, the curative period shall be extended for a period of not.
exceeding six (6) months without any approval or consent of the City being
required, but such approval will be required if the curative period is to be
extended beyond six (6) months) then, in addition to any remedy available
under Section 12.05, the City may terminate this Agreementor 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 IE 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 defaulting the Developershall vacate the Parcel(s).
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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 thir~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 eyent 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 oftime, provided, however, ifthe 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 waiyer of the Developer's right to pursue any other remedy to
which it might be entitled.
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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 deemm 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 ofthis 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 Prior to Commencement of Project.
1. The Developer and the City acknowledge and agree that as of the Effective Date
certain matters mutually agreed by the parties hereto to be essential to the
successful development of the Boat Docking Facilities have not been satisfied or are
subject to certain conditions, legal requirements or approvals beyond the control of
any of the parties hereto or which cannot be definitely resolyed under this
Agreement, including, but not limited to, failure of a governmental authority to grant
an approval required for development of the Boat Docking Facilities. In recognition
of these events or conditions, the parties hereto mutually agree that, provided the
appropriate or responsible party therefor diligently and in good faith seeks to the
fullest extent of its capabilities to cause such event or condition to occur or be
satisfied, the failure of the events or conditions listed in subsection 2. below to occur
or be satisfied shall not constitute an event of default by any party under this Article
12, but may, upon the election of any party hereto, be the basis for a termination of
this Agreement in accordance with this Section.
2. In addition to any other rights of termination provided elsewhere in this Agreement,
prior to commencement of the Boat Docking Facilities, this Agreement may be
terminated as provided in subsection 3. of this section by the City or the Developer
after the occurrence of any of the following events or conditions (except for
subsection b. , in which event only the Developer may terminate this Agreement
pursuant to this subsection 2.):
a. The appropriate governmental authority (including the City in exercise of its
governmental and regulatory authority and responsibility), upon petition by
the Developer denies or fails to: enter into the SSLL, issue the Permits, or
issue any other approval necessary to commence construction of the Boat
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Docking Facilities, provided the Developer has proceeded diligently,
expeditiously and in good faith to obtain such SSLL, Permits or other
necessary actions;
b. A previously unknown site condition is subsequently discovered and that
condition prevents successful development of the Boat Docking Facilities
3. Upon the occurrence of an event described in subsection 2. or in the event that the
Developer or the City, after diligently and in good faith to the fullest extent its
capabilities, is unable to cause a condition precedent to its respective obligations to
occur or be satisfied, then the Developer or the City may elect to terminate this
Agreement by giving a notice to the other party hereto within thirty (30) days of the
occurrence of such event or the determination of inability to cause a condition
precedent to occur or be satisfied, stating its election to terminate this Agreement as
a result thereof, in which case this Agreement shall then terminate.
4. In the event of a termination pursuant to this Section 12.05, neither the Developer
nor the City shall be obligated or liable one to the other in any way, financially or
otherwise, for any claim or matter arising from or as a result of this Agreement or any
actions taken by the Developer and the City, or any of them,' hereunder or
contemplated hereby, and each party shall be responsible for its own costs,
however, the provisions of Sections 9.01 and 10.01 shall apply and shall survive
termination of this Agreement, the provisions of this Subsection 12.05.4 to the
contrary notwithstanding.
12.06. Termination Certificate.
1. In the event of a termination of this Agreement for any reason prior to the Expiration
Date, each of the parties hereto do covenant and agree with each other to promptly
execute a certificate prepared by the party electing to terminate this Agreement,
which certificate shall expressly state that this Agreement has been terminated in
accordance with its terms, is no longer of any force and effect except for those
provisions hereof which expressly survive termination, that the rights, duties and
obligations of the parties hereto have been terminated and released (subject to
those surviving provisions hereof) and that the Boat Basin is no longer subject to any
restrictions, limitations or encumbrances imposed by this Agreement.
2. The certificate described in Subsection 1. shall be prepared in a form suitable for
recording and promptly after execution by all of the parties hereto shall be recorded
in the public records of Pinellas County, Florida.
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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 fromthe use or
operation of any or all of the above, any other payment specifically identified in this
Agreement, or compliance with any law, rule, regulation, or other such legal requirement.
13.02. Conditions. The right to contest any charge, payment or requirement pursuant to Section
13.01 is subject to the following:
1. Such proceeding shall suspend the execution or enforcement of such charge,
payment or requirement;
2. Such proceeding will not create any risk of impairment of the construction,
completion, operation or use of the Boat Docking Facilities or any part thereof, in any
material respect, and no portion of the Boat Docking Facilities would be subject to
any risk of being involuntarily sold, forfeited or lost or the construction, equipping, or
completion of the Boat Docking Facilities or any part thereof be delayed or
prohibited;
3. Such proceeding will not subject any other party to criminal liability or risk of material
civil liability for failure to comply therewith, or involve risk of any material claim
against such party; and
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.
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1.
a.
Unless accelerated arbitration as provided in Section 14.08 hereof is
inyoked, 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 recogni2ed 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 arbitratorwithin 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
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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 coyenants 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
ofthis 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)
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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 partiesmutually
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
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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. RESTRICTIONS ON USE.
16.01. Project. Prior to the earlier of the Termination Date or the Expiration Date, no use of the
Boat Docking Facilities, other than as described in Section 2.03, shall be permitted, unless
and until the Developer or the person, if other than the Developer, intending to so use the
Boat Docking Facilities, shall file with the City a request for a release from the restriction
imposed by this Section. The Governing Body of the City shall promptly consider such
request and either deny the request, approve the request as filed, or approve the request
subject to such terms, conditions and limitations as the City may reasonably require. Unless
specifically requested and approved, a release of the restriction imposed by this Section
shall not release the Developer from any obligations or restrictions imposed by this
Agreement or any agreement, instrument or document contemplated hereby.
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 SSLL or 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 reYiew the Plans and Specifications for such reconstruction or repairs
as soon as possible after filing thereof by the Developer. The City agrees to approve
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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, SSLL a.nd
the Permits.
17.02. Partial Loss or Damage to Project. Until the Terminate 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. When eyer the Boat Docking Facilities, or any part thereof, shall have been damaged
or destroyed, the Deyeloper 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.
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 tte taking, and, if not, can be retained by the Developer.
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ARTICLE 18. MISCELLANEOUS
18.01. Assignments.
1. By the Develooer.
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 assignmentto 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 Iiabilitycompany,
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 less than thirty (30) days prior to such assignment
being effective and the assignee shall be bound by the terms of this
Agreement to the same extent as would the Developer in the absence of
such assignment.
d. No assignee, purchaser, sublessee or acquirer of all or any part of the
Developer's rights and obligations with respect to any portion of the Boat
Docking Facilities shall in any way be obligated or responsible for any of the
Developer's obligations by virtue of this Agreement unless and until such
assignee, purchaser, sublessee or acquirer has expressly assumed the
Developer's obligations.
e. 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 within the Project 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.
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18.03. Notices.
1. All notices, demands, requests for approvals or other communications given by
either party to another shall be in writing, and shall be sent by registered or certified
mail, postage prepaid, return receipt requested or by courier service, or by hand
delivery to the office for each party indicated below and addressed as follows:
To the Developer:
To the City:
CBR Development I, LLC
2201 - 4th Street North
Suite 200
St. Petersburg, FL 33704
Attn: J. Michael Cheezem
City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
with copies to:
with copies to:
E.D. (Ed) Armstrong, '"
P.O. Box 1368
Clearwater, FL 33757
Pam Akin, Esquire
Clearwater City Attorney
112 S. Osceola Avenue
Clearwater, FL 33756
and
Greene & Schermer
1301 - 6th Avenue West
Suite 400
Bradenton, FL 34205
Attn: Robert F. Greene, Esquire
2. . Notices given by courier service or by hand delivery shall be effective upon delivery
and notices given by mail shall be effective upon receipt. Refusal by any person to
accept delivery of any notice delivered to the office at the address indicated above
(or as it may be changed) shall be deemed to have been an effective delivery as
provided in this Section 18.03. The addresses to which notices are to be sent may
be changed from time to time by written notice 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.
Development Agreement
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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.
Development Agreement
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ADOPTED
F~~1917FlNAl..doc
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 Saturdayor 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 Developerhereunder 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 exelCise 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
Development Agreement
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ADOPTED
F~~1917FINAl-doc
Agreement, the parties agree that amendments to this Agreement required due to such
inaccuracies, unforeseen events or circumstances which do not change the substance of
this Agreement may be made and incorporated herein. The City Manager is authorized to
approve such technical amendments on behalf of the City, respectively, and is authorized to
execute any required instruments, to make and incorporate such amendment to this
Agreement or any Exhibit attached hereto or any other agreement contemplated hereby.
18.18. Term; Expiration; Certificate.
1. If not earlier terminated as provided in Section 12.05, this Agreement shall expire
and no longer be of any force and effect on the fifth (sth) anniversary of the Effective
Date. Notwithstanding the foregoing, provided the SSLL remains in effect and no
default by Developer under this Agreement then exists, the Developer shall have the
option to renew this Agreementforfive (5) successive renewal terms oftive (5) years
each, and such renewal options shall be deemed automatically exercised unless
written notice from Developer of intent to not renew is received by the City prior to
the expiration of the tlen current term.
2. Upon completion of the term of this Agreement, all parties hereto shall execute the
Agreement Expiration Certificate. The Agreement Expiration Certificate shall
constitute (and it shall be so provided in the certificate) a conclusive determination of
satisfactory completion of all obligations hereunder and the expiration of this
Agreement.
3. 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.
4. The Agreement Expiration Certificate shall be in such form as will enable it to be
recorded in the public records of Pine lias 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 Pine lias 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
bylaw.
18.21. Effective Date. The Effective Date shall be the date of the last signature to this Agreement.
Development Agreement
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ADOPTED
F~ 0......,....19 17 FINAI..doc .
IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals
affixed as of this _ day of , 200_.
THE CITY OF CLEARWATER, FLORIDA
Attest:
By:
City Clerk
By:
Mayor
Approved as to form and correctness:
City Attorney
, Esquire
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day of I
200_, by . and , Mayor and City Clerk,
respectively, for the City of Clearwater, Florida, on behalf of the City, who is 0 personally known to
me or 0 has produced a Florida driver's license or 0 as
identification.
NOTARY PUBLIC
Printed Name:
Commission No.
My Commission expires:
Development Agreement
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. STATE OF FLORIDA
COUNTY OF PINElLAS
CBR DEVELOPMENT I, LLC,
a Florida limited liability company
By: CBR Communities I, Ltd.,
a Florida limited partnership
Managing Member
By: JMC Communities of Clearwater V, Inc.
a Florida corporation, General Partner
By:
Name: J. Michael Cheezem
Title: CEO
The foregoing instrument was acknowledged before me this _ day of ,
200_, J. Michael Cheezem, as CEO of JMC Communities of Clearwater V, Inc., a Florida
corporation, the General Partner of CBR Communities I, Ltd., a Florida limited partnership, the
Managing Member of CBR Development I, LLC, a Florida limited liability company, who is 0
personally known to me or. 0 has produced a Florida driver's license or 0
as identification.
Development Agreement
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ADOPTED
NOTARY PUBLIC
Printed Name:
Commission No.
My Commission expires:
F~otICly ~Agl17 FlNAL.doc
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Development Agreement
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EXHIBIT liB"
CITY PROPERTY
LEGAL DESCRIPTION
Parcel No. OS/29/15/00000/330/0100
Development Agreement
Page 132
ADOPTED
F~~I917FlNAL.doc
~i.'LEAR WATER
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by
JMC Communities
September 29, 2004
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Sand pearl
Resort, Residences, Spa & Beach Club
The name Sand pearl suggests white sands
and the experience of finding a treasure on
the beach. Sandpearl perfectly expresses
ucasual elegance" and reflects luxury I
quality and the influence nature will have at
the resort.
-,
"Welcome to the Sand pearl Resort on
Clearwater I)each..."
"The Sand pearl Residences on
Clearwater I)each offer all the
---.!.
"Over the ages and throughout numerous
cultures, pearls have captured the imagination
of kings, poets, movie stars, scientists and all
admirers of the beauty and variety of the natural
world. "
Ellen V. Futter, President of the American Museum of Natural History
"Pearls tells a fascinating story ... Unlike other
gems, pearls are produced by living animals,
and they are fully formed and complete when
found. "
Neil H. Landman, Curator, Division of Paleontology, American Museum
of Natural History
The pearl is loved and valued as a symbol of purity, happiness and luck the world
over. High quality pearls are becoming yet more rare and valuable, and the
demand for pearls of truly high quality is increasing.
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TABLE OF CONTENTS
PROPOSED REDEVELOPMENT
IN Tl-IE
CITY OF CLEARWATER
by
JMC Communities
September 29,2004
I. REDEVELOPMENT AREA
A. Area Location Map
B. Site Location Map
II. PROGRAM
A. Overview of Proposed Redevelopment
B. Landscape Site Plan
C. Mandalay A venue Elevation
D. Beachside Rendering
III. REDEVELOPMENT PARCELS
A. Phase Map
B. Controlled Acreage
C. Allowable Density
IV. DEVELOPMENT AGREEMENT
V. PROOF OF OWNERSHIP
VI. TRAFFIC IMPACT STUDY
VII. PARKING DEMAND STUDY
VIII. DEVELOPER 's QUALIFICATIONS
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AREA LOCATION MAp
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SITE LOCATION MAP
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PROGRAM
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OVERVIEW OF PRoPOSED REDEVELOPMENT
Developer proposes to redevelop the Project Site with a resort development to include related
amenities, pedestrian walkways, streets, parking and infrastructure improvements. The
Project shall include a nine-story resort hotel with not less than 240 rooms and not more than
260 rooms (the Hotel Phase): a fifteen-story condominium, and a four-story condominium
with a combined total of not more than 120 dwelling units: and not more than 11,000 square
feet of on-grade retail (the Residential Tower Phase and the Residential/ Retail Phase).
The Hotel Phase will include approximately 50 for sale condominium-hotel suites located on
the top two floors, which are included in the overall room count as described above. The
Hotel Phase will also include a minimum of 10,000 square feet of meeting space, as well as
over 11,000 square feet for Spa, Health Club, and Beach Club. In addition, the Hotel Phase
will include a full service restaurant, lounge, two swimming pools, pool grill, and other
amenities associated with a beachfront resort. The building height for the Hotel Phase will
not exceed 100 feet.
The Residential Tower and ResidentiaV Retail Phases include one fifteen-story building with
a height not to exceed 150 feet, and one four-story building with a height not to exceed 50
feet. The retail will be located on the ground level of the four-story building. These Phases
will not exceed 120 dwelling units and 11,000 square feet of retail space.
As provided for in this Agreement, Developer, and/or its affiliates, will carry out the
redevelopment of the Project Site by purchasing all of the land within the Project Site, pre-
paring project plans and specifications, obtaining approvals by governmental authorities
necessary for development of the Project, constructing various private improvements on the
Project Site, and developing the Project as a unified and integrated project.
09/29/04
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REDEVELOPMENT
PARCELS
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BEACH
PHASE MAP
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CONTROLLED ACREAGE
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DEVELOPER CONTROLLED PROPERTY:
HOTEL PARCEL: 3.6 ACRES MOL
BEACH: 3.8 ACRES MOL
RESIDENTIAL & RETAIL PARCELS: 2.4 ACRES MOL
TOTAL: 9.8 ACRES MOL
NOTE: BEACH ORNE VAATlON ACCOUNTS FOR 4 PER CENT
- ( .4 ACRES ) OF CONTROLLED PROERlY
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ALLOWABLE DENSllY
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ALLOWABLE DENSITY
HOTEL PARCEL: 137 HOTEL UNITS PER TERMINATION OF NON-CONFORMING STATUS IrS TO DENSITY
RESIDENTIAL & RETAIL PARCELS: 120 DWElliNG UNITS ALLOWED
2.4 ACRES x 30 DWEWNG UNITS/ACRE -
/72 DWEWNG UNITS + AN ADDmONAL
\j8. '-48 DWEWNG UNITS PER ALLOCATION OF
GRAY SETTLEMENT AGREEMENT
.HQIE:. THE "GRAY SETTLEMENT" ALLOWED FOR A TOTAL OF 232 HOTEL ROOMS TO BE PROPORTIONALLY
ALlOCATED TO LOTS 6-28 OF THE CLEARWATER BEACH PARK SUBDMSION.
CONVERTED TO RESIDENTIAL DWEWNG UNITS AT THE 3:4 RATIO EQUATES TO 174 DWEWNG UNITS.
LOTS 14-28 (SOUTH OF SAN MARCO ST.) RECEIVED 112 DWELLING UNITS FOR "THE MANDALAY
BEACH CLUB" DEVELOPMENT, LEAVING 62 DWEWNG UNITS FOR LOTS 6-13 (NORTH OF SAN MARCO
ST.). THE 62 DWELLING UNITS EQUATES TO A NET INCREASE OF 48 DWELLING UNITS. 1
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DEVELOPMENT
AGREEMENT
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DEVELOPMENT AGREEMENT FOR
PROPERTY
IN THE
CITY OF CLEARWATER
between
THE CITY OF CLEARWATER, FLORIDA
and
CBR DEVELOPMENT I, LLC and
CBR DEVELOPMENT II, LLC
Dated as of , 2004
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TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS............................................. ....................... ... .................................. 2
Section 1.01 Definitions.............. ................... ........ .......................................................... 2
Section 1.02 Use of Words and Phrases............................... ............... ........................... 3
Section 1.03 Florida Statutes...... ..................................................................................... 3
ARTICLE 2. PURPOSEAND DESCRIPTION OF PROJECT..................................................... 4
Section 2.01 Finding of Public Purpose and Benefit .......................................................4
Section 2.02 Purpose of Agreement.................... ............................................................ 4
Section 2.03 Scope of the Project.... ................. .......................................................... ..... 4
Section 2.04 Cooperation of the Parties .......................................................................... 5
ARTICLE 3. REGULATORY PROCESS ............... .................. ................. ........... ....................... 6
Section 3.01 Land Development Regulations............................ ................... ................... 6
Section 3.02 Development Approvals and Permits ......................................................... 6
Section 3.03 Concurrency......... ..... ........ .......... ......................... ................ ....................... 7
ARTICLE 4. PLANS AND SPECIFICATIONS ............................................................................8
Section 4.01 Plans and Specifications............................................................................. 8
ARTICLE 5. PROJECT DEVELOPMENT................................................................................... 8
Section 5.01 Ownership of Project Site. .......................... ................................................ 8
Section 5.02 Project Site.................................................................................................. 8
Section 5.03 Obligations of the City ............................. .................................................... 8
Section 5.04 Obligations of the Developer .................................................................... 11
ARTICLE 6. PROJECT FINANCING ........................................................................................ 11
Section 6.01
Section 6.02
Section 6.03
Section 6.04
Section 6.05
Section 6.06
Section 6.07
Section 6.08
Section 6.09
Section 6.10
Section 6.11
Section 6.12
Development Agreement
Page ii
Notice of Project Financing to City............................................................ 11
Copy of Default Notice to City....... ............ ....... .......................... ............... 12
Intentionally Omitted....... ........................... ..... .................. ........................ 12
Assignment of Rights Under Agreement to Project Lender .....................12
Notice to Project Lender........................................................................... 12
Consent of Project Lender ........................................................................ 12
Estoppel Certificates ................................ ............................. .............. ...... 12
Cooperation.......... ..................................................................................... 12
Reinstatement by Project Lender............ .............. ................................... 13
New Agreement........................................................................................ 13
Transfer of New Agreement........................................ .............................. 13
Survival.................................................................... .................................. 13
F:~mc\hunter\City Oewlopment Agt. 7 .doc
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ARTICLE 7. CONSTRUCTION OF PROJECT ........................................................................ 14
Section 7.01 Project Site.......... .... ..................... ........................................... ...... ............ 14
Section 7.02 Construction of the Project ... ...... ........ .......... ...................... ..... ............... 14
Section 7.03 City not in Privity. .... ..... ... ........... ... .............. ............................................... 16
Section 7.04 Construction Sequencing and Staging Area ............................................ 16
ARTICLE 8. INDEMNIFiCATION..... ........ ........................... ..................................... ... .............. 17
Section 8.01 Indemnification by the Developer ............................................................. 17
Section 8.02 Indemnification by the City........ .... ... ....................................... ...... ..... ....... 17
Section 8.03 Limitation of Indemnification.. ...... ............................................................. 18
ARTICLE 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF
THE DEVELOPER.... ... ... ......... ........ ..... ............................. ................. ... ... ............ 18
Section 9.01 Representations and Warranties .... ........ ...... ..... ................. ............. ..... .... 18
Section 9.02 Covenants.. ...... .... ..... ................. ....................... ..................... .... ............... 19
ARTICLE 10. REPRESENTATIONS, WARRANTIES AND COVENANTS OF
THE CITY ... ............ ........... ..... ... ..... .......... ............................................................. 21
Section 10.01 Representations and Warranties ........ ....... ...... ..... .............. ..... ........ ......... 21
Section 10.02 Covenants.......... ... ............. ... ...... ......................... ................... ... ............... 21
ARTICLE 11. CONDITIONS PRECEDENT ................................................................................22
Section 11.01 The Developer Acquiring Project Site....................................................... 22
Section 11.02 Construction of Project........ ...... ................................................................ 23
Section 11.03 Responsibilities of the Parties for Conditions Precedent .........................23
ARTICLE 12. DEFAULT; TERMINATION .................................................................................23
Section 12.01 Project Default by the Developer ........... ...... ..................... ....... ................. 23
Section 12.02 Default by the City..................................................................................... 25
Section 12.03 Obligations, Rights and Remedies Cumulative ........................................26
Section 12.04 Non-Action on Failure to Observe Provisions of this
Agreement................................................................................................. 26
Section 12.05 Termination Prior to Commencement of Project ...................................... 26
Section 12.06 Termination Certificate.................. ............................................... ............. 27
ARTICLE 13. RIGHT TO CONTEST. ....... ................................................................................. 28
Section 13.01 Right to Contest .... .................................................................................... 28
Section 13.02 Conditions.................. ................. .............................................................. 28
Development Agreement
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ARTICLE 14. ARBITRATION.................................................................................................... 28
Section 14.01 Agreement to Arbitrate...... ........................................................................ 28
Section 14.02 Appointment of Arbitrators ........ ................................................................ 29
Section 14.03 General Procedures................. ................................................................. 29
Section 14.04 Majority Rule............................................................................................. 30
Section 14.05 Replacement of Arbitrator................................. ........................................ 30
Section 14.06 Decision of Arbitrators.............. ................................................................. 30
Section 14.07 Expense of Arbitration.............. ................................................................. 30
Section 14.08 Accelerated Arbitration............ .................................................................. 30
Section 14.09 Applicable Law.................... .... .................................................................. 31
Section 14.10 Arbitration Proceedings and Records ....................................................... 31
ARTICLE 15. UNAVOIDABLE DELAy.................. ................ ................................................... 32
Section 15.01 Unavoidable Delay.......... ... .... ....................... ............. ............... ..... ........... 32
ARTICLE 16. RESTRICTIONS ON USE.......... ....... ........... ...................................................... 32
'Section 16.01 Project.............................. ... ... .... .................. .......................... ... ................ 32
ARTICLE 17. FIRE OR OTHER CASUALTY; CONDEMNATION ........................................... 33
Section 17.01 Loss or Damage to Project. .... ............... .............. ..................................... 33
Section 17.02 Partial Loss or Damage to Project............................................................ 33
Section 17.03 Project Insurance Proceeds............... ....................................................... 33
Section 17.04 Notice of Loss or Damage to Project........................................................ 33
Section 17.05 Condemnation of Project or Project Site; Application
of Proceeds............................................................................................... 34
ARTICLE 18. MISCELLANEOUS ........ .......... .......................... ......................... ........................ 34
Section 18.01 Assignments.............................................................................................. 34
Section 18.02 Successors and Assigns................................................... ........................ 35
Section 18.03 Notices ............................................... ........ ............................................... 35
Section 18.04 Applicable Law and Construction ............................................................. 36
Section 18.05 Venue; Submission to Jurisdiction............................................................36
Section 18.06 Estoppel Certificates.................................... ............................................. 36
Section 18.07 Complete Agreement; Amendments ........................................................ 36
Section 18.08 Captions.................................................................................................... 37
Section 18.09 Holidays..................................................................................................... 37
Section 18.1 0 Exhibits............................................................................................ .......... 37
Section 18.11 No Brokers................................................................................................ 37
Section 18.12 Not an Agent of City............ ...................................................................... 37
Section 18.13 Memorandum of Development Agreement............................................... 37
Section 18.14 Public Purpose................................................................... ....................... 37
Section 18.15 No General Obligation ..............................................................................38
Section 18.16 Other Requirements of State Law ............................................................38
Development Agreement
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Section 18.17 Technical Amendments; Survey Corrections ...........................................38
Section 18.18 Term; Expiration; Certificate ..................................................................... 38
Section 18.19 Approvals Not Unreasonably Withheld..................................................... 38
Section 18.20 Effective Date.................................................................................. .......... 39
Development Agreement
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EXHIBITS
Legal Description of Controlled Property ............... ........................................... .... ........ .................. A
Project Description...... ..... ............................................................................................................... B
Minimum Quality Standard............................................ ............................................................... B-1
Beach Property Description .......................................... ..... .......................................................... B-2
Upland Property Description........................................................................................................ B-3
Project Site..................... ......... ... ............................................................... ...................................... C
Project Development Schedule ..... ... ... ....................... .................................................................... D
Covenant Regarding Trip Generation Management Program ....................................................... E
Covenant Regarding Hurricane Watch Closure... ...... ............... ..... ......... .............. ......................... F
List of Required Permits & Approvals. ....................... ... .................................................................. G
Mandalay Improvements. ............................................. .............................. ..................................... H
Streetscape/Landscape Improvements - Mandalay Right-of-Way.................. .................... .... ...H-1
Lift Station Improvements............................................................................................................ H-2
Lift Station Improvement Requirements...................................................................................... H-3
Baymont Improvements............................."......................................................................................1
--- ~-
Streetscape/Landscape Improvements - Baymont Right-of-Way............................................... 1-1
Ambler Improvements...................................................................................................................... J
San Marco Improvements.........................."........"................................................. ."......................... K
Amenity Improvements............................................."..................................................................... L
Covenant of Unified Use............................."........"..............................................................."..........M
Boat S lips........................................................................................................................................ N
Agreement - Boat Slips............................................................................................................... N-1
Development Agreement
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DEVELOPMENT AGREEMENT FOR
PROPERTY IN THE CITY OF CLEARWATER
This Development Agreement for Property in the City of Clearwater (the "Agreement") is
made as of this _ day of , 2004, by and between THE CITY OF
CLEARWATER, FLORIDA, a Florida municipal corporation (the "City") and CBR Development I,
LLC, a Florida limited liability company and CBR Development II, LLC, a Florida limited liability
company (collectively, the "Developer").
WITNESSETH:
WHEREAS, the City of Clearwater has embarked on a community revitalization effort for
Clearwater Beach;
WHEREAS, one of the major elements of the City's revitalization effort is a preliminary
design for the revitalization of Clearwater Beach entitled Beach by Design;
WHEREAS, the City has adopted Beach by Design pursuant to the Pinellas Planning
Council's Rules in support of the City's Comprehensive Plan;
WHEREAS, Beach by Design proposed a limited number of catalytic resort projects to
reposition and re-establish Clearwater Beach as a quality, family resort community and further
provides for a limited pool of additional hotel units to be made available for such projects;
WHEREAS, Developer has proposed to develop a mixed use project, including a quality
resort hotel, on certain property fronting on Mandalay Boulevard (the "Project Site");
WHEREAS, it is necessary that the City take certain actions in order to make it possible for
Developer to develop the Project Site in accordance with the goals and objectives of Beach by
Design;
WHEREAS, the City has conducted such hearings as are required by and in aCC-Qrdwge
with Chapter 163.3220 et seq. Fla. Stat. and applicable law;
WHEREAS, the City has determined that as of the Effective Date of this Agreement, the
proposed development is consistent with the City's Comprehensive Plan and Land Development
Regulations;
WHEREAS, at a duly called public meeting on , 2004, the City Council
approved this Agreement, and authorized and directed its execution by the appropriate officials of
the City; and
WHEREAS, the members of Developer have approved this Agreement and have authorized
the undersigned individual to execute this Agreement on its behalf.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties hereby agree as follows:
Development Agreement
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ARTICLE 1. DEFINITIONS.
1.01. Definitions. The terms defined in this Article 1 shall have the following meanings except
as herein otherwise expressly provided:
1. "Agreement" means this Agreement for Development of Property including any Exhibits and
any amendments thereto.
2. "Beach by Design" or "Plan" means the strategic redevelopment plan for Clearwater Beach
dated 2001 which was adopted by the City Council pursuant to the provisions of the Pinellas
County Planning Council's Rules for the designation of a Community Redevelopment
District, as amended by Ordinance 7294-04.
3. "City" means the City of Clearwater, Florida, a Florida municipal corporation.
4. "City Council" means the governing body of the City.
5. "Commencement Date" means the date on which Developer commences or causes a
Contractor to commence construction of a Phase of the Project (see Section 7.02.1.a.).
6. "Completion Date" means the date on which the last certificate of occupancy required for the
Project is issued.
7. "Construction Completion" means the date a Construction Completion Certificate is issued
for a Phase of the Project (see Section 7.04).
8. "Controlled Property" means those properties within the Project Site which are owned by
Developer or subject to a purchase contract in favor of the Developer or an affiliate or
nominee on the Effective Date of this Agreement (see Section 5.01) which are more
particularly described in the legal description set out in Exhibit 6. to this Agreement.
9. "Density Pool" means that hotel unity density pool created by the City pursuant to Beach By
Design.
10. "Developer" means, for the purposes of this Agreement, CBR Development I, LLC, and its
successors and assigns as provided in Article 18.
11. "Effective Date" means the date of approval and execution of this Agreement.
12. "Exhibits" means those agreements, diagrams, drawings, specifications, instruments, forms
of instruments, and other documents attached hereto and designated as exhibits to, and
incorporated in and made a part of, this Agreement.
13. "Hotel Phase" of development means the portion of the Project as depicted on Exhibit C,
including the quality resort hotel containing a minimum of two hundred forty (240) rooms
which may be undertaken, but shall not be required to be completed before other portions of
the Project are commenced.
14. "Meeting Space" means any building floor area which can be used in conjunction with
conference or meeting activities.
Development Agreement
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15. "Permits" means all land development approvals and consents required to be granted,
awarded, issued, or given by any governmental authority in order for construction of the
Project, or any part thereof, to commence, continue or be completed.
16. "Plans and Specifications" means, as to each part of the Project to be developed, the site
plan forthe Project to be developed, filed with the City as required by the Land Development
Regulations for the purpose of review and approval.
17. "Project" means, collectively, the development of a mixed use project including quality resort
hotel, beach club, residential condominium and commercial components (retail, restaurant,
office) proposed by the Developer as described in Section 2.03( 1) of this Agreement and the
Project Description which is attached hereto as Exhibit ~.
18. "Project Site" means the land area generally bounded on the east by the western edge of the
right-of-way of Mandalay Boulevard, on the north by the southern boundary of Lots 2-4 of
Millers Replat (PB 26, Pg 17) on the south by the northern right-of-way of San Marco Street
and on the west by the Gulf of Mexico, which is more particularly described and depicted on
Exhibit C (see Section 5.02).
19. "Residential/Retail Phase" of development means the portion of the Project as depicted on
Exhibit C, including the four (4) story residential condominium building with retail on the
ground floor.
20. "Residential Tower Phase" of development means the portion of the Project as depicted on
Exhibit C, including the fifteen (15) story residential condominium building.
21. "Termination Date" means the date a termination certificate is issued pursuant to Article 12.
22. "Termination for Cause" means a termination which results from an uncured, material breach
of the Agreement.
23. "Unavoidable Delay" means a delay as described in Article 15 hereof.
24. "Vacation of Rights-of-Way" means the abandonment of the right-of-way of Beach Drive
(formerly N. Gulf Boulevard) between the north right-of-way of San Marco Street and the
south right-of-way of Baymont Street by the City in favor of Developer, in order that the goals
and objectives of the Comprehensive Plan may be better accomplished.
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 (2004), as
amended from time to time.
Development Agreement
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ARTICLE 2. PURPOSE AND DESCRIPTION OF PROJECT.
2.01. Finding of Public Purpose and Benefit. The proposed Project, including the acquisition
of the Controlled Property by the Developer and the design, construction, completion and
operation of the Project, and each part thereof, is hereby found by the parties hereto: (1) to
be consistent with and in furtherance of the objectives of the Comprehensive Plan of the City
of Clearwater, (2) to conform to the provisions of Florida law, (3) to be in the best interests of
the citizens of the City, (4) to further the purposes and objectives of the City, (5) to further the
public interest on Clearwater Beach, and (6) to implement Beach by Design, including the
creation of the new quality hotel resort to be constructed as a part of the Project.
2.02. Purpose of Agreement. The purpose of this Agreement is to further the implementation
of Beach by Design by providing for the development of the Project Site and the construction
of certain public improvements, 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 Project shall only include resort hotel, beach club, spa, fitness center, residential
and commercial uses (retail, restaurant and office), private parking and appropriate
accessory uses and shall be developed in substantial conformity with the Project
Description which is attached as Exhibit!2.. When all required approvals have been
granted by the appropriate authorities pursuant to applicable law, the intensity of
permitted use on the Project Site shall be:
Hotel - not less than 240 and not more than 260 units including a minimum
of 20,000 square feet of Meeting Space and other amenities as further
described on Exhibit!2..
Residential units - not to exceed 120 units.
Commercial/Retail - not more than 11,000 square feet of floor area, not
more than 3,000 sq. ft. of which may be restaurant.
Private parking - at least 431 spaces. In the event total parking spaces
provided is less than 431, Developer shall reduce outside membership in
Beach Club by 5 members for each space not provided and in the event total
parking spaces provided are more than 431, Developer may increase outside
membership in Beach Club by 5 members for each additional space
provided.
2. Nothing shall preclude the Developer from developing or operating all or portions of
the Project elements using any ownership format permitted under Florida Statutes
including fee simple, condominium, timeshare or fractional ownership formats.
3. Up to twenty-five percent (25%) of the hotel units may be suites with kitchens,
including all typical kitchen equipment and amenities. In addition, if permitted by
Development Agreement
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Beach by Design and the Land Development Code at the time of issuance of
building permits for the Hotel Phase, partial kitchens or mini-kitchens may be
allowed.
4. As a condition of the allocation of bonus hotel units pursuant to the designation of
Clearwater Beach as a Community Redevelopment District pursuant to the Pinellas
County Planning Council's Rules, the Developer shall comply with each of the
standards established in Beach by Design, including:
a. The resort hotel which is a part of the Project shall provide a full range of on
and off site amenities for the guests of the resort, including a full service
restaurant, room service, valet parking, exercise facilities, pool, and meeting
areas and access to boating, fishing and golf off-site. Off site amenities may
be provided through a concierge service.
b. The resort hotel which is a part of the Project shall be designed and operated
as a national or international"flag" or other comparable marketing affiliation
or program_ which will facilitate the repositioning of Clearwater Beach as a
national and international resort destination.
c. Prior to the issuance of a certificate of occupancy for the resort hotel which is
a part of the Project, the Developer shall record a covenant and restriction
which is enforceable by the City, substantially in accordance with Exhibit ~,
limiting the use and operation of the resort, obligating the Developer to
develop, implement and operate at all times when the resort hotel is open, a
Trip Generation Management Program which shall include the provision of
non-private automobile access to and from the resort which shall include at
least an airport shuttle and resort-provided transportation to off-site amenities
and attractions.
d. Prior to the issuance of a building permit authorizing the construction of the
resort hotel units, the Developer shall record a covenant and restriction which
is enforceable by the City, substantially in accordance with Exhibit E, on the
use and operation of the resort, that obligates the Developer to close and
vacate all persons (except for emergency personnel required to secure and
protect the facilities) from the resort hotel within twelve (12) hours after the
issuance of a hurricane watch which includes Clearwater Beach -by the
National Hurricane Center.
2.04. Cooperation of the Parties. The City and the Developer recognize that the successful
development of the Project 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
Project is designed, constructed, completed and operated as provided herein.
Development Agreement
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ARTICLE 3. REGULATORY PROCESS.
3.01. Land Development Regulations.
1.
2.
CP-
4.
Land Use DesiQnation. The Project Site is designated Resort Facilities High in the
Comprehensive Land Use Plan and zoned Tourist District in the City's Land
Development Regulations.
Amendments to Land Development ReQulations. The City covenants and agrees to
cooperate with Developer to the extent permitted by law in regard to any text or map
amendment to the City's Land Development Regulations which may be necessary in
order for Developer to carry out the Project as described in Section 2.03.
Allocation of Density Pool Units. Subject to the terms and conditions of this
A9reelll~lll, lilt:: City agrees to allocate and grant to Developer from the Density Pool
an additional one hundred forty-one (141) hotel units to the Project Site in
accordance with applicable law. The allocation of additional hotel units from the
Density Pool shall expire and be of no further force and effect unless the
Commencement Date occurs on or before the deadline hereafter set forth in Section
7.02.1.a.
Special Settlement Stipulation RiQhts. The City recognizes that portions of the
Project Site are subject to a Final Judgment By Consent entered by the Circuit Court
of Pinellas County in City of Clearwater v. Gray, Case No. 85-4145-15 and Thacker,
et al v. City of Clearwater, Case No. 86-17457-16 (as amended, the "Consent
Decree") which increases permitted density on a portion of the property.
3.02 Development Approvals and Permits.
1. Applications for Development Approval. The Developer shall prepare and submit to
the appropriate governmental authorities, including the City, applications for approval
of all plans and specifications necessary~forthe Rroject,~and shall bear all costs~of
preparing such applications, applying for and obtaining such permits, including
payment of any and all applicable application, inspection, regulatory and impact fees
or charges. The City shall, to the extent possible, expedite review of all applications,
including foundation permits. A list of all permits and approvals required to
implement the provisions of this Agreement is attached as Exhibit G. The failure of
this Agreement to address a particular permit, condition, or term of restriction shall
not relieve the Developer of the necessity of complying with the law governing said
permitting requirements, conditions, terms or restrictions.
2. Schedule. A Project Development Schedule is attached to this Agreement as Exhibit
D that identifies anticipated commencement and completion dates for each Phase
of the Project.
3. City Cooperation and Assistance. The City shall cooperate with the Developer in
obtaining all necessary Permits required for the construction, completion and
opening for business of the Project. If requested by the Developer and authorized by
law, the City will join in any application for any Permit, or, alternatively, recommend to
Development Agreement
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and urge any governmental authority that such Permit or Permits be issued or
approved.
4. 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.
5. Impact Fees. The City shall use its best efforts to secure or provide any lawfully
available credits against impact fees applicable to the Project which are authorized
under existing laws and regulations for public improvements constructed and paid for
by the Developer. In the event that the City is unable to secure a credit against any
impact fees, the City shall use its best efforts, within the limits of the applicable law,
to allocate impact fees collected from the Developer to the public improvements
which are described in Exhibits H, !, 4 and 1S to this Agreement or other
improvements in the immediate vicinity of the Project Site.
3.03. Concurrency.
1. Concurrency Required. The parties hereto recognize and acknowledge that Florida
law (specifically, Part II, Chapter 163, Florida Statutes, and Rule 9J-5, Florida
Administrative Code, collectively the "Growth Management Act") imposes restrictions
on development if adequate public improvements are not available concurrently with
that development to absorb and handle the demand on public services caused by
deveLopment. The City has created and implemented a system for monitoring the
effects of development on public services within the City. The Developer recognizes
and acknowledges it must satisfy the concurrency requirements of Florida law and
the City's regulations as applied to this Project.
2. Reservation of Capacity. The City hereby agrees and acknowledges that as of the
Effective Date of this Agreement, the Project satisfies the concurrency requirements
of Florida law. The City agrees to reserve the required capacity to serve the Project
for the Developer and to maintain such capacity for a period of three (3) years from
the Effective Date of this Agreement and that such period shall be automatically
extended for an additional three (3) years if the Developer commences construction
within the initial three (3) year period. The City recognizes and acknowledges that
the Developer will rely upon such reservation in proceeding with the Project.
3. Required Public Facilities. In addition to the obligations of the City and the
Developer set out in Article 5 of this Agreement, the Water Utilities Department of
the City will provide potable water service and sanitary sewer service to the Project.
Development Agreement
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ARTICLE 4. PLANS AND SPECIFICATIONS.
4.01. Plans and Specifications.
1. Responsibilitv for Preparation of Plans and Specifications. The Developer shall be
solely responsible for and shall pay the cost of preparing, submitting and obtaining
approval of the Plans and Specifications for the Project.
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. PROJECT DEVELOPMENT.
5.01. Ownership of Project Site. The Developer is the owner or contract purchaser of certain
parcels of land (each, a "Parcel" and collectively, the "Parcels") within the Project Site which
are more particularly described in Exhibit 6. to this Agreement ("Controlled Property").
5.02. Project Site. The Project Site consists of those properties located generally in an area which
is bounded by the east by the western edge of the right-of-way of Mandalay Boulevard, on the
north by the southern boundary of Lots 2-4 of Millers Replat (PB 26, Pg 17) on the south by
the northern right-of-way of San Marco Street and on the west by the Gulf of Mexico, as more
particularly described in Exhibit C.
5.03. Obligations of the City.
1. Vacation of RiQhts-of-Wav. The Developer shall apply for and the City Council shall
consider the adoption of an ordinance vacating the right-of-way of Beach Drive
(formerly North Gulfview Boulevard) between San Marco Street and Baymont Street
as depicted on Exhibit C.
2. Mandalav Improvements. The Developer shall, at its expense, realign the curb on
Mandalay Avenue, construct a new sidewalk, related streetscape improvements and
landscape improvements as further described in Exhibit H (the "Mandalay
Improvements"). The City shall grant to Developer, at Developer's expense, the right
to relocate the electrical panels for the lift station at Mandalay and Baymont as
described in Exhibit H-1 (the "Lift Station Improvements").
3. Permits. The City will cooperate and coordinate with the Developer with regard to all
permit applications, including those to state agencies, and will facilitate or expedite,
to the greatest extent possible, the permit approval process.
4. Bavmont Improvements. The Developer, at its expense, shall construct streetscape
and landscape improvements (the "Baymont Improvements"), as further described in
Exhibit L provided that such improvements shall not interfere with or obstruct the use
of Baymont Street for pedestrian and vehicular movement in accordance with the
provisions of Beach by Design and such improvements are consistent with the
provisions of Beach by Design and the City Charter.
Development Agreement
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*~
5.
Ambler Street Improvements. The City shall grant the Developer the authority to
construct, at its expense, landscape and streets cape improvements within the
existing Ambler Street right-of-way and building improvements and associated
pedestrian facilities within the pedestrian easement reserved to the City in Official
Records Book 2228, Page 720 of the Public Records of Pinellas County, Florida
(the "Ambler Street Improvements"), as further described on Exhibit 4 and provided
such improvements shall not interfere with or obstruct the use of Ambler Street for
pedestrian and vehicular movement or the use of the pedestrian easement so as to
reduce the width or clearance height of the pedestrian underpass from the existing
as-built condition prior to commencement of the Project in accordance with the
provisions of Beach by Design and such improvements are consistent with the
provisions of Beach by Design and the City Charter.
6.
San Marco Improvements. The City shall grant the Developer the authority to
construct, at its expense, the sanitary sewer line in the San Marco right-of-way ("San
Marco Improvements") as further described on the attached Exhibit.!S. Developer
shall be responsible for all costs of relocation, including the cost of restoring San
Marco.
7.
Vacation of Plat. The Developer shall prepare, at its expense and submit to an
application for vacation and City shall consider the vacation of that part of the plat of
Clearwater Beach Park as recorded in Plat Book 10, Page 42 of the Public Records
of Pinellas County, Florida and other plats of record (the "Existing Plats") which
include the Project Site and replat said property as reasonably required for the
development of the Project.
Conveyance of Beach Property to City. Developer agrees to convey to City by
special warranty deed, free and clear of liens and encumbrances, the real property
described on the attached Exhibit B-2 (the "Beach Property"). City agrees to accept
the conve fthe Beach Property as a ditional consideration fort e I n
of the additional hote unl s rom e Density Poo an , as approved by the City
Manager, in satisfaction of the Recreation Facility Land Fees and Open Space Fees
as to the Project. Developer shall not be excused from payment of the Recreation
Facility Fees which shall be due and payable in accordance with the City ordinance
imposing such fees. The property owned by Developer between the Beach Property
and the portions of the Project site to be improved, as described on the attached
Exhibit B-3, is hereafter referred to as the "Upland Property". The general public
shall be entitled to continue to use the Upland Property as the general public is
currently using such property. Future use of the Upland Property by the general
public shall not unreasonably interfere with or disturb the use of such property by
Developer and its successors, assigns, tenants, invitees and guests. The Developer
and its successors, assigns, tenants, invitees and guests shall be entitled to use the
Beach Property in the future to the same extent and in the manner as the general
public. The City shall have the exclusive right to grant concessions as to the Beach
Property. The Developer may operate on the Upland Property concessions related to
the use of the beach and the adjacent waters by the general public and tourists
visiting the beach area, and by the Developer, its successors, assigns, tenants,
invitees and guests. Such concessions will be limited to the sale, rental or use of
equipment, products and services as is then common to the recreational and other
use of the beach and the recreational uses on, in and under the adjacent waters of
Development Agreement
Page 9
ADOPTED
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9.
>r&
the Gulf of Mexico. City and Developer agree to impose a land use restriction on the
Beach Property and Upland Property that will prohibit use of such property for jet-ski
or para-sail operation concessions.
Approval of Construction Bevond CCCL and/or in V Zone. The City acknowledges
that for Developer to provide a quality beach resort, it will be necessary for
Developer to construct and operate certain improvements below the base flood
elevation and/or seaward of the Coastal Construction Control Line, such
improvements to include pool(s), spa(s), decks, pool bathrooms, pool bar/grill,
boardwalks, landscaping and associated improvements and facilities (the "Amenity
Improvements") as further described on the attached Exhibit .b. The City shall
cooperate with Developer in obtaining all necessary Permits for the Amenity
Improvements and agrees that such Amenity Improvements are necessary
requirements for a quality beach resort hotels.
Boat Dockino Facilities. The City owns certain real property adjoining a boat basin
immediately to the North of the Belle Harbor Condominium project ("Boat Basin").
The City agrees to jointly pursue with Developer the acquisition of a sovereignty
submerged lands lease ("SSLL") from the State of Florida that will permit
construction of boat docking facilities ("Boat Docking Facilities"). Developer agrees
to pursue, at Developer's expense, the SSLL, all required Permits for construction of
boat slips (the "Boat Slips") in the Boat Basin as conceptually depicted on the
attached Exhibit N. In the event Developer is able to obtain the SSLL or Permits for
the Boat Slips, the City and Developer shall enter into an agreement in the form
attached as Exhibit N-1 that will authorize the Developer to construct the new Boat
Slips, at Developer's sole expense, and provide forthe Developer and its designated
successors and assigns to have the right to utilize sixty-seven percent (67%) of such
Boat Slips so long as the Boat Docking Facilities continues to exist. The agreement
will provide (i) for Developer to pay all maintenance and repair costs for the Boat
Slips, (ii) for use of the Boat Slips to be limited to Project owners, tenants and
guests, (iii) for Developer to provide a shuttle service to the Boat Slips from the
Project, and (iv) for the assignment of Boat Slips to be limited to Project owners.
v4-
Sales/Construction Offices. The City acknowledges Developer's plan to construct
sales/construction offices on a portion of the Project Site. City agrees to expedite the
review of any permit application submitted by Developer as to the sales/construction
offices.
1 ~ I) ,Improvements Within Rioht-of-Wav. The City authorizes the Developer to make
/.Ji}J certain Project improvements within the City rights-of-way adjoining the Project Site
V''( as depicted on the approved site plan ("Project Improvements"). City grants to
Developer the right and easement to install, maintain, repair and replace all
encroaching Project Improvements approved by the City; provided, however, that
f\ Developer shall be solely responsible for all costs relating to the Project
Improvements and shall execute and deliver to City a maintenance agreement in
form and content reasonably acceptable to City.
Development Agreement
Page 10
ADOPTED
11.
13. Timelv Completion. The City recognizes the public importance of the timely
completion of the proposed improvements, and time is deemed to be of the essence.
The City considers this Agreement as overall authority for the Developer to proceed
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to permit, and agrees to implement a fast-track review, permitting, and inspection
program for this Project.
5.04. Obligations of the Developer.
~@
ARTICLE 6.
1. Resort Hotel Proiect. The Developer shall build and operate a no less than two
hundred forty (240) room resort hotel to be operated as a quality resort in
accordance with the Minimum Quality Standard as provided for in Exhibit B-1.
--
2.
Responsibilitv for On-Site Costs. The Developer shall be responsible for all on-site
costs relative to the development of the Project, including the private parking spaces.
Mandalav. Bavmont. Ambler and San Marco Improvements. The Developer shall be
responsible for all design and construction costs for all Mandalay and Baymont
Improvements as provided on Exhibits Hand 1 and for all design and construction
costs for all Ambler and San Marco Improvements as provided on Exhibits 4 and fS.
4.
Storm Drainaoe Improvement. The Developer shall design and construct storm
drainage improvements for the City in the San Marco Street right-of-way in
accordance with the approved site plan ("San Marco Drainage Improvements"). The
Developer further agrees to design and construct storm drainage improvements
North of Baymont Street within the Mandalay Avenue right-of-way and the
connection to Clearwater Bay as shown on the approved site plan ("Mandalay
Drainage Improvements"). City shall reimburse Developer for all reasonable design
and construction costs for the San Marco Drainage Improvements. Developer shall
pay all design and construction costs for the Mandalay Drainage Improvements.
5.
Covenant of Unified Use. The Developer hereby agrees to execute the covenant of
unified use and development for the Controlled Property providing that the Controlled
Property shall be developed as a single project and operated and used as a unified
mixed use project, which is attached as Exhibit M; provided however, that nothing
shall preclude the Developer from selling all or a portion of the Controlled Property in
a condominium form of ownership. _ ~
6.
Project Oblioations. The Developer agrees to carry out the redevelopment of the
Project Site by completing the purchase of all of the Controlled Property, preparing
project plans and specifications, obtaining approvals by governmental authorities
necessary for development of the Project, demolishing existing improvements,
constructing various private improvements on the Project Site and operating the
Project as a unified and integrated project. The Developer shall take all actions
necessary to maintain control of the Project Site, until certificate(s) of occupancy are
issued by the City.
PROJECT FINANCING.
6.01. Notice of Project Financing to City. As soon as the Developer shall have obtained any
financing for any portion of the Project, the Developer shall provide the City with a sworn
statement identifying the Project Lender(s) and documenting the type of financing that the
Project Lender(s) has issued in favor of the Developer for the Project.
Development Agreement
Page 11
ADOPTED
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6.02. Copy of Default Notice to City. The Developer covenants and agrees that any Project
Financing documents shall include provisions which provide that in the event any Project
Financing shall become due and payable by maturity or acceleration, the Project Lender
shall give written notice thereof to the City by certified mail, return receipt requested. Such
notice from the Project Lender to the City shall state the basis of the default by the
Developer and shall include copies of any pleadings in any proceeding instituted by the
Project Lender(s) incident thereto.
6.03. Intentionally Omitted.
6.04. 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 instrument 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.
6.05. Notice to Project Lender. If Developer shall encumber its interests under this Agreement,
and if Developer or the holder of the indebtedness secured by the assignment shall give
notice to City of the existence of the assignment and the address of the holder, then City will
mail or deliver to the Project Lender, a duplicate copy of all notices in writing which City may,
from time to time, give to or serve on Developer under and pursuant to the terms and
provisions of this Agreement. Copies shall be mailed or delivered to the holder at, or as near
as possible to, the same time the notices are given to or served on Developer. The Project
Lender may, at its option, at any time before the rights of Developer shall be terminated as
provided in this Agreement, do any act or thing that may be necessary and proper to be
done in the observance of the covenants and conditions-of this Agreement or to prevent thsL
termination of this Agreement. Ail payments so made and all things so done and performed
by the Project Lender shall be as effective to prevent a forfeiture of the rights of Developer
under this Agreement as they would have been if done and performed by Developer.
6.06. Consent of Project Lender. This Agreement cannot be amended, canceled, or surrendered
by the Developer without the consent of the Project Lender.
6.07. Estoppel Certificates. The City agrees at any time and from time to time upon not less than
ten (10) days prior written request by the Developer to execute, acknowledge, and deliver to
any ProjeGt Lender a statemellt in writing certifying that this Agreement is unmodified and in
full force and effect (or if there have been modifications), being intended that any such
statement delivered pursuant to this Article 6 may be relied upon by the Project Lender.
6.08. 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
Development Agreement
Page 12
ADOPTED
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occurrence of a default under the terms of this Agreement.
6.09. Reinstatement by Project Lender. If this Agreement is terminated by reason of the
happening of any event of default, and after any notice and cure period provided, City shall
give prompt notice of this right to reinstate to the Project Lender, which right to reinstate shall
be for a period of ninety (90) days. However, the Project Lender shall not have any personal
liability for performance of the Developer's obligations under this Agreement unless and until
the Project Lender acquires title to the Project Site and expressly assumes such liability.
6.10. New Agreement. City shall, on written request of a Project Lender which has acquired title
to the Project Site by foreclosure or deed in lieu of foreclosure, enter into a new Agreement
with such Project Lender, or its designee, within twenty (20) days after receipt of such
request, which new agreement shall be effective as of the date of such termination of this
Agreement for the remainder of the term of this Agreement and upon the same terms,
covenants, conditions and agreements as are contained in this Agreement, provided that the
Project Lender or its designee shall:
1. Pay to City at the time of the execution and delivery of said new agreement any and all sums
which would have been due under this Agreement from the date of termination of this
Agreement (had this Agreement not been terminated) to and including the date of the
execution and delivery of said new agreement, together with all expenses, including but not
limited to, attorneys' fees (for trials and appeals) in a reasonable amount incurred by City in
connection with the termination of this Agreement and with the execution and delivery of the
new agreement, and
2. On or prior to the execution and delivery of said new agreement agree in writing that
promptly following the delivery of such new agreement, such Project Lender or its designee
will perform or cause to be performed all of the other covenants and agreements in this
Agreement on Developer's part to be performed to the extent that Developer shall have
failed to perform the same to the date of delivery of such new agreement.
6.11. Transfer of New Agreement. The Project Lender shall have the right to assign or transfer
the new agreement to any person or entity without the City's consent so long as the new
agreement is in good standing and Project Lender is current in obligations owed to the City.
Notwithstanding the foregoing, any Project Lender that is assigning the new agreement and
the estate created thereby shall provide to the City notice of assignment and shall cause to
be executed and delivered in a form reasonably acceptable to the City an assumption
agreement from the assignee pursuant to which said assignee assumes the duties,
obligations, covenants, conditions and restrictions of the new agreement. Upon such
assignment and assumption by the assignee, the assignor shall be released of all liability
under the new agreement and, upon request of the assignor, the City shall execute and
deliver to the assignor a release agreement in a form reasonably acceptable to the assignor
evidencing such release of the assignor from any liability under the new agreement.
6.12. Survival. The provisions of this Article 6 shall survive the termination of this Agreement and
shall continue in full force and effect thereafter to the same extent as if Article 6 were a
separate and independent contract made by the City, the Developer and the Project Lender.
Development Agreement
Page 13
ADOPTED
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ARTICLE 7. CONSTRUCTION OF PROJECT.
7.01. Project Site. The Developer shall be responsible for all site investigation, environmental
testing, demolition and site clearing.
7.02. Construction of the Project.
>(C)
a.
Commencement. Developer shall construct the Project substantially in
accordance with the Plans and Specifications therefor. Developer shall
commence construction of the Hotel Phase of the Project on or before the
~ of~ne (1) year after receipt of all development approvals for the
t, afher than building permits, and expiration or resolution of all
appeal/challenges thereto ("Approval Effective Date"); provided, however,
that the running of the one (1) year period shall be tolled for the period
commencing on the date of submittal by Developer for building permits for
Hotel Phase and e,nding on the date of issuance of the building permits for
Hotel Phas~(CIiDtwo (2) years after the Approval Effective Date (such
deadline being t~IHotel Commencement Deadline"), and shall thereafter
diligently pursue completion of the Hotel Phase of the Project. Developer
shall commence construction of the Residential Tower Phase of the Project
on or before the Hotel Commencement Deadline and shall thereafter
diligently pursue completion of the Residential Tower Phase of the Project.
Developer shall commence construction of the Residential/Retail Phase of
the Project within two (2) years after the Hotel Commencement Deadline and
shall thereafter diligently pursue completion of the Residential/Retail Phase
of the Project.
b. For purposes of this Section 7.02, "commence construction" means
commencement of meaningful physical development of that part of the
Project as authorized by the Building Permit therefor which is continued and
diligently prosecuted toward and with the active of completion of that part of
the Project. The date that Developer shall commence construction of each
Phase is the "Commencement Date" of such Phase.
c. All obligations of Developer (including deadlines in the Commencement
Date) with respect to commencement and continuation of construction shall
be subject to delays and extensions from time to time for Unavoidable Delay
(see Article 15). Developer shall not be deemed to be in default of this
Agreement to the extent construction of the Project, or a part thereof, is not
complete by reason of Unavoidable Delay.
2. Pursuit of Construction. After the Commencement Date of each Phase, Developer
shall continue, pursue and prosecute the construction of such Phase of the Project
with due diligence to completion, and shall not at any time actually or effectively have
abandoned (or its Contractor having actually or effectively abandoned) the Project
Site. For purposes of this subsection 7.02.2, "abandoned" means to have ceased
any construction work which effectively advances the construction of the Project
toward completion, including removing all or substantially all of the construction work
force from the Project site for a period of not less than sixty (60) days.
Development Agreement
Page 14
ADOPTED
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3. Maintenance of Construction Site. During the construction of the Project, Developer
shall, at its own expense, keep the Project and all lands owned by Developer within
the Project Site in reasonably good order and condition.
4. Construction Completion Certificate.
a. For purposes of this Section 7.02, "completion, "complete," "substantially
complete" or "substantial completion" means, with respect to construction of
a Phase of the Project, the later of a certificate of occupancy for the shell of
any structures) (not including any tenant improvements) for that part of the
Project issued by the City or other appropriate governmental authority having
jurisdiction over the Project Site or that portion of the Project has been
deemed substantially completed by the Project Lender under the
Construction Financing therefor.
b. Upon the substantial completion of the construction of any Phase of the
Project in accordance with the provisions of the Plans and Specifications,
Developer shall prepare and execute a Construction Completion Certificate,
which shall then be delivered to the City. Upon receipt of the certificate, the
City shall promptly and diligently proceed to determine if construction of such
Phase of the Project has been completed substantially in accordance with the
Plans and Specifications and this Agreement. Upon making such a
determination, the City shall execute the certificate and return it to Developer.
The date of the Construction Completion Certificate shall be the date when
all parties shall have executed said certificate.
c. The Construction Completion Certificate shall constitute a conclusive
determination by the parties hereto of the satisfaction and termination of the
obligations of Developer hereunder to construct such Phase of the Project
described in the certificate; provided, however, that nothing in this Section
shall be a waiver of the rights, duties, obligations or responsibilities of the City
or any other governmental entity acting in its regulatory or governmental
capacity or an approval of said construction for purposes of the issuance of a
certificate of occupancy for that part of the Project.
d. If the City shall refuse or fail to execute any Construction Completion
Certificate after receipt of a request by Developer to do so, then the City
shall, within ten (10) days after its receipt of such request, provide
Developer with a written statement setting forth in reasonable detail the
reason(s) why the City has not executed the Construction Completion
Certificate and what must be done by Developer to satisfy such objections so
that the City would sign the certificate. Upon Developer satisfying the City's
objections, then Developer shall submit a new request to the City for
execution of the Construction Completion Certificate and that request shall
be considered and acted upon in accordance with the procedures in this
Section for the original request.
e. If the City refuses to execute the certificate and Developer does not agree
with the objections set forth in the City's statement, then Developer may
invoke the arbitration procedures set forth in Article 14 hereofforthe purpose
Development Agreement
Page 15
ADOPTED
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of determining if the prerequisites for execution by all parties of the
Construction Completion Certificate have been met, and if not, what actions
must be taken to satisfy such prerequisites.
f.
The Construction Completion Certificate shall be in a form sufficient to be
recorded in the public records of Pinellas County, Florida. After execution by
the City, it shall be promptly returned to Developer who shall record the
certificate in the public records of Pinellas County, Florida, and pay the cost
of such recording.
tJ
Developer agrees to complete the HoteLPhase of the Project on or before
two 2 ears after the Commencement Date of the Hotel Phase. Developer
agrees to comp e e e la ower Phase of the Project on or before
two (2) years after the Commencement Date of the Residential Tower Phase.
Developer agrees to complete the Residential/Retail Phase within eighteen
rt18) months after the Commencement Date of the Residential/Retail Phase.
In the event Developer proceeds with construction of its Residential Tower
Phase with a building height greater than 100 feet prior to completion of the
Hotel Phase, Developer shall provide to the City of Clearwater a letter of
credit in the amount of One Million Dollars ($1,000,000) that shall secure
Developer's obligations under this Agreement as to completion of the Hotel
Phase and which letter of credit shall remain in full force and effect until the
Construction Completion Certificate for the Hotel Phase is recorded as
provided above. The letter of credit shall be in a form reasonably acceptable
to the City. In the event Developer defaults as to its obligations to commence
and/or complete the Hotel Phase and such default is not cured within any
applicable grace or cure period, the City shall have the right to draw on the
letter of credit and retain the full proceeds as liquidated damages for such
default. In the event for any reason Developer does not proceed with a
building in the Residential Tower Phase that exceeds 100 feet in height, this
provision shall be null and void and if a letter of credit has previously been
delivered to the City, it shall be promptly returned to Developer.
vh
0JI1 ~ \ /VV\.
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7.03. City Not in Privity. The City shall not be deemed to be in privity of contract with any
Contractor or provider of services with respect to the construction of any part of the Project
not constituting all or any part of public improvements.
7.04. Construction Sequencing and Staging Area. The Developer shall construct the Baymont
and Ambler Improvements in a manner and fashion which will minimize the inconvenience of
the construction on the property owners of Clearwater Beach and the residents of the City.
The City agrees to allow Developer to use portions of Baymont and Ambler Streets as
designated by the City for construction staging and Project office, during construction of the
Project, without charge to the Developer, provided that such staging area and Project office
does not unreasonably affect the maintenance of access provided for in this Paragraph.
Development Agreement
Page 16
ADOPTED
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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 ofthe
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.
Development Agreement
Page 17
ADOPTED
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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,_ha5-all [equisite 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
Development Agreement
Page 18
ADOPTED
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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 financial information and other documentation, including that pertaining to the
Project 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 Project
(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 Project
as contemplated by this Agreement.
9. The Developer has the experience, expertise, and capability to develop, cause the
construction, and complete the Project and, oversee and manage the design,
planning, construction, completion and opening for business of the Project.
9.02. Covenants. The Developer covenants with the City that until the earlier of the Termination
Date or the Expiration Date:
1. The Developer shall timely perform or cause to be performed all of the obligations
contained herein which are the responsibility of the Developer to perform.
Development Agreement
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ADOPTED
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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 Project 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 develop, construct and complete the Project 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 develop, construct and complete
the Project 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. Other than sales and assignments contemplated by this Agreement, the Developer
shall not sell, lease, transfer or otherwise dispose of all or substantially all its assets
without adequate consideration and will otherwise take no action which shall have
the effect, singularly or in the aggregate, of rendering the Developer unable to
continue to observe and perform the covenants, agreements, and conditions hereof
and the performance of all other obligations required by this Agreement.
8. Except for the removal of any structures, plants, items or other things from the
Project Site necessary for construction of the Project to commence and continue, the
Developer shall not permit, commit, or suffer any waste or impairment of the Project
or the Project Site prior to the Completion Date.
9. Provided all conditions precedent thereto have been satisfied or waived as provided
herein, the Developer shall acquire the Controlled Property as provided in Article 5
hereof and shall pay the Purchase Price, as the case may be, when due and payable
as provided therein.
Development Agreement
Page 20
ADOPTED
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10. Provided all conditions precedent thereto have been satisfied or waived as provided
herein, the Developer shall design, construct and complete the Project such that it is
substantially complete as provided in this Agreement no later than the deadline for
such completion as provided in this Agreement.
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.
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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
Development Agreement
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ADOPTED
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be in effect those instruments, documents, certificates, permits, licenses and
approvals, and shall cause to occur those events contemplated by this Agreement
that are applicable to and are the responsibility of the City.
3. The City shall assist and cooperate with the Developer to accomplish the
development of the Project 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. Except for the demolition of existing structures on the Project Site and the removal of
objects from the Project Site as contemplated by this Agreement, the City shall not
permit, commit, or suffer any waste or impairment to the Project Site, nor shall the
City request or recommend any rezoning of the Project Site, or any part thereof,
which will prevent or adversely affect the development of the Project.
5. The City shall maintain its financial capability to carry out its responsibilities as
contemplated by this Agreement and shall notify the Developer of any event,
condition, occurrence, or change in its financial condition which adversely affects, or
with the passage of time is likely to adversely affect, the City's financial capability to
carry out its responsibilities contemplated hereby.
ARTICLE 11. CONDITIONS PRECEDENT.
11.01. The Developer Acquiring Project Site. Unless this Agreement has been terminated
pursuant to Article 12 hereof, the obligation of the Developer to acquire the Project Site is
subject to the fulfillment to the satisfaction of, or waiver in writing by, the Developer of each
of the following conditions precedent: c_" ~
1. The Developer shall have received evidence satisfactory to the Developer that the
Project Site permits the uses contemplated in this Agreement.
2. The Plans and Specifications as are required for issuance of the Building Permit
required to commence construction of the Project shall have been approved by the
City in accordance with applicable ordinances, land use regulations, building codes
and other regulations of the City.
3. The Developer shall have obtained commitments from the Project Construction
Lender as provided in Article 6 hereof.
4. The City shall have closed and vacated any streets, alleys or other public rights-of-
way as may be necessary for the construction and use of the Project Site according
to the Plan and Specifications, this Agreement and approved by resolution the
abandonment of all such rights-of-way in favor of the Developer.
Development Agreement
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ADOPTED
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5. All Permits necessary for construction of the Project to commence shall have been
issued and have become final and non-appealable.
11.02. Construction of Project. Subject to termination of this Agreement pursuant to Article 12,
the obligation of the Developer to commence construction of the Project on the
Commencement Date is subject to the fulfillment to the satisfaction of, or waiver in writing
by, the Developer of the following conditions:
1. The Plans and Specifications that are necessary to commence construction shall
have been approved by the City, and the initial Building Permit for the
commencement of construction of that part of the Project and all other Permits
necessary for construction to commence have been issued.
2. The vacation of rights-of-way as provided in Section 5.03.1. hereof.
11.03. 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 pertaining to the entire Project
upon the occurrence of anyone or more of the following:
a. The Developer shall fail to perform or comply with any material provision of
this Agreement applicable to it within the time prescribed therefor, after
receipt of a notice from the City pursuant to Paragraph 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
Development Agreement
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2.
any of such entity's properties, such appointment shall not have been
vacated; or
a.
If an event of default by the Developer described in subsection 1 above shall
occur, the City shall provide written notice thereof to the Developer, and, if
such event of default shall not be cured by the Developer within thirty (30)
days after receipt of the written notice from the City specifying in reasonable
detail the event of default by the Developer, or if such event of default is of
such nature that it cannot be completely cured within such time period, then if
the Developer shall not have commenced to cure such default within such
thirty (30) day period and shall not diligently prosecute such cure to
completion within such reasonable longer period of time as may be
necessary (provided, however, if the Developer is proceeding diligently and
in good faith, the curative period shall be extended for a period of not
exceeding six (6) months without any approval or consent of the City being
required, but such approval will be required if the curative period is to be
extended beyond six (6) months then, in addition to any remedy available
under Section 12.05, the City may terminate this Agreement or pursue any
and all legal or equitable remedies to which the City is entitled, provided,
however, if the Developer shall fail to cure such event of default within said
thirty (30) day or longer period or ceases to proceed diligently to timely cure
such event of default, then the City may proceed to enforce other available
remedies without providing any additional notice to the Developer.
b. Any attempt by the City to pursue any of the above referenced remedies will
not be deemed an exclusive election of remedy or waiver of the City's right to
pursue any other remedy to which either may be entitled.
c. Any time periods or deadlines provided in this Agreement shall be tolled or
extended by the amount of time to cure any event of default hereunder if
such event affects the Developer's or City's ability to perform by such
deadline or the expiration of such period.
3. Subject to the rights of the Project Lender, if the City elects to cure a default under
Subsection 12.01.1. by the Developer, construction contracts, contract documents,
building permits, development permits, management agreements, and financial
commitments (all only to the extent assignable) with respect to the Project shall, if
such default has not been previously cured, on the day following receipt by the
Developer of notice from the City of its election to cure, be deemed then assigned to
the City making said election, without necessity of any other action being taken or
not taken by any party hereto. The Developer shall transfer and deliver to the City
upon making said election, all assignable Plans and Specifications, working
drawings, construction contracts, contract documents, financial commitments,
management agreements, and all Permits, and, at the direction of the City, the
defaulting the Developer shall vacate the Parcel(s).
4. Notwithstanding any provision of this Section, a default by the Developer shall not
affect the title of any condominium unit or common area conveyed by the Developer
to an unrelated third party or to a condominium association which is not controlled by
the Developer.
Development Agreement
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ADOPTED
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12.02. Default by the City.
1. Provided the Developer is not then in default under Section 12.01, there shall be an
"event of default" by the City under this Agreement in the event the City shall fail to
perform or comply with any material provision of this Agreement applicable to it;
provided, however, that suspension of or delay in performance by the City during any
period in which the Developer is in default of this Agreement as provided in Section
12.01 hereof will not constitute an event of default by the City under this Subsection
12.02.
2.
If an event of default by the City described in Subsection 12.02.1. shall occur,
the Developer shall provide written notice thereof to the City, and, after
expiration of the curative period described in paragraph b. below, may
terminate this Agreement, institute an action to compel specific performance
of the terms hereof by the City or pursue any and all legal or equitable
remedies to which the Developer is entitled; provided, however, if the event
of default by the City occurs, any monetary recovery by the Developer in any
such action shall be limited to bona fide third-party out of-pocket costs and
expenses, including reasonable attorneys' fees, incurred by the Developer in
connection with this Agreement and the transactions contemplated hereby,
unless any such default by the City was willful and committed in bad faith
with reckless disregard for the rights of the Developer.
a.
b. The Developer may not terminate this Agreement or institute an action
described in Subsection 2.a. 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 withoutanYAP_prov~I o~ons~l!t
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 oftime, 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
Development Agreement
Page 25
ADOPTED
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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 Prior to Commencement of Project.
1. The Developer and the City acknowledge and agree that as of the Effective Date
certain matters mutually agreed by the parties hereto to be essential to the
successful development of the Project have not been satisfied or are subject to
certain conditions, Ip,gal requirement5-0r appmvals beyondJhe control of any of the
parties hereto or which cannot be definitely resolved under this Agreement,
including, but not limited to, failure of a governmental authority to grant an approval
required for development of the Project or insurable title to the Project Site has not
been obtained. In recognition of these events or conditions, the parties hereto
mutually agree that, provided the appropriate or responsible party therefor diligently
and in good faith seeks to the fullest extent of its capabilities to cause such event or
condition to occur or be satisfied, the failure of the events or conditions listed in
subsection 2. below to occur or be satisfied shall not constitute an event of default by
any party under this Article 12, but may, upon the election of any party hereto, be the
basis for a termination of this A!=Jreement in accordance with this Section.
2. In addition to any other rights of termination provided elsewhere in this Agreement,
prior to commencement of the Project, this Agreement may be terminated as
provided in Subsection 3. of this section by the City or the Developer after the
occurrence of any of the following events or conditions (except for Subsection b. , in
which event only the Developer may terminate this Agreement pursuant to this
subsection 2.):
Development Agreement
Page 26
ADOPTED
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a. The appropriate governmental authority (including the City in exercise of its
governmental and regulatory authority and responsibility), upon petition by
the Developer denies or fails to: issue the necessary order or other action
necessary, vacate right-of-way as described in Section 5.03, issue the
Permits, issue the Building Permits, or approve any other land use necessary
to commence construction of the Project on the Project Site, provided the
Developer has proceeded diligently, expeditiously and in good faith to obtain
such approval, permits or other necessary actions;
b. A previously unknown site condition is subsequently discovered and that
condition prevents successful development of the Project, or part of the
Project on the Project Site, or part of the Project Site (in which case only the
Developer at his option can terminate the Project as not feasible).
3. Upon the occurrence of an event described in subsection 2. or in the event that the
Developer or the City, after diligently and in good faith to the fullest extent its
capabilities, is unable to cause a condition precedent to its respective obligations to
occur or be satisfied, then the Developer or the City may elect to terminate this
Agreement by giving a notice to the other party hereto within thirty (30) days of the
occurrence of such event or the determination of inability to cause a condition
precedent to occur or be satisfied, stating its election to terminate this Agreement as
a result thereof, in which case this Agreement shall then terminate.
4. In the event of a termination pursuant to this Section 12.05, neither the Developer
nor the City shall be obligated or liable one to the other in any way, financially or
otherwise, for any claim or matter arising from or as a result of this Agreement or any
actions taken by the Developer and the City, or any of them, hereunder or
contemplated hereby, and each party shall be responsible for its own costs,
however, the provisions of Sections 9.01 and 10.01 shall apply and shall survive
termination of this Agreement, the provisions of this Subsection 12.05.4 to the
contrary notwithstanding.
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12.06. Termination Certificate.
Development Agreement
Page 27
ADOPTED
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 Project Site 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.
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ARTICLE 13. RIGHT TO CONTEST.
13.01. Rightto Contest. Subject to the conditions setforth 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 Developer, the Project (or any part thereof), the Project Site, furniture,
fixtures, equipment or other 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 acquisition or
preparation of the Project Site, the construction, completion, operation or use of the
Project, the Project Site, or any part thereof, in any material respect, and neither the
Project or Project Site, nor any part of the Project or the Project Site, would be
subject to any risk of being involuntarily sold, forfeited or lost or the acquisition of the
Project Site or the construction, equipping, or completion of the Project 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 procaf!ding -or as may--be
reasonably requested by the others, to protect the Project and the Project Site, 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.
Development Agreement
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14.02. Appointment of Arbitrators.
1.
2.
a.
Unless accelerated arbitration as provided in Section 14.08 hereof is
invoked, any party invoking arbitration herewith shall, within five (5) days after
giving notice of impasse in the dispute resolution process or following the
expiration of the time period for such dispute resolution process or upon
occurrence of the event permitting arbitration to be invoked, give written
notice to that effect to the other parties, and shall in such notice appoint a
disinterested person who is on the list of qualified arbitrators maintained by
the American Arbitration Association or a disinterested person not on such
list to whom an objection is not made by any other party hereto within five (5)
days of receipt of the notice of such appointment as the arbitrator or, if more
than one (1) arbitrator is to be appointed, as one of the arbitrators.
b. Within ten (10) days after receipt of the notice described in paragraph (1), the
other parties shall by written notice to the original party acknowledge that
arbitration has been invoked as permitted by this Agreement, and shall either
accept and approve the appointment of such individual set forth in the
original notice as a sole arbitrator or shall appoint one (1) disinterested
person per party of recognized competence in such field as an arbitrator.
a.
If two (2) arbitrators are appointed pursuant to subsection a. above, the
arbitrators thus appointed shall appoint a third disinterested person who is on
the list of qualified arbitrators maintained by the American Arbitration
Association, and such three (3) arbitrators shall as promptly as possible
determine such matter.
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
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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 or 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.
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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, knowil 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.
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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 Subsection 3. and in
Subsection 4. 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 Unavo:dable 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. RESTRICTIONS ON USE.
16.01. Project. Prior to the earlier of the Termination Date or the Expiration Date, no use of the
Project, other than as described in Section 2.03, shall be permitted, other than the operation
of improvements existing on the Effective Date until those improvements are demolished,
unless and until the Developer or the person, if other than the Developer, intending to so use
the Project or Project Site, shall file with the City a request for a release from the restriction
imposed by this Section. The Governing Body of the City shall promptly consider such
request and either deny the request, approve the request as filed, or approve the request
subject to such terms, conditions and limitations as the City may reasonably require. Unless
specifically requested and approved, a release of the restriction imposed by this Section
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shall not release the Developer from any obligations or restrictions imposed by this
Agreement or any agreement, instrument or document contemplated hereby.
ARTICLE 17. FIRE OR OTHER CASUAL TV; CONDEMNATION.
17.01. Loss or Damage to Project.
1. Until the Project Completion Date, and without regard to the extent or availability of
any insurance proceeds, the Developer covenants and agrees to diligently
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 Project on a Parcel which it
owns to substantially the same size, floor area, cubic content and general
appearance 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 Project, 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.
17.02. Partial Loss or Damage to Project. Until the Project Completion Date, any loss or damage
by fire or other casualty or exercise of eminent domain to the Project or Project Site, or any
portion thereof, which does not render the Project or Project Site 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. Project Insurance Proceeds.
1. Whenever the Project, 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.
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 Project to the extent necessary to repair or reconstruct
the Project.
17.04. Notice of Loss or Damage to Project. The Developer shall promptly give the City written
notice of any significant damage or destruction to the Project stating the date on which such
damage or destruction occurred, the expectations of the Developer as to the effect of such
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damage or destruction on the use of the Project, and the proposed schedule, if any, for
repair or reconstruction of the Project.
17.05. Condemnation of Project or Project Site; Application of Proceeds. In the event that
part, but not all, of the Project or Project Site, or both, 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 Project, provided the Project can be restored and be
commercially feasible for its intended use as contemplated by Section 2.03.1. of this
Agreement after the taking, and, if not, can be retained by the Developer.
ARTICLE 18. MISCELLANEOUS
18.01. Assignments.
1. Bv the Developer.
a. 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 consent of 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.
b. 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.
c. 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 Section 18.01, provided, however,
that notice of such assignment shall be given by the Developer to the City not
less than thirty (30) days prior to such assignment being effective and the
assignee shall be bound by the terms of this Agreement to the same extent
as would the Developer in the absence of such assignment.
d. No assignee, purchaser, sublessee or acquire of all or any part of the
Developer's rights and obligations with respect to anyone Parcel shall in any
way be obligated or responsible for any of the Developer's obligations with
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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.
18.02. Successors and Assigns. The terms herein contained shall bind and inure to the benefit of
the City, and its successors and assigns, and the Developer and its successors and assigns,
except as may otherwise be specifically provided herein.
18.03. Notices.
1. All notices, demands, requests for approvals or other communications given by
either party to another shall be in writing, and shall be sent by registered or certified
mail, postage prepaid, return receipt requested or by courier service, or by hand
delivery to the office for each party indicated below and addressed as follows:
To the Developer:
To the City:
CBR Development I, LLC and
CBR Development II, LLC
2201 - 4th Street North
Suite 200
St. Petersburg, FL 33704
Attn: J. Michael Cheezem
City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
with copies to:
with copies to:
E.D. (Ed) Armstrong, III
P.O. Box 1368
Clearwater, FL 33757
Pam Akin, Esquire
Clearwater City Attorney
112 S. Osceola Avenue
Clearwater, FL 33756
and
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Greene & Schermer
1301 - 6th Avenue West
Suite 400
Bradenton, FL 34205
Attn: Robert F. Greene, Esquire
2. Notices given by courier service or by hand delivery shall be effective upon delivery
and notices given by mail shall be effective upon receipt. Refusal by any person to
accept delivery of any notice delivered to the office at the address indicated above
(or as it may be changed) shall be deemed to have been an effective delivery as
provided in this Section 18.03. The addresses to which notices are to be sent may
be changed from time to time by written notice 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.
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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 orthe 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 officer, employee, agent or member thereof available for
service of process in 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 member 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 an~d th.e--Clty 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 Project, 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
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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.
18.1 O.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 Project.
18.13. Memorandum of Development Agreement. The City and the Developer agree to execute,
in recordable form, on the Effective Date, the short form "Memorandum of Agreement for
Development and Disposition of Property" 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 gener~1 obligation or indebtedness of the City or the City, a pledge of the
ad valorem taxing power of the City or the City or a general obligation or indebtedness of the
City or 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, the City or
any other governmental entity or taxation in any form on any real or personal property to pay
the City's or the City's obligations or undertakings hereunder.
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18.16. Other Requirements of State Law. Nothing in this Agreement shall be deemed to relieve
either party from full compliance with any provision of State law which is applicable to any of
the obligations or undertakings provided for in this Agreement. In the event that this
Agreement omits an obligation to comply with any provision of State law in regard to any of
the obligations or undertakings provided for in this Agreement, it is the intention of the
parties that such applicable State law shall be deemed incorporated into this Agreement and
made a part thereof. In the event that there is any conflict between the provisions of this
Agreement and applicable State law, it is the intention of the parties that the Agreement shall
be construed to incorporate such provisions of State law and that such provisions shall
control.
18.17. Technical Amendments; Survey Corrections. In the event that due to minor inaccuracies
contained herein or any Exhibit attached hereto or any other agreement contemplated
hereby, or due to changes resulting from technical matters arising during the term of this
Agreement, the parties agree that amendments to this Agreement required due to such
inaccuracies, unforeseen events or circumstances which do not change the substance of
this Agreement may be made and incorporated herein. The City Manager is authorized to
approve such technical amendments on behalf of the City, respectively, and is authorized to
execute any required instruments, to make and incorporate such amendment to this
Agreement or any Exhibit attached hereto or any other agreement contemplated hereby.
18.18. Term; Expiration; Certificate.
1. If not earlier terminated as provided in Section 12.05, this Agreement shall expire
and no longer be of any force and effect on the tenth anniversary of the Effective
Date.
2. Upon completion of the term of this Agreement, all parties hereto shall execute the
Agreement Expiration Certificate. The Agreement Expiration Certificate shall
constitute (and it shall be so provided in the certificate) a conclusive determination of
satisfactory completion of all obligations hereunder and the expiration of this
Agreement.
3. 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.
4. 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.
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18.20. 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
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IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals
affixed as of this _ day of , 2004.
THE CITY OF CLEARWATER, FLORIDA
Attest:
By:
By:
City Clerk
Mayor
Approved as to form and correctness:
, Esquire
City Attorney
STATE OF FLORIDA
COUNTY OF PINELlAS
The foregoing instrument was acknowledged before me this _ day of ,
2004 by and , Mayor and City Clerk,
respectively, for the City of Clearwater, Florida, on behalf of the City, who is 0 personally known to
me or 0 has produced a Florida driver's license or 0 as
identification.
NOTARY PUBLIC
Printed Name:
Commission No.
My Commission expires:
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CBR DEVELOPMENT I, LLC,
a Florida limited liability company
By: CBR Communities I, Ltd.,
a Florida limited partnership
Managing Member
By: JMC Communities of Clearwater V, Inc.
a Florida corporation, General Partner
By:
Name: J. Michael Cheezem
Title: CEO
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day of ,
2004, J. Michael Cheezem, as CEO of JMC Communities of Clearwater V, Inc., a Florida
corporation, the General Partner of CBR Communities I, Ltd., a Florida limited partnership, the
Managing Member of CBR Development I, LLC, a Florida limited liability company, who is 0
personally known to me or 0 has produced a Florida driver's license or 0
as identification.
NOTARY PUBLIC
Printed Name:
Commission No.
My Commission expires:
Development Agreement
Page 41
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CBR DEVELOPMENT II, LLC,
a Florida limited liability company
By: CBR Communities II, Ltd.,
a Florida limited partnership
Managing Member
By: JMC Communities of Clearwater VI, Inc.
a Florida corporation, General Partner
By:
Name: J. Michael Cheezem
Title: CEO
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day of ,
2004, J. Michael Cheezem, as CEO of JMC Communities of Clearwater VI, Inc., a Florida
corporation, the General Partner of CBR Communities II, Ltd., a Florida limited partnership, the
Managing Member of CBR Development II, LLC, a Florida limited liability company, who is 0
personally known to me or 0 has produced a Florida driver's license or 0
as identification.
NOTARY PUBLIC
Printed Name:
Commission No.
My Commission expires:
Development Agreement
Page 42
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EXHIBIT A
F:~mcll1unter'City Dewlopment Agt. 7 .doc
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EXHIBIT A
Legal Description of Controlled Property
SOUTH BLOCK
Lots 1 - 13 and 49 - 56, Clearwater Beach Park, as per plat thereof recorded in Plat Book 10, Page
42, of the Public Records of Pinellas County, Florida.
Lots 43 through 48, Lots 65 through 71, and the South 14.75 feet of Lot 64, CLEARWATER BEACH
PARK, as recorded in Plat Book 10, Page 42, of the Public Records of Pinellas County, Florida.
NORTH BLOCK
PARCEL 1:
THAT PART OF TRACT A OF A RE-SUBDIVISION OF BLOCK 10 AND 11, AND LOTS 2 TO 15,
INCLUSIVE, BLOCK 9, OF THE REVISED MAP OF CLEARWATER BEACH, AS RECORDED IN
PLAT BOOK 19, PAGE 96, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA,
DESCRIBED AS FOLLOWS:
BEGIN AT THE SOUTHEAST CORNER OF THE SAID TRACT A AS SHOWN AS 3.68 ACRES,
TO THE POINT OF BEGINNING, BEING A POINT AT THE INTERSECTION OF THE NORTH
LINE OF BA YMONT STREET, AS SAID BA YMONT STREET IS SHOWN ON SAID RE-
SUBDIVISION OF BLOCKS 10 AND 11 AND LOTS 2 TO 15, INCLUSIVE, BLOCK 9 OF THE
REVISED MAP OF CLEARWATER BEACH, WITH THE WESTERLY LINE OF MANDALAY
ROAD, AND RUN THESE N 20045'00" E, 182.23 FEET; THENCE N 01044'00" E, 110.51 FEETTO
THE CENTERLINE OF AMBLER STREET, SAID AMBLER STREET IS SHOWN AND DEDICATED
AS A PUBLIC STREET IN THE REVISED MAP OF CLEARWATER BEACH, AS RECORDED IN
PLAT BOOK 11, PAGE 5, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA;
THENCE WEST ALONG THE CENTERLINE OF SAID AMBLER STREET 420.00 FEET, MORE
OR LESS, TO THE WATER OF THE GULF OF MEXICO; THENCE IN A SOUTHERLY
DIRECTION ON A MEANDERING LINE ALONG THE WATERS OF THE GULF OF MEXICO,
321.00 FEET, MORE OR LESS, TO-THE CENTERLINE OF SAID BA YMONT STREET; THENCE
EAST 385.00 FEET, MORE OR LESS, ALONG SAID CENTERLINE OF BA YMONT STREET TO A
POINT 40.00 FEET SOUTH OF THE POINT OF BEGINNING; THENCE NORTH 40.00 FEET TO
THE POINT OF BEGINNING.
PARCEL 2:
THE NORTH 20.00 FEET OF VACATED AMBLER STREET LYING WEST OF THE EAST LINE OF
LOT 9, PROJECTED SOUTH AS SHOWN ON THE PLAT OF MILLER'S REPLA T, AS RECORDED
IN PLAT BOOK 26, PAGE 17, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA.
PARCEL 3:
LOT 1 AND 10 AND THE SOUTH 80.00 FEET OF LOT 9 OF MILLER'S REPLA T, AS RECORDED
IN PLAT BOOK 26, PAGE 17, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA.
Development Agreement
Page 44
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EXHIBIT B
F;~mc\hunter\Cil:y Oe~lopment Agt.7.doc
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EXHIBIT B
Project Description
Developer proposes to redevelop the Project Site with a resort development to include related
amenities, pedestrian walkways, streets, parking and infrastructure improvements. The Project shall
include a nine-story resort hotel with not less than 240 rooms and not more than 260 rooms (the
Hotel Phase); a fifteen-story condominium (the Residential Tower Phase) and a four-story
condominium and not more than 11,000 square feet of on-grade retail (the Residential/Retail
Phase).
The Hotel Phase will include approximately 50 for sale condominium-hotel suites located on the top
two floors, which are included in the overall hotel room count as described above. The Hotel Phase
will also include a minimum of 10,000 sf of meeting space, a minimum of 11 ,000 sf for Spa, Health
Club, and Beach Club, a full-service restaurant, lounge, two swimming pools, a kids wading pool,
pool grill, and other amenities associated with a beachfront resort. The building height for the Hotel
Phase will not exceed 100 feet.
The Residential Tower Phase includes one fifteen-story building with a height not to eX,ceed 150
feet.
The Residential/Retail Phase includes one four-story building with a height not to exceed 50 feet.
The retail will be located on the ground level of the four-story building. The Residential/Retail Phase
will not exceed 11,000 sf of retail space, not more than 3,000 sf of which may be restaurant.
The Residential Tower Phase and Residential/Retail Phase shall collectively have no more than 120
dwelling units.
As provided for in this Agreement, Developer, and/or its affiliates, will carry out the redevelopment of
the Project Site by purchasing all of the land within the Project Site, preparing project plans and
specifications, obtaining approvals by governmental authorities necessary for development of the
Project, constructing various private improvements on the Project Site, and developing the Project
as a unified and integrated project.
Development Agreement
Page 46
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EXHIBIT B-1
F:~mcVlunter'City Dewlopment Agt.7.doc
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EXHIBIT B-1
MINIMUM QUALITY STANDARDS
The Development Agreement ("Agreement") between the City of Clearwater, Florida (the "City") and
CBR Development I, LLC ("Developer") provides for the allocation of one hundred and forty-one
(141) resort hotel units from the Beach by Design density pool ("Density pool") to the site on which
the Developer anticipates building the project described in the Agreement (the "Project Site"), which
project is to contain, among other things, a minimum of 240 hotel units within a quality resort hotel
(the "Hotel"). Beach by Design establishes physical, functional and operational requirements for a
proposed development to be eligible for an allocation of resort units from the Density pool. The
allocation of the resort hotel units to the Project Site represents a significant economic incentive for
the development of the Hotel.
The purpose of this Exhibit is to establish:
1) minimum quality standards for the proposed Hotel;
2) a process for assessing compliance with the minimum quality standards; and
3) an enforcement mechanism in the event that the Developer shall fail to comply with the
minimum quality standards.
MINIMUM QUALITY STANDARDS
The City and the Developer agree that there are two (2) alternative ways in which the Developer
may satisfy the quality requirements of Beach by Design (the "Minimum Quality Standards"):
1) Membership in (a) the AAA and obtaining and maintaining a minimum quality rating of at
least four (4) diamonds; or (b) Mobile Travel Guide ("MTG") and obtaining and
maintaining a minimum quality rating of at least four (4) stars; or (c) such other travel
marketing and rating service as the City reasonably approves ("Other Rating Service")
and obtaining a quality rating comparable to the AAA and MTG ratings described in (a)
and (b) of this subparagraph;
-or-
2) Membership in (a) the AAA and obtaining and maintaining a minimum quality rating of at
least three (3) diamonds; or (b) membership in MTG and obtaining and maintaining a
minimum quality rating of at least three (3) stars, and in addition to (a) and (b), inclusion
in the Hotel upgraded improvements and facilities as described hereinafter.
The City agrees that the Developer would satisfy the upgraded improvements and facilities
requirement by providing twenty-five percent (25%) of the total number of AAA four (4) diamond
quality criteria for: i) exterior, ii) public areas; iii) guestrooms; iv) guestroom amenities; and v)
bathroom as described in AAA, Lodging Requirements & Diamond Rating Guidelines (the most
current edition as of the date of issuance of the building permit for the Hotel).
Alternatively, the City agrees that the Developer may satisfy the upgraded improvements and
facilities requirement by substantial compliance with attached schedule of "Upgrade Hotel Criteria".
Development Agreement
Page 48
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COMPLIANCE ASSESSMENT
Initial rating period
As soon as is reasonably possible after a final Certificate of Occupancy for the Hotel is
issued by the City ("CO"), the Developer shall apply for membership and inspection by AAA, MTG or
Other Rating Service (the "Hotel Rating Service"), such that an inspection by the Hotel Rating
Service would be reasonably expected to occur within twelve (12) months following the issuance of
the CO ("Initial Inspection Period"). Upon receipt of the report issued by the Hotel Rating Service
("Rating Service Quality Report"), the Developer shall immediately deliver a copy of the rating report
to the City.
. In the event that the Hotel Rating Service does not or is unable to inspect the Hotel within the
Initial Inspection Period, Developer shall use reasonable diligence to obtain an independent quality
assessment of the Hotel from a qualified hotel/resort industry expert ("Independent Quality
Assessment") within ninety (90) days after the issuance of the CO. In the event the Developer fails
to deliver a qualified Rating Service Quality Report or a qualified Independent Quality Assessment to
the City within ninety (90) days after the first anniversary of the CO, the City may at the Developer's
expense, obtain a written opinion of an independent expert in the hotel/resort industry with regard to
the compliance of the Hotel with the Minimum Quality Standards established in this Exhibit.
Maintenance and Monitoring of Compliance with Minimum Quality Standards:
1. The Developer shall maintain compliance with the Minimum Quality Standards for a period of
ten (10) years commencing upon issuance of the CO.
2. In the event that the initial rating of the Hotel equals four (4) diamonds, four (4) stars or the
equivalent with an Other Rating Service or better, maintenance of such rating shall constitute full
compliance with the Minimum Quality Standards.
3. In the event that the initial rating of the Hotel equals three (3) diamonds, three (3) stars orthe
equivalent with an Other Rating Service, and the Developer has included in the Hotel the required
upgraded improvements and facilities as described above, the maintenance of such rating shall
constitute compliance with the Minimum Quality Standards. On the fifth anniversary ofthe issuance
of the CO, if the most recent Rating Service Quality Service Quality Report does not address
compliance with the upgraded improvements and facilities requirement established in this Exhibit
(the "Upgrade Requirement"), the Developer shall obtain a written opinion from a qualified
hotel/resort industry expert that the Hotel continues to meet the Upgrade Requirement. If the
Developer fails to deliver a qualified opinion of compliance with the Upgrade Requirement, the City
may at the Developer's cost, obtain a written opinion of an independent expert in the hotel/resort
industry with regard to the compliance of the Hotel with the Upgrade Requirement.
FAILURE TO COMPLY
In the event that a Rating Service Quality Report, an Independent Quality Assessment or the
opinion of an independent expert in hotel/resort industry reveals that the Hotel does not comply or
no longer complies with the Minimum Quality Standards established in this Exhibit or the Developer
fails to provide the City with a Rating Service Quality Report or an Independent Quality Assessment
or expert opinion, or the Hotel Rating Service that previously rating the Hotel has given notice stating
that such service has downgraded the Hotel's rated to a lower rating level ( " Rating Downgrade
Development Agreement
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Notice"), the City shall notify Developer of default in a writing which details identifying the nature of
the default(s) ("City Quality Default Notice").
If the default(s) described in the City Quality Default Notice are based upon a Rating
Downgrade Notice, Developer shall have that period of time given to Developer by the downgrading
hotel rating service to dispute or effectuate any cure required to restore the Hotel to the Minimum
Quality Standard and to present to the City reasonable evidence that Developer has either prevailed
in its dispute of the default(s) or has effectuated a cure of the conditions upon which the default is
based.
If the City Quality Default Notice is based on any basis provided for in this Exhibit other than
a Rating Downgrade Notice, Developer shall have ten (10) days to notify the City as to whether the
Developer intends to dispute the Default Notice. If the Developer does not notify the City within ten
(10) days of its intent to dispute the Default Notice, the Developer shall have thirty (30) days to cure
the default, or in the event that this is not reasonable possible to cure the default within thirty (30)
days, the Developer shall submit a sworn statement describing the steps necessary to cure the
default and to the time period necessary to cure the default and the Developer shall cure the default
within the stated period. In the event that the Developer disputes the Default Notice, the dispute
shall be resolved through expedited arbitration pursuant to the Agreement and in the event that the
Developer's dispute is resolved in the favor of the City, the Developer shall then cure the default
within thirty (30) days after resolution of the dispute or such longer period as may reasonably be
required as provided above.
In the event that a City Quality Default Notice was based on a failure to maintain compliance
with the Upgrade Requirement, the Developer shall obtain a written opinion from a qualified
hotel/resort industry expert that the Hotel continued to meet the Upgrade Requirement every two (2)
years after the default is cured until the expiration or termination date of the Agreement.
Notwithstanding anything contained in this Agreement to the contrary, it shall not be
considered a default under this Agreement if the Developer must make modifications or take actions
to restore the Hotel to the Minimum Quality Standard where such modifications or action to be taken
requires the alteration of structural or architectural design elements of the Project which were
approved by the City in connection with the construction of the Project or where the cost of such
modifications or actions, including any debt service incurred by the Developer in connection
therewith, cannot be recovered over the useful life of the item to be modified, as reasonably
determined by the City and the Developer.
REMEDIES UPON EVENT OF DEFAULT
Upon the occurrence of an Event of Default which is not cured within the applicable grace or
cure period, Developer shall be subject to a daily fine equal to Two Thousand and Five Hundred
Dollars ($2,500.00) payable to the City for each day that the defaults enumerated within the City
Quality Default Notice at issue remain uncured provided, however, that the maximum fine shall not
exceed One Million Dollars ($1,000,000).
In the event that an Event of Default occurs, the accumulated fines shall be a lien against the
Hotel component of the Developer's Property, which may, at the City's sole discretion, be enforced
through a foreclosure proceeding.
Development Agreement
Page 50
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UPGRADE HOTEL CRITERIA SCHEDULE
I. EXTERIOR
Curb Appeal: The combination of all exterior elements provides an impressive well-integrated and
excellent level of curb appeal. Excellent variety of landscaping professionally planned and
manicured. Impressive architectural features well-integrated into the surrounding area. Exterior
lighting to enhance landscaping and building architectural features.
Parking: Lighting fixtures reflect characteristics of the design of the property, physical evidence of
added security exists; excellent overall illumination.
II. PUBLIC AREAS
Furnishings and Decor. Upscale, well-appointed, and in the theme of the property; high degree of
comfort, featuring professionally fitted coverings, and abundant variety of live plants or unique dried
floral arrangements.
Floor Coverings: Excellent quality carpet, wood, marble, or granite floors with unique area rugs.
Illumination: Light fixtures are well-appointed and of an upscale design that complements the
overall theme of the property; multi-placement provides overall excellent illumination.
Signage: Design is well-defined in harmony with the theme of the property.
Lobby/Registration Area: Spacious registration area; upgraded luggage carts; recognizable
guest-service and bellstand.
Miscellaneous: Multiple recessed phones with note pads and pens, located away from traffic areas.
Pressing is available at specific times.
Restaurant and Dining Facilities: Upscal-e,-full-service restaurant; separate lounge or bar area.
Recreational Facilities: Swimming pool area is well-appointed with upscale design elements and
an excellent quality and variety of pool furniture and hot tub. Food and beverage is available
poolside. On-site exercise facility with state of the art equipment; lockers and dressing area
provided.
Meeting Rooms: Variety of well-appointed meeting rooms with upscale design elements.
Audiovisual equipment available.
Restroon.s: Upscale facilities appropriate for the number of meeling rooms.
Additional Recreational Facilities: Excellent variety of additional offsite recreational activities is
available on site or arrangements are made for off-site services.
Sundries and Other Shops: Upscale gift shop.
Development Agreement
Page 51
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III. GUESTROOMS
Free Floor Space: Well-proportioned rooms with comfortable seating area with obvious degree of
spaciousness allowing increased ease of movement for guests.
Floor Coverings: Excellent quality carpet, wood, marble, granite or other high-end stone floors.
Clothes Hanging Space: Fully enclosed hanging space with at least eight open-hook wood
hangers.
Clothes Storage Space: Sufficient space for two pieces of luggage; upgraded racks or benches.
Furniture: Excellent quality furnishings, veneer finish with solid wood insets.
Heating/Air Conditioning: Central system with room thermostat control.
Illumination: Excellent overall illumination provided; freestanding fixtures in appropriate places.
Television Placement: Television located in closed armoire or flat screen monitor.
Balconies: Over 75% of rooms with balcony.
IV. GUESTROOM AMENITIES
Multiple or cordless telephones. High-speed Internet access. Easily accessible data ports. Desk.
Enhanced guest-service directory in folder. Upgraded stationary. Framed or beveled full-length
mirror. Full-size iron and ironing board. Mini-Bar or refrigerator. DVD players or premium movie
channels, oversized television with remote control. Clock radio.
V. GUEST BATHROOMS
Countertops: Excellent quality utilizing granite, corian or marble with ample surfaee area:
Wall and Floor Coverings: Excellent quality, including ceramic tile, marble or granite flooring.
Free Floor Space: Excellent size bathrooms affording guests increased ease of movement and
comfort.
Amenities: Excellent quality plush towels, oversized. Facial tissues of excellent quality in
decorative container. Freestanding hair dryer. Bathroom area rug. Make-up mirror.
VII. SERVICE
Room service available 16 hours per day. Valet parking is available. Baggage assistance is
automatic. Concierge service available. Morning newspaper delivered to room door. All associates
are appropriately attired with fine uniforms and nameplates. Same day cleaning and pressing
available 5 days a week.
Development Agreement
Page 52
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EXHIBIT B-2
Development Agreement
Page 53
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J; \S3\P,opolo\Dw9S\LS\S3_997-2S0-LS2.dw9 - Sep 16. 200< 0 3,39pm - mbeoch
THIS IS HQI A SURVEY
THERE MAY BE ADDITIONAL RESTRICTIONS AFFECTING THIS PROPERTY THAT
""AY BE FOUND IN THE PUBLIC RECORDS OF THIS COUNTY.
THIS LEGAL DESCRIPTION AND SKETCH WAS PREPARED WITHOUT THE BENEFI r
pF A TITLE POLICY.
~EARINGS ARE BASED UPON, SEE SKETCH AND LEGAL DESCRIPTION
LEGAL DESCRIPTION:
A parell of land being 0 portion of Section. 5 and e. Townthip 29 South. RanVI 15 EOlt. Pinellos County,
F"lorida. baing more parllcularly dl.crib.d aa 10110...:
COt.M:NCE al Ihl Soulh...1 corn.. 01 Tract A, .A RE-SUB OF BLOCKS 10-11 AND LOTS 2 TO IS INCL. BLOCK 9 OF THE
REVISED MAP OF CLEARWATER BEACH-, a. recorded in Plot Book 19. pog' 96 of the Public Record. 01 Pinallas
Count)'. Florida; l'hence N21-31'34-E. along the [Olt lin. 01 .aid Tract A. 10m. being 'he w..t RI9ht-af-Way
IIn. at Mandala, Avenue, occordlnv to .oid .A RE-SUB OF BLOCKS 10-11 AND LOTS 2 TO IS INCl. BLOCK 9 OF THE
REVISED MAP OF CLEARWATER BEACH-. (baing the bali, of baorinCJI 'or this d.,cription) for .82.33 t..t; thlnee
continue alon, laid Ea.t line at Tract A. lome b,.n9 laid W,.t Right-of-Way lint ot Mandala, Av,nuI,
NOZ.'U"34-E. for 1t0.50 t.,t t. Ih. pain. of inhr'lction with thl South Right-otwWa, line of Ambl.r Str.et.
according to -WILLER'S REPLAT., 01 r.cordld In Plot Book Z6. pOCjJI 17 of the Public Ricard. of Plnllla. Count,.
Florida: Ih...c. N89-0S' 59-W, olonl) laid South Ri9hl-a'-Wo, lin. 0' Ambler Slr..I. lor 160.00 t.., to thl palnl
of int.r..ctio.. with Ih. Southlrl, 1.11".lan or 'hi Ea.1 I;nl 01 Lot 9. .aid -MILLER'S REPLAT-: thence
NOZ-"I'~"-E. alon, .ald Southlrl, 1.I.nlian 01 th_ Ea.t lin_ ot Lot 9, and .aid Ea.t lin. at Lot 9.
rl'plctiwlf,. for 100.05 t..t '0 thl point ot inter..ction .i." 'he North line at the So.th 80.00 f..t 01 said
lot 9: thine. N89-Q6' 59-W, alan, .aid North I in, a. Ih. South 60.00 ,..1 a. Lot 9, for 60.00 h.t to the point
of Int.rJ.ction with thl WI.t Hnl at laid Lot 9: th.nc. N02-4I'34-E, along .aid w..t Iln. of Lot 9, 'or 6.96
t..t to the North...t corner of .aid Lol 9: Ihenc. N89.06' 59-W, along the North lin. of lot fO. .aill -MILLER'S
REPLAT-. the North lint Of Lot I. toid -MILLER'S REPLAT-. and the W..f.rl, ,.fan.ion of .aid North line of Lof
I, r..pectiv.I,. 'or 389.38. to THE POINT OF BEGINNING; thlnce centinu. along .aid We.tuly .xtenllon of .old
North lin. of Lot I. 589-06'59-E, tor 182.0' "et 'he pOinl of Int.r..ctto.. ...Ith .I.walion O.6Z f.... North
Amu;can V.rtical Datum of 1988 (HAVO 19881, .ome bein9 the pain' el intu..ction with Ih. Mlan High Wat.r
line at the Gult of MI.leo a. r.cord.d with th. Oepartment e' Environmental Prot.ctlon Mlan High Wat., Surve,
til, number 3429: th.nce .h. following nine (9) cou"" along .aid Ilevollon 0.62 f..t. North American
V.rtical Datum at 198e (NAVe 1988). .oml b.lng taid Mlon HiCJh Waltr Linl at the Gulf of Mexico: i I) the..c.
S040S9'06.W. tor 4O.B9 rut; (2) lhonc. SOS043'SO'W. tor SI.84 t..t: (3) th.nc. SO~0~2'49.W, tor ~1.04 ...1;
(4) 'h.nc. SDs03S'41.W. for 49.79 ...1; (SI th.nc. S07.36'31'W. I.r 47.2B ...1; (6) th.nc. S060"'33'W, for
49.96 t..l; (7) Ihenc. 509.02'38.W, tor 51.S4 f..l; (8) thonc. SOS.S3'20'W. fa, 49.11 ...1; (91 fhenc.
S08-23'S'.W. for 42.98 fe.t 10 the point o' infer..ction wilh thl W..t.rl, ..lIn'lon of thl clnterlln. of
Bo,mant Str..l. according to .oid .A RE-SUB OF BLOCKS 10-11 AND LOTS 2 TO I~ INCL. BLOCK 9 OF THE REVISED MAP
OF CLEARWATER BEACH-: Ihlnce I.awine) el.walion 0.62 ...t, Nerth American Vertical Dohm 01 1988 (NAVD 1988),
589-26'04-E. along .aid W'lt.rly e.ltn.ion at tt'l. e.ntertin. 0' Baymon' Str..t and laid c.nl,rll,.. 01 Ba,mont
Slre.t. r..p.ctivII" tor 204.02 fe.t: th.nc. 00'-42'16-[ I.oving .aid We.t.rl, extenllon o' the c.nltrltn' of
Baymont S'r..t ond .aid c.nt.rlin. of Boymont Stre.t. r..p.etiv.I,. for 431.54 f..t to THE POINT Of"
BEG INN I NG.
Contajnin~ 82.466 .quar. f,.t or 1.993 ocr.., mort or I....
Error of closure: 0.0108 f..t (Jw()[1
SEE SHEET I fOR LEGAL DESCRlrr:O!',
SEE SHEET Z FOR SKETCH
NOTE: THIS LEGAl. DOCllIPTlOH AHll SKETCH W.... PREPARED WITH Tft' BEHEFIT 01' THAT CERTAIN BOUNDARY SURVtY TITLED .BOUNDAIlY S\JRVERY AN) MEAN
HIGH WATER LINE SURVEY.; PREPAIlED BY FlORIDA DESiGN CONSULTANTS. 'He.. Jot! ........ER '9Y-ZSO. THE GEOMETRY PERTAINING TO THE PARCEL OF
LAND BEiNe DESCRIBED HEREt" (THE OE:$CRIPTIONI IS SOlELY BASED UPON THE G[eJ,IETRY AS DESCRIBED ON THE RECORDED OOCLUENTS AS NOTED HEREIN
AND 1$ SUBJECT TO AN ACCLMATC.'lElO BOUNDARY SURYEY.
PREPARED FOft: JMC COMMUNITIES
SHEET DESCRIPTION:
CLEARW A TER BEACH WEST PARCEL
SCALE: DA 1E: OAA"Mf: CAlCro: CH(CK[O:
NONE 09116/04 GEH 5MB 5MB
..K)8 No.: [PH: SECOON, TO'MISHIP: RANCE:
997-250 53 5 8 8 29 S 15 E
~ FLORIJA DESIGN CONSUL rANTS, INC.
ENGINEERS, ENVIRONMENTALISTS
f] SURVEYORS 8 PLANNERS
3030 Starkey Blvd.
Nt. Port Rlc:h,y. Florida 3465:S
(727) 849-7S88
Certificate of Authorization: LB 6707
Stat8 of Florida
NOT VALID WITHOUT THE SIGNATURE
AND THE ORIGISAL RAISED St:AL OF A FLORIDA
~'-:a'"
SAMUEL MARK BEACH
PROfESSIONAL SURVEYOR AND MAPPER
LICENSE NUMBER LS 6261
COCoo.....tOht 2004 norida Deslon Consultants. Inc. Drawltlos ond concrots me.,. not be used or reproduCl!d Without written permISSIon.
Sheet I
of 2
Development Agreement
Page 54
ADOPTED
F :~mc\hunter\C.y Oewlopment Agt. 7 .doc
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J: \5J\Propolo\Dwg.\lS\5J_997-25D-lS2.dwg - Sop 16. 2004 0 J: 22pm - 90ill
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THIS IS HQI A SURVEY
HERE MAY BE ADDITIONAL RESTRICTIONS AFfECTING THIS PROPERTY THAT
AY BE FOUND IN THE PUBLIC RECORDS OF THIS COUNTY.
HIS LEGAL DESCRIPTION AND SKETCH WAS PREPARED WITHOUT THE BENEFIT
F A TITLE POLICY.
EARINGS ARE BASED UPON, SEE SKETCH AND LEGAL DESCRIPTION
WESTERLY EXTENSION Of
THE N UNE Of LOT 1
I
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-'
N89'06'59"W
182.03'
I
:] 10.00' PEOCS1ll1AN EASEMENT
_[__~~~~~~:~_7~
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TOTAL AREA=-
82,~64 SQ fT
OR 1.89 AC, l.lOL
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<0
..,
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-'
25.00' EASOAENT FOR smEET
I PURPOSES PER DB 1550. PG 629
o _-1______________________
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S89-26'04"E
204.02'
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WESTERLY EXTENSION Of THE
CENTERUNE BAYMONT ST
I
SEE SHEET I FOIl LEGAL DESCRI,TION
SEE SHE~T 2 FOR SKf.TCH
I
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N UNE Of LOT 10
NW COR LOT 9
LOT 4 N LINE Of THE S
80 fEET Of LOT 9
lOT 1
S R/W AYBlER ST
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N89116.59-W
160.00'
rWEST UNE mACT A
TRACT A
A RE-SUB Of BLOCKS
10-11 AND lOTS 2 TO
15 INCl. StOCK 9 Of
THE RElolsm IIAP Of
ClEARWATER BEACH
PH 19, PG 96
:"
. -
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;id
N-
O-
Z
CH[CK[C>
5MB
RANCE:
15 E
~ FLORIDA DESIGN CONSI.A.. TANTS, INC.
ENGINEERS, ENVIRONMENTALISTS
11 SURVEYORS Ii PLANNERS
J030 Slork., Blvd.
New Port Rlcl\ty, Flc)(ida 3465~
(727) 849.7588
Certificote of Authorization: LB 6707
state of Florldo
LINE TABU
BEARING
N02'41"34.E
S04"59'06"W
S05.4J'SO"W
S05"52' 49.W
S05.35'41'W
S07'36'31-W
50611'3 .w
S09'02'J8"W
S05"5J"20'W
SOB'23'56"W
~GTH
&.9 '
40. '
51.84'
51.D4'
49.7 '
47.28"
49.96'
51.54.
49.1"
4 .9
17 ... 1-
g Ii~~~
I!!Jl.t
.w !! <> fila!
... ~if~'"
I; t;:/f1 ~!!
!"} J~~!:J
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UNE
11
l2
LJ
l4
L5
l6
l7
l8
19
110
~:
POC - POINT Of COIIIIENCEIIENT
POB - POINT Of BEGINNING
SEC - SECTION
COR - CORNER
R/W - RIGHT Of WAY
ST - STREET
so - SQUARE
FT ~ FEET
AC - ACRES
~OL - ~ORE OR LESS
PG - PAGE
PB - PLAT BOOK
DB - OlIO BOOK
ORB - ornclAl RECORDS BOOK
I<<lTE: THIS LEGAl OCSCRIPTlON ANO SKnCH WAS PREPARED WITll THE B[NEFlT OF T....T CERUIN BOUNllARY SIJAVEY TITL[D .BOUNDARY SURVERY AND I€AN
HIGH WATER LINE SIJlVEY': PREPARED BY FLORIOA DESIGN CONS~UI<TS. INC.. JOB NlMlER 997-Z00. THE GEa.€TRY PERUINING TO THE PARCEl. OF
LAND BEING DESCRIKO HEREIN (Tf-€ DESCAIPTlOH) IS SOLnv BASED UPON THE GEDETRY AS OESCRIBED ON THE RECOROED DOCt..M.:NTS AS NOTED HEREIN
IS SUBJ CT T AN ACCIJRAT "IElO BOl..IN:.'lART S Y
PREPARED fOR:
POC
SE COR TRACT A
SHE:ET OCSCRPTlON:
JMC COMMUNITIES
I
CAlerc>
CLEARWATER BEACH WEST PARCEL
SCAlE:
I" = 100'
DATE: OIlA"":
09/16/04 GEH
5MB
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Xl8 No.: EPN:
997-250 53
SECTION: TO"M/SHIP;
5 8 8 29 S
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NO T VALID WITHOUT THE SIGNATURE
AND THE ORIGINAL RAISED SEAL OF A FLORIDA
s;Q'~:~::;:'"
SAMUEL MARK BEACH
PROFESSIONAL SURVEYOR AND MAPPER
LICENSE NUMBER LS 6261
ClCop.,.,..ioht 2004 Florida Desio" Consultants. Inc. Ora winos and concepts mov not be used 0( reoroduced Yrithout written permission. Sheet
I
Development Agreement
Page 55
ADOPTED
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F:~mc\hunter'\City Oewlopment Agt. 7 .doc
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EXHIBIT B-3
Development Agreement
Page 56
ADOPTED
F:~mc\hunter"City Dewlopment Agt.7.doc
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J: \5J\ProJ)oto\Dwgs\lS\5J_997-250-lS1.dwg - Sop 16. 2004 0 4,04pm - ghijl
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THIS IS HQI A SURVEY
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THERE MAY BE ADDITIONAL RESTRICTIONS AFFECTING THIS PROPERTY THAT
MAY BE FOUND IN THE PUBLIC RECORDS OF THIS COUNTY.
THIS LEGAL DESCRIPTION AND SKETCH WAS PREPARED WITHOUT TilE BENEFIT
OF A TITLE POLICY.
BEARINGS ARE BASED UPON. SEE SKETCH AND LEGAL DESCRIPTION
LEGAL DESCRIPTION:
I
A porco I of land boing 0 portion of Sections 5 ond 6. Township 29 South. Range 15 East, Pinollos
Counly. Flor ida, boing more parlicu/orly descrobed os follows:
I
CCM.t:NCE 01 the Soulheasl corner of Trael A, "A RE-SUB OF BLOCKS 10-11 AND LOTS 2 TO 15 INCL. BLOCK
9 OF THE REVISED MAP OF CLEARWATER BEACH., os recorded in Plof Book 19, pogo 9S of the Public
Rocord$ of Pinellos Counly. Florida; Ihence NZlo37'340E. along Ihe Eosl I ine of said Trocf A, some
being fhe Wesf RighI-aI-Way line 01 Mond%y Avenue. according 10 said .A RE-SUB OF BLOCKS 10-11 AND
LOTS 2 TO 15 INCL. BLOCK 9 OF THE REVISED MAP OF CLEARWATER BEACH. (BEING THE BASIS OF BEARINGS FOR
THIS OESCRIPTlON), lor 162.33 teel; Ihence NOZ641'34.E along said Eosl line 01 Trocl A. some being
said Wesl Righl-ol-Woy line 01 Mandalay Avenue. for 110.50 leel 10 the poinl of inltrseclion wilh
Ihe Soufh Righi-aI-Way line of Ambler SIreel. according to "MILLER'S REPLAT., os recorded in Pial
Book 2S, page 1701 Ihe Public Records of Pinellos Counly. Florida; Ihence N8900S'59.W. along said
Saulh Righl-al-Woy line 01 Ambler SIre.l. for ISO.OO leel 10 Ihe poinl of interseclion wilh Ihe
Soulherly exlonsion of Ihe Eosl line of LoI 9. said .MILLER'S REPLAT"; Ihence NOZ04I'34"E. along
$oid Southerly extension of Ihe Eosl I ine of Lol 9. and said Eosl line 01 Lol 9. respectively, lor
100.05 leel 10 Ihe poinl 01 inlerseclion wilh Ihe North line 01 the Saulh 60.00 leet 01 said Lol 9;
Ihence N89006'59.W. along said Norlh tine 01 Ihe South 60.00 loot 01 Lol 9. for 60.00 teel 10 the
point 01 inltrsection wllh Ihe Wesl line 01 said LoI 9; Ihence N02041'34.E, along said Wesl line 01
Lol 9. lor 6.96 teel 10 Ihe Norlhw..1 corner 01 soid Lot 9; Ihenc. NB9006'S9.W. along Ihe Norlh line
01 Lol 10. said .MILLER'S REPLAT.. Ih. North lin. 01 Lot I. soid .MILLER'S REPLATo, and Ihe Weslerly
extension 01 said Norlh I ine of Lot I. respeclively. lor 199.15 10 Ihe POINT OF BEGINNING; Ihence
S03042'IS.W leaving soid Norlh I ine of Lol 10. said "MILLER'S REPLAT.. Ihe Norlh I ino 01 Lol I. said
.MILLER'S REPLAT.. and Ihe Wes'e,ly exlension 01 soid Norlh line of Lot I, respectively. lor 430.48
I.el 10 Ihe inlerseclion 01 Ihe Weslerly exlens,on of Ihe Cenlerl ine Boymonl Sfreel ; Ihence
NB9026'04"W along said Westerly extension 01 Ihe Cenlerline Boymonl Slreet. lor 190.29 leet; thence
003'42' IS.E Iloving said Westerly extension of the centerline of Boymonl Slreel. lor 431.54 teel 10
Ihe interseclion 01 the Weslerly exlenlion 01 Ihe centerline at Boymonl Slreel; thence along said
Westerly Extension of the Soulh I ine of Ih. North Ambler Str.el S69'06'S9.E. lor 190.23 leet 10 Ihe
POINT OF BEGINNING.
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Con t a i n in g 81.894 'qu a r, r ee tor 1.880 a ere s. mo r. 0 r Ie S 5
Error of closure: 0.001 teet (SMB)
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SEE SHEET I FOA LEGAL OESCR I'T ION
SEE SHEET 2 FOA SKETCli
NOTE; THIS LEGAL DESCRIPTION ANO SKETCH WAS PREPARED WITH Tt-E BENEFIT or THAT CERTAIN BOUNDARY SURVEY TITLED .80UN()ARY SURVERY ANJ aEAN
HU.H ....TER LINE SURVEY-; PREPARED 8Y fLORIDA DESIGN CONSULTANTS. INC.. JOB Hl.JI6ER 997-250. THE cEOMElRY PERTAIHI!oK; TO THE PARCEL OF
LANO BEING DESCRIBED HEREIN CTHE OE$CRIPTIOH~ IS SOLELY BASEO UPON THE GEo.E:TRY AS OESCRI8EO ON THE RECORDED DOClNEHTS AS NOTEO HEREIN
....IS SUlIJECT-T'n'AN .CCUR....FI.'n BOUND""V SURvn.
I
PREPARED fOR:
JMC COMMUNITIES
S>1EET OESCRI'TION:
CLEARWATER BEACH EAST PARCEL
I
SCAli:
NONE
DATE: DRA""':
09116104 GEH
CALCED:
5MB
CHECKED:
5MB
JOB No.; EPN:
997-250 53
SEcnQN:
588
TOWNSHIP:
29 S
RANG[:
15 E
I
fE FLORDA DESIGN CONSlA.. rANTS, INC.
ENGINEERS, ENVIRONMENTALISTS
J1 SURVEYORS a PLANNERS
3030 Starkey Blvd.
NI. Pori Richey, Florida 34655
(727) 649-7568
Certificate of Authorization; LB 6707
State af Florida
NOT VAliD WITHOUT THE SIGNATURE
AND THE ORIGiNAL RAISED Sf AI. OF A FLORiDA
L1CENS~D SURVEYOR Arll) )1PPER.
W It~~ M
SAMUEL MARK BEACH
PROFESSIONAL SUIlVEYOR AND MAPPER
L~ENSE NUMBER L3 62~
I
CCOP~;fl9ht 2004 norKjo Oesuiln Consultants, In<:. Orcwlt1Qs end concepts may not be used or reproduced Without wmtten perml.,."on.
Sheet L of L
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Development Agreement
Page 57
ADOPTED
F:~mcVlunter'Cily DelJelopment Agt. 7 .doc
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J; \5J\Propcto\Dw9S\LS\5J_997-250-lS1.dwg - Sop 16. 2004 0 .: 04prn - 9",/1
THIS IS HQI A SURVEY
I
THERE MAY BE ADDITIONAL RESTRICTiONS AFFECTiNG THIS PROPERTY THAT
MAY BE FOUND IN THE PUBLIC RECORDS OF THIS COUNTY.
THIS lEGAL DESCRIPTION AND SKETCH WAS PREPARED WITHOUT THE BENEFIT
OF A TiTLE POLICY.
BEARINGS ARE BASED UPON, SEE SKETCH AND LEGAL DESCRIPTION
I
S89"()6'59"E
190.23'
YlESn:RI. Y EXTENSlON Of
TliE H ONE Of LOT 1
LOT J
LOT 4
N
~
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o 50
,...-
100
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10. PEDESl1lIAN EASENEHT
-[-~-~-~~_':'_~~-----
----- -1----------------------
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POC
I SEE SH!:[l I FOR LEGAL DESCRIPTION SE COR TRACT A
~~~~-:J~~~,"",~l ST SEE SHEET Z FOR SKETCH
NOTE: THIS lEGAl.. DESCRlflTlOH AND SKETCH WAS PREPARED WITH Tt-E BENEFIT Of" THAT tERTAIN BOUNDARY SURVEY TInED -BOUNDARY S\.RYERY IJrI) MEAN
HIGH WATER LINE SURVEy.: PREPAllED BY FlORIDA ~SIGN CONSUlTANTS. INC.. JOe MMlER "7-Z~0. THE GE<M:TRY PERTAINING TO THE PARCEL OF
LAHO BEING OESCRIBED HEREIN (THE DESCRIPTION) IS SOLELY BASED UPON THE GEc:J€TRY AS DESCRIBED ON THE RECORDED DOCI.KHTS AS NOTEO H[ftEIN
ANO I S SUBJECT TO AN A T FI ARY SUR Y.
PREPARED FOO:
lDlGlH
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0-
2:
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TOTAL AREA'"
81,892 sa FT
OR 1.880 AC, MOL
~
<010
i--Id
:4" I')
8""
Vl
1,,-
I '!lEST UHE TRACT A TRACT A
A RE-SUB Of BLOCKS 10-11 AND LOlS
2 TO 15 1HCl.. IILOCK t ()f TliE
RE\1SED MAP Of ClEARWAlER BEAOl
PB 19, PG ge
I
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LINE
11
ONE TABLE
BEARING
NOZ.41":l4-
1ft
"'{"
.)...
S
~
<'
~
I
25.00' EASEIolEHT FOR SlREET
[~~~:~~~~~~~-~~._:~~~-
N89"26'04"W
190.29'
JMC COMMUNITIES
SHEET DESCRIPTION,
CLEARWATER BEACH EAST PARCEL
I
SCALE:
r. = 100'
DA IE: DRAWN,
09116/04 GEH
CAlCED:
5MB
CHECKEfr.
5MB
I
..oll No.: ErN:
997-250 53
SECOON: TO't'lt<SIIP:
5 8 8 29 S
RANG(:
15 E
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~ Fl.ORIJA DESIGN CONSLl. TANTS, INC.
ENGINEERS, ENVIRONMENTALISTS
J1 SURVEYORS 8 PLANNERS
3030 Slarkey Blvd.
Ne... Port Ril;hey. Florida 34655
(727) B49.75ee
Certificate of Authorization: LB 6707
State of Florida
NO T V AliI) WITHOUT THE SIGNATURE
AND THE ORlGINf,L P.Al::ED SEAL OF A FLORIDA
s:Q"I~:~'
SAMUEL MARK BEACH
PROFESSIONAL SURVEYOR AND MAPPER
LICENSE. NUMBER LS 626\
I
C>Cop)riqht 200.. Florida Dnign Consultant:!. Inc. Drowing~ and concepts may not be used Of repH)duced withool writtef1 porminion. Sheet _ of ..2-
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Development Agreement
Page 58
ADOPTED
F:~mc\hunter\C1y Dewlopment Agt.7.doc
Development Agreement
Page 59
ADOPTED
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EXHIBIT C
F:'4mc'ilunterICky Dewlopment AQ1,.7 .doc
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BEACH
Development Agreement
Page 60
ADOPTED
EXHIBIT C
Project Sit.
ROCKAWAY ST.
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=~~~t==:=~~===~--_.
!
/
!
!! HOTEL PHASE
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10:
liS!
fill!
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REslbEt-mAL
TOWER' PHASE
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4J~~
9",:r:
(I)....a.
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SAN MARCO ST,
NT .
~
<<(
>-
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..../
*TO BE VACATED
LL
~
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F:~mcVlunter'C1y Oewlopment Agt.7.doc
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EXHIBIT D
Development Agreement
Page 61
ADOPTED
F:~mc\hunter'ICly Development Agt. 7 .doc
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EXHIBIT D
Project Development Schedule
Phase
Commencement
February 1, 2007
Hotel
July 1, 2005
July 1, 2005
July 1, 2006
Residential Tower
Residential/Retail
Completion
July 1, 2007
January 1, 2008
Developer reserves the right to change the commencement order of any phase. ~
commencement dates are subject to marketing conditions and permitting timer
Development Agreement
Page 62
ADOPTED
dfl~1 fIR' DI()~
~b])
F:~mcVlunter'Cly Development Agt.7 .doc
Development Agreement
Page 63
ADOPTED
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EXHIBIT E
F:\jmc\huntercity Development /4IJt.7 .doc
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EXHIBIT E
Covenant Regarding Trip Generation Management Program
DECLARATION OF COVENANTS AND RESTRICTIONS
THIS DECLARATION OF COVENANTS AND RESTRICTIONS is made as of the _ day
of ,200_ by CBR Development I, LLC ("DEVELOPER").
DEVELOPER is the owner of fee simple title to all of the real property described in Exhibit 1
attached hereto and made a part hereof (hereinafter the "Real Property"). The City of Clearwater
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 preliminary design for the revitalization of
Clearwater Beach.
The designation of Clearwater Beach as a Community Redevelopment District provide for
the allocation of bonus resort units as an incentive for the development of destination quality resorts
with a full complement of resort amenities. Pursuant to the designation of Clearwater Beach as a
Community Redevelopment District, the allocation of bonus resort units is subject to compliance with
a series of performance standards, including a requirement that the resort hotel to be developed on
the Real Property implements a trip generation management program to reduce the number of
vehicle trips generated by the used and operation of the Real Property.
The City of Clearwater has granted, by City Commission Resolution passed
and approved on , DEVELOPER's application for an allocation of bonus resort
units pursuant to the provisions of the designation of Clearwater Beach as a Community
Redevelopment District and subject to compliance with the requirements of the designation of
Clearwater Beach as a Community Redevelopment District. DEVELOPER desires for itself, and its
successors and assigns, as owners 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 bonus resort units to Clearwater and the designation of
Clearwater Beach as a Community Redevelopment District, 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 bonus resort units to
DEVELOPER and other good and valuable consideration, the sufficiency of which is hereby
acknowledged, DEVELOPER hereby declares, covenants, and agrees as follows:
1. Benefit and Enforcement. These covenants and restrictions are made for the benefit
of DEVELOPER and its successors and assigns and shall be enforceable by them
and also for the benefit of the residents of the City of Clearwater, Florida, and shall
be enforceable on behalf of the said residents exclusively by the City Commission of
the City of Clearwater.
2. Covenant to Prepare and Implement a Trip Generation ManaQement ProQram.
DEVELOPER hereby covenants and agrees to the development, use, and operation
Development Agreement
Page 64
ADOPTED
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Development Agreement
Page 65
ADOPTED
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of the Real Property in accordance with the provisions of this Declaration.
2.1 Trip Generation ManaQement ProQram. DEVELOPER shall prepare a Trip
Generation Management Program which includes, at a minimum, the
program elements which are set out in Exhibit ~, which is attached hereto
and incorporated herein.
2.2 Implementation. DEVELOPER shall take all necessary and appropriate steps
to implement the approved Trip Generation Management Program and the
selected management strategies.
3. Effective Date. This Declaration shall become effective immediately upon its
recording.
4. GoverninQ Law. This Declaration shall be construed In accordance with and
governed by the laws of the State of Florida.
5. RecordinQ. This Declaration shall be recorded in the chain of title of the Real
Property with the Clerk of the Court of Pinellas County, Florida.
6. Attornevs Fees. DEVELOPER shall reimburse the City of Clearwater for any
expenses, including attorneys' fees, which are incurred by the City of Clearwater 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 the Court.
7. Severabilitv. If any provision, or part hereof, 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.
F;~mcll1unter\C1y Dewlopment Aof,..7.doc
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IN WITNESS WHEREOF, CBR Development I, LLC has caused this Declaration of
Covenants and Restrictions to be executed this day of
,200_.
Signed and sealed delivered
In the presence of:
CBR DEVELOPMENT I, LLC,
a Florida limited liability company
By: CBR Communities I, Ltd.,
a Florida limited partnership
Managing Member
By: JMC Communities of Clearwater V, Inc.
a Florida corporation, General Partner
By:
Name: J. Michael Cheezem
Title: CEO
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day of ,
200_, J. Michael Cheezem, as CEO of JMC Communities of Clearwater V, Inc., a Florida
corporation, the General Partner of CBR Communities I, Ltd., a Florida limited partnership, the
Managing Member of CBR Development I, LLC, a Florida limited liability company, who is 0
personally known to me or 0 has produced a Florida driver's license or 0
as identification.
NOTARY PUBLIC
Printed Name:
Commission No.
My Commission expires:
Development Agreement
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EXHIBIT 1
PARCEL 1:
THAT PART OF TRACT A OF A RE-SUBDIVISION OF BLOCK 10 AND 11, AND LOTS 2 TO 15,
INCLUSIVE, BLOCK 9, OF THE REVISED MAP OF CLEARWATER BEACH, AS RECORDED IN
PLAT BOOK 19, PAGE 96, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA,
DESCRIBED AS FOLLOWS:
BEGIN AT THE SOUTHEAST CORNER OF THE SAID TRACT A AS SHOWN AS 3.68 ACRES,
TO THE POINT OF BEGINNING, BEING A POINT AT THE INTERSECTION OF THE NORTH
LINE OF BA YMONT STREET, AS SAID BA YMONT STREET IS SHOWN ON SAID RE-
SUBDIVISION OF BLOCKS 10 AND 11 AND LOTS 2 TO 15, INCLUSIVE, BLOCK 9 OF THE
REVISED MAP OF CLEARWATER BEACH, WITH THE WESTERLY LINE OF MANDALAY
ROAD, AND RUN THESE N 20045'00" E, 182.23 FEET; THENCE N 01044'00" E, 110.51 FEET TO
THE CENTERLINE OF AMBLER STREET, SAID AMBLER STREET IS SHOWN AND DEDICATED
AS A PUBLIC STREET IN THE REVISED MAP OF CLEARWATER BEACH, AS RECORDED IN
PLAT BOOK 11, PAGE 5, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA;
THENCE WEST ALONG THE CENTERLINE OF SAID AMBLER STREET 420.00 FEET, MORE
OR LESS, TO THE WATER OF THE GULF OF MEXICO; THENCE IN A SOUTHERLY
DIRECTION ON A MEANDERING LINE ALONG THE WATERS OF THE GULF OF MEXICO,
321.00 FEET, MORE OR LESS, TO THE CENTERLINE OF SAID BA YMONT STREET; THENCE
EAST 385.00 FEET, MORE OR LESS, ALONG SAID CENTERLINE OF BA YMONT STREET TO A
POINT 40.00 FEET SOUTH OF THE POINT OF BEGINNING; THENCE NORTH 40.00 FEET TO
THE POINT OF BEGINNING.
PARCEL 2:
THE NORTH 20.00 FEET OF VACATED AMBLER STREET LYING WEST OF THE EAST LINE OF
LOT 9, PROJECTED SOUTH AS SHOWN ON THE PLAT OF MILLER'S REPLA T, AS RECORDED
IN PLAT BOOK 26, PAGE 17, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA.
PARCEL 3:
LOT 1 AND 10 AND THE SOUTH 80.00 FEET OF LOT 9 OF MILLER'S REPLAT, AS
RECORDED IN PLAT BOOK 26, PAGE 17, OF THE PUBLIC RECORDS OF PINELLAS
COUNTY, FLORIDA.
Development Agreement
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ADOPTED
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EXHIBIT 2
TRIP GENERATION MANGEMENT PROGRAM
1. Prior to issuance of the Certificate of Occupancy for the Project, the DEVELOPER shall
implement a Transportation System Management Plan. This Plan shall establish practices,
procedures, and costs/fees for services to reduce the number of trips to and from the site.
Examples of methods, which may be considered are:
a. Guest shuttle services/airport
b. Guest shuttle services/activities
c. Employee shuttle
d. Non-motorized modes for guests
e. Fixed route transit
f. Taxis/demand responsive transit
g. Non-motorized modes for employees
h. Staggered working hours
The plan will address the trip characteristics of resort occupancy, compare and contrast the
generation and reduction methods against non transient units and create a supporting trip
utilization projection for the Beach bv Desion transit proposal from both hotel visitors and
garage patrons. The plan will apply a best methods approach. City and County
transportation programs may also generate additional methods based on special studies or
intergovernmental program funding (County-wide Gulfview Trolley System).
2. Prior to issuance of a Certificate of Occupancy for the Project, the DEVELOPER shall submit
a Hurricane Evacuation Plan to the City. This Plan shall establish practices and procedures
to be implemented when a hurricane watch is established for Clearwater. These practices
and procedures will lead to evacuation of the Project when a hurricane watch is issued for
Clearwater.
Development Agreement
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EXHIBIT F
Development Agreement
Page 69
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F:~mc\hunter'Gity Development Agt.7 .doc
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EXHIBIT F
Covenant Regarding Hurricane Watch Closure
DECLARATION OF COVENANTS AND RESTRICTIONS
THIS DECLARATION OF COVENANTS AND RESTRICTIONS is made as of the _ day
of , 200_, by CBR DEVELOPMENT I, LLC, a Florida limited liability company
("DEVELOPER").
DEVELOPER is the owner of fee simple title to all of the real property described in Exhibit 6.
attached hereto and made a part hereof (hereinafter the "Real Property"). The City of Clearwater 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 preliminary design for the revitalization of Clearwater Beach.
The designation of Clearwater Beach as a Community Redevelopment District provides for
the allocation of bonus resort units as an incentive for the development of destination quality resorts
with a full complement of resort amenities. Pursuant to the designation of Clearwater Beach as a
Community Redevelopment District, the allocation of bonus resort units is subject to compliance with
a series of performance standards, including a requirement that resorts developed with bonus resort
units pursuant to the Community Redevelopment District shall be closed and all guests evacuated
from the resort within twelve (12) hours after the National Hurricane Center posts a hurricane watch
that includes Clearwater Beach. The purpose of the evacuation of the Real Property within twelve
(12) hours of the issuance of a hurricane watch is to ensure that the Real Property 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 of Clearwater has granted, by City Commission Resolution , passed
and approved on , DEVELOPER'S application for an allocation of bonus resort units
pursuant to the provisions of the designation of Clearwater Beach as a Community Redevelopment
District and subject to compliance with the requirements of the designation of Clearwater Beach as
a Community Redevelopment District. DEVELOPER desires for itself and its successors and
assigns, as owners 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 bonus resort units to Clearwater and the designation of Clearwater Beach as a
Community Redevelopment District, 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 bonus resort 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 it and
also for the benefit of the residents of the City of Clearwater, Florida, and shall be
enforceable on behalf of the said residents exclusively by the City Commission of the
City of Clearwater.
Development Agreement
Page 70
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2. Covenant of Development. Use. and Operation. DEVELOPER hereby covenants
and agrees to the development, use, and operation of the Real Property in
accordance with the provisions of this Declaration.
2.1 Use. The use of the bonus resort units allocated to DEVELOPER shall be
limited to overnight accommodations with occupancy limited to stays of thirty
(30) days or less.
2.2 Closure of Improvements and Evacuation. The improvements developed on
the Real Property shall be promptly closed upon the issuance of a hurricane
watch by the National Hurricane Center which hurricane watch includes
Clearwater Beach and all guests, visitors, and employees, other than
emergency and security personnel required to protect the improvements,
shall be evacuated from the Real Property within twelve (12) hours of the
issuance of said hurricane watch. In the event that the National Hurricane
Center shall modify the terminology employed to warn of the approach of
hurricane force winds, the closure and evacuation provisions of this
Declaration shall be governed by the level of warning employed by the
National Hurricane Center which precedes the issuance of a forecast of
probable landfall in order to ensure that the guests, visitors, and employees
will be evacuated substantially in advance of the issuance of a forecast of
probable landfall.
3. Effective Date. This Declaration shall become effective immediately upon its
recording.
4. GoverninQ Law. This Declaration shall be construed in accordance with and
governed by the laws of the State of Florida.
5. RecordinQ. 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. Attornevs Fees. DEVELOPER shall reimburse the City of Clearwater for any
expenses, including attorneys fees, which are incurred by the City of Clearwater 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 the Court.
7. Severabilitv. If any provisions, 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.
Development Agreement
Page 71
ADOPTED
F:~mc\hunter'City Oewlopment AQt. 7 .doc
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IN WITNESS WHEREOF, CBR Development I, LLC, has caused this Declaration of
Covenants and Restrictions to be executed this day of ,200_.
Signed and sealed delivered
In the presence of:
CBR DEVELOPMENT I, LLC,
a Florida limited liability company
By: CBR Communities I, Ltd.,
a Florida limited partnership
Managing Member
By: JMC Communities of Clearwater V, Inc.
a Florida corporation, General Partner
By:
Name: J. Michael Cheezem
Title: CEO
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day of ,
200_, J. Michael Cheezem, as CEO of JMC Communities of Clearwater V, Inc., a Florida
corporation, the General Partner of CBR Communities I, Ltd., a Florida limited partnership, the
Managing Member of CBR Development I, LLC, a Florida limited liability company, who is 0
personally known to me or 0 has produced a Florida driver's license or 0
as identification.
NOTARY PUBLIC
Printed Name:
Commission No.
My Commission expires:
Development Agreement
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EXHIBIT A
PARCEL 1:
THAT PART OF TRACT A OF A RE-SUBDIVISION OF BLOCK 10 AND 11, AND LOTS 2 TO 15,
INCLUSIVE, BLOCK 9, OF THE REVISED MAP OF CLEARWATER BEACH, AS RECORDED IN
PLAT BOOK 19, PAGE 96, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA,
DESCRIBED AS FOLLOWS:
BEGIN AT THE SOUTHEAST CORNER OF THE SAID TRACT A AS SHOWN AS 3.68 ACRES,
TO THE POINT OF BEGINNING, BEING A POINT AT THE INTERSECTION OF THE NORTH
LINE OF BA YMONT STREET, AS SAID BA YMONT STREET IS SHOWN ON SAID RE-
SUBDIVISION OF BLOCKS 10 AND 11 AND LOTS 2 TO 15, INCLUSIVE, BLOCK 9 OF THE
REVISED MAP OF CLEARWATER BEACH, WITH THE WESTERLY LINE OF MANDALAY
ROAD,AND RUN THESE N 20045'00" E, 182.23 FEET; THENCE N 01044'00"E, 110.51 FEETTO
THE CENTERLINE OF AMBLER STREET, SAID AMBLER STREET IS SHOWN AND DEDICATED
AS A PUBLIC STREET IN THE REVISED MAP OF CLEARWATER BEACH, AS RECORDED IN
PLAT BOOK 11, PAGE 5, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA;
THENCE WEST ALONG THE CENTERLINE OF SAID AMBLER STREET 420.00 FEET, MORE
OR LESS, TO THE WATER OF THE GULF OF MEXICO; THENCE IN A SOUTHERLY
DIRECTION ON A MEANDERING LINE ALONG THE WATERS OF THE GULF OF MEXICO,
321.00 FEET, MORE OR LESS, TO THE CENTERLINE OF SAID BA YMONT STREET; THENCE
EAST 385.00 FEET, MORE OR LESS, ALONG SAID CENTERLINE OF BA YMONT STREET TO A
POINT 40.00 FEET SOUTH OF THE POINT OF BEGINNING; THENCE NORTH 40.00 FEET TO
THE POINT OF BEGINNING.
PARCEL 2:
THE NORTH 20.00 FEET OF VACATED AMBLER STREET LYING WEST OF THE EAST LINE OF
LOT 9, PROJECTED SOUTH AS SHOWN ON THE PLAT OF MILLER'S REPLA T, AS RECORDED
IN PLAT BOOK 26, PAGE 17, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA.
PARCEL 3:
LOT 1 AND 10 AND THE SOUTH 80.00 FEET OF LOT 9 OF MILLER'S REPLA T, AS
RECORDED IN PLAT BOOK 26, PAGE 17, OF THE PUBLIC RECORDS OF PINELLAS
COUNTY, FLORIDA.
Development Agreement
Page 73
ADOPTED
F:~mclhunter\Cily Development Agt 7 ,doc
Development Agreement
Page 74
ADOPTED
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EXHIBIT G
F:~mcVlunter'Cly Dewlopment Agt.7 .doc
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EXHIBIT G
List of Required Permits
The following Permits/Approvals will be required and issued for development.
II
Permits
City of Clearwater - Building Permit
City of Clearwater - Right of Way Use Permit
FDEP - CCCL Permit
FDEP - Sewer Permit
FDEP - National Pollution Discharge Elimination System Permit
Pinellas County Health Department - Water
SWFWMD - Environmental Resource Permit
SWFWMD, Army Corps, Fish & Wildlife - Boat Docks
II
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II
II
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II
Approvals
Community Development Board - Site Plan
Clearwater City Council - Development Agreement
City of Clearwater Board of Adjustments - Seawall Setback Variance
City of Clearwater Board of Adjustments - Flood Zone Improvements
City Council - Vacation of Gulfview Boulevard
II
II
II
II
Development Agreement
Page 75
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F:'lmc\hunter\City Dewlopment Agt.7.doc
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EXHIBIT H
Development Agreement
Page 76
ADOPTED
F:\jmcll1unter\Cly Dewlopment Agt.1.doc
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EXHIBIT H
Mandalay Improvements
The Mandalay Improvements include the following work to be done in the City right-of-way along
Mandalay Avenue between Baymont Street and Ambler Street:
By THE CITY OF CLEARWATER
.
Effective treatment for lift station odor caused by hydrogen sulfide gases.
By THE DEVELOPER
. Realignment of the street curb as depicted on site plan attached as Exhibit H-1.
. Installation of City concrete sidewalk as depicted on attached site plan. Sidewalk finish to
have the same "shell" finish as other recently installed City sidewalks in the area. All
landscaping on the west side of Mandalay Avenue as depicted on attached site plan.
. Adjustments to street lighting or other utilities deemed necessary as a result of the above
improvements.
. Relocation of overhead utilities to underground.
. Signs, and other streetscape improvements as depicted on the attached site plan.
. Relocation of the electrical panels at the City's lift station to the location, as depicted on
Exhibit H-2, in accordance with City requirements attached as Exhibit H-3.
. Design and construct Mandalay Drainage Improvements.
Development Agreement
Page 77
ADOPTED
F:~mclJ1unter'City Oewlopment Agt. 7 .doc
Development Agreement
Page 78
ADOPTED
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EXHIBIT H-1
F:~mcVlunter'C.y Dewk>pment Agt.7 .doc
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EXHIBIT H-1
Development Agreement
Page 79
ADOPTED
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CO'\InaSSOClatES
Q'bIIl . Eftvi'onlNnml P*Iner. . LIlIdtc," Atchltlcts
500 Oelonty -'venUt, Orlando, Florida .12801 (407) 422-4040
___CANl'" co... COPVIIlIC"T (e) 2004 ~.. ASSOCIATES. l..c
CLEARWATER BEACH RESORT
SITE PLAN SUSMlTT AL PACKAGE
CLUlWATElIEACII, FlOItIDA
.., COIOIII1U
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EXHIBIT H-2
Development Agreement
Page 80
ADOPTED
F:~mc\hunter\City Development Agt.7.doc
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EXHIBIT H- 2
LIFT STATION IMPROVEMENTS
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Development Agreement
Page 81
ADOPTED
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F:~mc\hunter'Cil:y Development Agt. 7 .doc
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EXHIBIT H-3
Development Agreement
Page 82
ADOPTED
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EXHIBIT H-3
City Lift Station Requirements:
1. New electrical equipment should be provided. This will allow continued operation of the
lift station uninhibited until the new equipment is ready to be placed in service.
2. Spare conduits will be installed for use as needed by the City.
3. Easements will be granted to the City over the building room and conduit corridor.
4. All work will be approved by the City before construction. All permits must be paid for
and obtained by the Developer.
5. The electrical control room must be of sufficient size to allow future equipment
improvements and accommodate at least two electricians working in the area. The room should
either have a window or the resort understands the door will remain open when needed, so
maintenance staff has line of site view to the wet well. The room must be climate controlled.
6. Locks for the room will be City standard. The City cannot provide City keys to private
entities.
7. An HOA (Hand, Off, Automatic) panel must be at the wet well area for control of the
station.
8. The development will provide backup generator power on the line side of the power feed
for the lift station.
9. A generator receptacle must be provided at the lift station.
10. There must be an area light to illuminate the lift station area.
11. There cannot be any overhead restrictions in the lift station area.
12. A second odor control unit is suggested to help ensure that odors do not escape the lift
station area.
13. Developer agrees that the lift station site is a valuable City asset, and maintenance must
be performed, as the City deems necessary, to ensure the proper operation. Maintenance may
include use of heavy equipment, such as a vacuum, crane, generator, etc. Developer will not
inhibit any activities the City deems necessary to ensure operation of the lift station.
NOTE: City will grant Developer impact fee credits for cost of replacement equipment provided
to City.
Development Agreement
Page 83
ADOPTED
F:~mc\hunter\Cil:y Dewlopmenl Agt.7.doc
Development Agreement
Page 84
ADOPTED
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EXHIBIT I
F:'fmcV'luntercly Development AIJt.7.doc
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EXHIBIT I
Baymont Improvements
The Baymont Improvements include the following work to be done in the City right-of-way along
that portion of Baymont Street which is located to the west of Mandalay Avenue.
By THE CITY OF CLEARWATER
· None
By THE DEVELOPER
. Landscaping, and other streetscape improvements as depicted on site plan attached as
Exhibit 1-1.
. New street curbs as depicted on approved site plan, including realignment ofthe curb on the
north side of the street.
. Elimination of the five public parking spaces along the north side of the street in order to
accommodate the hotel vehicular entries as depicted on attached site plan.
. Creating a cul-de-sac at the western end of Baymont and repaving using pavers the same
as or similar to the pavers on Papaya Street and San Marco Street.
. New City concrete sidewalks as depicted on approved site plan, including the sidewalk from
the westerly end of the cul-de-sac heading west to the beach. Sidewalk finish to have the
same "shell" finish as other recently installed City sidewalks in the area, or a mutually
approved paver alternate.
. Adjustments to ~treet lighting andior other utilities deemed necessary as-a result of the
above improvements.
. Relocation of overhead utilities to underground.
Development Agreement
Page 85
ADOPTED
F:~mcll1untercil:y Dewlopment A/Jf..7 .doc
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EXHIBIT 1-1
Development Agreement
Page 86
ADOPTED
F:~mcVlunter'City Dewlopment Agt.7.doc
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EXHIBIT 11-1
Development Agreement
Page 87
ADOPTED
F:~mclt1untercil:y Development Agt. 7 .doc
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XHIBIT 1-1
Landscape/Streetscape Improvements
Baymont Right-of-Way
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50lI Deloney "-ua. OrlorMlo, Florida J2801 (407) 422-.040
_W.CAHIH.CO'" COPVlIt>GHT (el 2004 CA..... ASSoe,...Us. ONe
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EXHIBIT J
Development Agreement
Page 88
ADOPTED
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EXHIBIT J
Ambler Improvements
The Ambler improvements include the following work to be done in the City right-of-way along
Ambler Street:
By THE CITY OF CLEARWATER
· None
By THE DEVELOPER
. Construct certain portions of hotel above Ambler pedestrian easement while still maintaining
on-grade vehicular and pedestrian access consistent with current as-built conditions.
Vertical clearance shall be a minimum of 7'6" consistent with current clearance.
. Re-grading and repaving portions of Ambler Street as deemed necessary to function
effectively with the ground level hotel design.
Development Agreement
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EXHIBIT K
Development Agreement
Page 90
ADOPTED
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EXHIBIT K
San Marco Improvements
The San Marco improvements include the following work to be done in the City right-of-way along
San Marco Street west of Mandalay Avenue.
By THE CITY OF CLEARWATER
· None
By THE DEVELOPER
. Install new sanitary sewer line from westernmost sanitary manhole in San Marco Street and
connect to manhole in Mandalay Avenue. New sanitary sewer line will be a direct burial
installation, and will require removal of asphalt and pavers on the north half of San Marco.
. San Marco access to adjacent non-developer controlled properties will be maintained.
. Provide dumpster collection area and relocate sidewalk and landscaping in dumpster area
as per approved site plan.
. Design and construct San Marco Drainage Improvements.
Development Agreement
Page 91
ADOPTED
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Development Agreement
Page 92
ADOPTED
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EXHIBIT L
F:"imc\hunter'C1y Dewlopment Agt.7.doc
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EXHIBIT L
Amenity Improvements
The amenity improvements as listed below are generally those improvements which will be located
seaward of the Coastal Construction Control Line (CCCL) and/or located at a lower elevation than
the V-zone Flood Line. Please note it is the Developer's intent to minimize improvements that could
be considered non-conforming with FEMA Guidelines, and as a result of these improvements, there
will be a net reduction of approximately 30,000 square feet of habitable space currently below the V-
Zone elevation.
.
Parking, storage and building access points as depicted on approved site plan.
.
Pools, pool decks, boardwalks, pool restrooms, and pool equipment as depicted on
approved site plan.
.
Open-sided gazebo as depicted on approved site plan.
.
Poolside bar and grill, with natural gas grill, sink and removable refrigerator/ice machine as
depicted on approved site plan.
.
Portion of existing structures renovated into a beach social room, storage and baths as
depicted on approved site plan.
.
Landscape as depicted on approved site plan.
Development Agreement
Page 93
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Development Agreement
Page 94
ADOPTED
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EXHIBIT M
F:~mc\hunter'Cly Dewlopment Agt. 7 .doc
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EXHIBIT M
Covenant of Unified Use
THIS INSTRUMENT PREPARED BY
AND WHEN RECORDED, RETURN TO:
Robert F. Greene, Esquire
Greene & Schermer
1301 Sixth Avenue W, Suite 400
Bradenton, Florida 34205
COVENANT OF UNIFIED USE
THIS COVENANT OF UNIFIED USE (the "Agreement") is executed this day of
,200_ (the "Effective Date") by CBR DEVELOPMENT I, LLC, a Florida
limited liability company and CBR DEVELOPMENT II, LLC, a Florida limited liability company
("collectively, Owner").
W!!NE.~~E.!H:
WHEREAS, Owner is the owner of the real property legally described on Exhibit A attached
hereto and incorporated herein by reference (the "Property"); and
WHEREAS, Owner and the City of Clearwater (the "City") are parties to that certain
Development Agreement dated ,200_, (the "Development
Agreement") pursuant to which the City has agreed that Owner may develop and construct upon the
Property a multi-use project consisting of not less than 240 and not more than 260 hotel units
(including condominium hotel units), not more than 120 residential condominium units and not more
than 11,000 square feet of retail space and a minimum of 431 parking spaces all as more
particularly described in the Development Agreement; and
WHEREAS, Owner has agreed that the Property shall be developed and operated for a
unified use, as more particularly described hereinbelow.
NOW THEREFORE, in consideration of the sum ofTen Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner does
hereby agree that the Property shall be developed and operated as a unified mixed-use project such
that the components shall have certain shared parking facilities as shown on the approved site plan.
The restrictions set forth in the preceding sentence shall survive for a period of twenty (20) years
from the Effective Date of this Agreement. Nothing in this Agreement shall preclude the purchase
and sale of the residential units and condominium hotel units and all other components of the mixed-
use project constructed upon the Property to separate, unrelated third-party owners, so long as all
components of the project are operated with the shared parking facilities throughout the term of this
Agreement. Owner agrees that the City shall have the right to enforce the terms and conditions of
this Agreement.
Development Agreement
Page 95
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IN WITNESS WHEREOF, the undersigned has executed this Covenant of Unified Use
effective the day and year first above written.
Witnesses:
CBR DEVELOPMENT I, LLC,
a Florida limited liability company
By:
CBR Communities I, Ltd.,
a Florida limited partnership
Managing Member
Print Name:
By: JMC Communities of Clearwater V, Inc.
a Florida corporation, General Partner
Print Name:
By:
Name: J. Michael Cheezem
Title: CEO
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of
, 200_, J. Michael Cheezem, as CEO of JMC Communities of Clearwater
V, Inc., a Florida corporation, the General Partner of CBR Communities I, Ltd., a Florida limited
partnership, the Managing Member of CBR Development I, LLC, a Florida limited liability company,
who is 0 personally known to me or 0 has produced a Florida driver's license or 0
as identification.
NOTARY PUBLIC
Printed Name:
Commission No.
My Commission expires:
Development Agreement
Page 96
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Witnesses:
CBR DEVELOPMENT II, LLC,
a Florida limited liability company
Print Name:
By:
CBR Communities II, Ltd.,
a Florida limited partnership
Managing Member
Print Name:
By: JMC Communities of Clearwater VI, Inc.
a Florida corporation, General Partner
By:
Name: J. Michael Cheezem
Title: CEO
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of
,200_, J. Michael Cheezem, as CEO of JMC Communities of Clearwater
VI, Inc., a Florida corporation, the General Partner of CBR Communities II, Ltd., a Florida limited
partnership, the Managing Member of CBR Development II, LLC, a Florida limited liability company,
who is 0 personally known to me or 0 has produced a Florida driver's license or 0
as identification.
NOTARY PUBLIC
Printed Name:
Commission No.
My Commission expires:
Development Agreement
Page 97
ADOPTED
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EXHIBIT A
SOUTH BLOCK
Lots 1 - 13 and 49 - 56, Clearwater Beach Park, as per plat thereof recorded in Plat Book 10, Page
42, of the Public Records of Pinellas County, Florida.
Lots 43 through 48, Lots 65 through 71, and the South 14.75 feet of Lot 64, CLEARWATER BEACH
PARK, as recorded in Plat Book 10, Page 42, of the Public Records of Pinellas County, Florida.
NORTH BLOCK
PARCEL 1:
THAT PART OF TRACT A OF A RE-SUBDIVISION OF BLOCK 10 AND 11, AND LOTS 2 TO 15,
INCLUSIVE, BLOCK 9, OF THE REVISED MAP OF CLEARWATER BEACH, AS RECORDED IN
PLAT BOOK 19, PAGE 96, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA,
DESCRIBED AS FOLLOWS:
BEGINAT THE SOUTHEAST CORNER OF THE SAID TRACT A AS SHOWN AS 3.68 ACRES,
TO THE POINT OF BEGINNING, BEING A POINT AT THE INTERSECTION OF THE NORTH
LINE OF BAYMONT STREET, AS SAID BAYMONT STREET IS SHOWN ON SAID RE-
SUBDIVISION OF BLOCKS 10 AND 11 AND LOTS 2 TO 15, INCLUSIVE, BLOCK 9 OF THE
REVISED MAP OF CLEARWATER BEACH, WITH THE WESTERLY LINE OF MANDALAY
ROAD, AND RUN THESE N 20045'00" E, 182.23 FEET; THENCE N 01044'00" E, 110.51 FEET TO
THE CENTERLINE OF AMBLER STREET, SAID AMBLER STREET IS SHOWN AND DEDICATED
AS A PUBLIC STREET IN THE REVISED MAP OF CLEARWATER BEACH, AS RECORDED IN
PLAT BOOK 11, PAGE 5, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA;
THENCE WEST ALONG THE CENTERLINE OF SAID AMBLER STREET 420.00 FEET, MORE
OR LESS, TO THE WATER OF THE GULF OF MEXICO; THENCE IN A SOUTHERLY
DIRECTION ON A MEANDERING LINE ALONG THE WATERS OF THE GULF OF MEXICO,
321.00 FEET, MORE OR LESS, TO THE CENTERLINE OF SAID BA YMONT STREET; THENCE
EAST 385.00 FEET, MORE OR LESS, ALONG SAID CENTERLINE OF BA YMONT STREET TO A
POINT 40.00 FEET SOUTH OF THE POINT OF BEGINNING; THENCE NORTH 40.00 FEET TO
THE POINT OF BEGINNING.
PARCEL 2:
THE NORTH 20.00 FEET OF VACATED AMBLER STREET LYING WEST OF THE EAST LINE OF
LOT 9, PROJECTED SOUTH AS SHOWN ON THE PLAT OF MILLER'S REPLA T, AS RECORDED
IN PLAT BOOK 26, PAGE 17, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA.
PARCEL 3:
LOT 1 AND 10 AND THE SOUTH 80.00 FEET OF LOT 9 OF MILLER'S REPLAT, AS
RECORDED IN PLAT BOOK 26, PAGE 17, OF THE PUBLIC RECORDS OF PINELLAS
COUNTY, FLORIDA.
Development Agreement
Page 98
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EXHIBIT N
Development Agreement
Page 99
ADOPTED
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EXHIBIT N
Boat Dock Improvements
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CLEARWATER BEACH
FAMILY RECREATION CENTER
)---
BELLE HARBOR
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MANDALAY AVE.
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Development Agreement
Page 100
ADOPTED
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Development Agreement
Page 101
ADOPTED
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EXHIBIT N-1
F:\jmcVlunter"Cily Development Agt.7 .doc
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EXHIBIT N-1
BOAT DOCK AGREEMENT
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AGREEMENT
This Agreement (the "Agreement") is made as of this _ day of , 200_,
by and between THE CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation (the
"City") and CBR DEVELOPMENT I, LLC, a Florida limited liability company (the "Developer").
WITNESSETH:
WHEREAS, the City of Clearwater and Developer have entered into a Development
Agreement for Property in the City of Clearwater of even effective date (the "Development
Agreement");
WHEREAS, Section 5.03.10 of the Development Agreement provides for the City and
Developer to enter into an agreement providing for the construction of shared boat docking facilities
("Boat Dock Facilities") within a boat basin ("Boat Basin') adjoining City owned real property ("City
Property"), which Boat Basin and Boat Docking Facilities are conceptually depicted on the attached
Exhibit "A";
WHEREAS, the construction and use ofthe Boat Docking Facilities will further the objectives
of the City and facilitate the development by Developer of the mixed use resort Project, as provided
in the Development Agreement;
WHEREAS, at a duly called public meeting on , 200_, the City Council
approved this Agreement, and authorized and directed its execution by the appropriate officials of
the City; and
WHEREAS, the members of Developer have approved this Agreement and have authorized
the unders!gned individual to execute this Agfeement on its behalf.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties hereby agree as follows:
ARTICLE 1. DEFINITIONS.
1.01. Definitions. The capitalized terms used in this Agreement that are not defined shall have
the meanings given to such terms in the Development Agreement.
1.02. Use of Words and Phrases. Words of the masculine .gender shall be deemed and
construed to include correlative words of the feminine and neuter genders. Unless the
context shall otherwise indicate, the singular shall include the plural as well as the singular
number, and the word "person" shall include corporations and associations, limited liability
corporations and partnerships, including public bodies, as well as natural persons. "Herein,"
"hereby," "hereunder," "hereof," "hereinbefore," "hereinafter" and other equivalent words
refer to this Agreement and not solely to the particular portion thereof in which any such
word is used.
Development Agreement
Page 102
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1.03. Florida Statutes. All references herein to Florida Statutes are to Florida Statutes (2004), as
amended from time to time.
ARTICLE 2. PURPOSE AND DESCRIPTION OF BOAT DOCKING FAICLlTIES.
2.01. Finding of Public Purpose and Benefit. The proposed Boat Docking Facilities, including
the design, construction, completion and use of the Boat Docking Facilities, is hereby found
by the parties hereto: (1) to be consistent with and in furtherance of the objectives of the
Comprehensive Plan of the City of Clearwater, (2) to conform to the provisions of Florida
law, (3) to be in the best interests of the citizens of the City, (4) to further the purposes and
objectives of the City, (5) to further the public interest on Clearwater Beach, and (6) to
implement Beach by Design, including the creation of the new quality hotel resort to be
constructed as a part of the Project.
2.02. Purpose of Agreement. The purpose of this Agreement is to further the implementation
of Beach by Design by providing for the development of the Boat Docking Facilities, all to
enhance the quality of life, increase employment and improve the aesthetic and useful
enjoyment of Clearwater Beach and the City, all in accordance with and in furtherance of the
Comprehensive Plan of the City of Clearwater and as authorized by and in accordance with
the provisions of Florida law.
2.03. Scope of the Project.
1. The Boat Docking Facilities are contemplated to include a central pier, finger piers
and associated pilings as conceptually depicted on the attached Exhibit "A", which
will accommodate a maximum of 57 boat slips ("Boat Slips"). The Developer and its
designated successors and assigns shall have the right to utilize exclusively sixty-
seven percent (67%) of the Boat Slips so long as the Boat Docking Facilities
continue to exist ("Developer Slips"). The City shall have the right to control the use
of all remaining Boat Slips ("City Slips").
2. The Developer shall have the right to install a gate or other access/security
improvements on the central pier at the location on the pier that the Developer Slips
begin.
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.
Utilities shall not be provided to the City Slips.
4. Developer shall pay for all maintenance and repair costs for the Boat. Slip Facilities,
including costs relating to the City Slips.
5. Developer agrees that use of the Developer Boat Slips shall be limited to owners,
tenants and guests of the Project and any sublease or assignment by Developer of
rights to utilize Developer Boat Slips shall be limited to Project owners.
Development Agreement
Page 103
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6. During the term of this Agreement, Developer shall provide a shuttle service to the Boat
Docking Facilities from the Project.
2.04. Cooperation of the Parties. The City and the Developer recognize that the successful
development of the Boat Docking Facilities and each component thereof is dependent upon
the continued cooperation of the City and the Developer, and each agrees that it shall act in a
reasonable manner hereunder, provide the other party with complete and updated information
from time to time, with respect to the conditions such party is responsible for satisfying
hereunder and make its good faith reasonable efforts to ensure that such cooperation is
continuous, the purposes of this Agreement are carried out to the full extent contemplated
hereby and the Boat Docking Facilities are designed, constructed, completed and used as
provided herein.
ARTICLE 3. REGULATORY PROCESS.
3.01 Development Approvals and Permits.
1. Applications for Development Approval. The Developer shall prepare and submit to
the appropriate governmental authorities, including the City, applications for approval
of the State of Florida Sovereignty Submerged Lands Lease ("SSLL"), all required
permits ("Permits"), and all plans and specifications ("Plans and Specifications")
necessary for the Boat Docking Facilities, and shall bear all costs of preparing such
applications, applying for and obtaining such approvals and permits, including
payment of any and all applicable application, inspection, and regulatory fees or
charges. The City shall, to the extent possible, expedite review of all applications.
The failure of this Agreement to address a particular permit, condition, or term of
restriction shall not relieve the Developer of the necessity of complying with the law
governing said permitting requirements, conditions, terms or restrictions.
2. City Cooperation and Assistance. The City shall cooperate with the Developer in
obtaining the SSLL and all necessary Permits required for the construction,
completion and use of the Boat Docking Facilities. If requested by the Developer and
authorized by law, the City will join file or in the filing of any application for the SSLL
or any Permit, or, alternatively, recommend to and urge any governmental authority
that such SSLL or Permit be issued or approved.
3. City Authoritv 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.
3.02. Concurrency.
Development Agreement
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1. Concurrency Required. The parties hereto recognize and acknowledge that Florida
law (specifically, Part II, Chapter 163, Florida Statutes, and Rule 9J-5, Florida
Administrative Code, collectively the "Growth Management Act") imposes restrictions
on development if adequate public improvements are not available concurrently with
that development to absorb and handle the demand on public services caused by
development. The City has created and implemented a system for monitoring the
effects of development on public services within the City. The Developer recognizes
and acknowledges it must satisfy the concurrency requirements of Florida law and
the City's regulations as applied to the Boat Docking Facilities.
2. Reservation of Capacity. The City hereby agrees and acknowledges that as of the
Effective Date of this Agreement, the Boat Docking Facilities satisfy the concurrency
requirements of Florida law. The City agrees to reserve the required capacity to
serve the Boat Docking Facilities for the Developer and to maintain such capacity for
a period of three (3) years from the Effective Date of this Agreement and that such
period shall be automatically extended for an additional three (3) years if the
Developer commences construction within the initial three (3) year period. The City
recognizes and acknowledges that the Developer will rely upon such reservation in
proceeding with the Boat Docking Facilities.
3. Required Public Facilities. In addition to the obligations of the City and the
Developer set out in Article 5 of this Agreement, the Water Utilities Department of
the City will provide potable water service to the Boat Docking Facilities.
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. DEVELOPMENT OF BOAT DOCKING FACILITIES.
5.01. Ownership of City Property. The City is the owner the City Property which is more
particularly described in Exhibit "B" to this Agreement and has the littoral (riparian) rights
required to apply for the SSLL.
5.02. Boat Basin. The Boat Basin in which the Boat Docking Facilities are to be constructed
adjoins the City Property, is located on State of Florida sovereignty submerged lands, and is
depicted on the attached Exhibit "B".
5.03. Obligations of the City.
Development Agreement
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1. SSLL. The Developer shall, at its expense, cause to be prepared the application for
the SSLL. The City shall execute and file with the State of Florida such application.
The City shall cooperate with the Developer with required processing of the
application for the SSLL and upon approval, shall execute and deliver the SSLL to
the State of Florida. So long as this Agreement remains in effect, the City shall assist
Developer and timely apply for renewals of the SSLL. Developer shall pay all lease
and other payments due the State of Florida pursuant to the SSLL, including all
payments due for renewal terms.
2. Permits. The City will cooperate and coordinate with the Developerwith regard to all
Permit applications, including those to state agencies, and will facilitate or expedite,
to the greatest extent possible, the permit approval process.
3. Improvements. The Developer, at its expense, shall construct all improvements
constituting the Boat Docking Facilities.
4. Timely Completion. The City recognizes the public importance of the timely
completion of the proposed improvements, and time is deemed to be of the essence.
The City considers this Agreement as overall authority for the Developer to proceed
to permit, and agrees to implement a fast-track review, permitting, and inspection
program for the Boat Docking Facilities.
ARTICLE 6. PROJECT FINANCING.
6.01. Assignment of Rights Under Agreement To Project Lender. Developer may assign to the
Project Lender all its right, title and interest under this Agreement as security for any
indebtedness of Developer. The execution of any assignment, security agreement, or other
instrument, or the foreclosure of the instruction or any sale under the instrument, either by
judicial proceedings or by virtue of any power reserved in the mortgage or deed of trust, or
conveyance in lieu of foreclosure by Developer to the holder of such indebtedness, or the
existence of any right, power, or privilege reserved in any instrument, shall not be held as a
violation of any of the terms or conditions of this Agreement, or as an assumption by the
holder of such indebtedness personally of the obligations of this Agreement. No such
assignment, foreclosure, conveyance or exercise of right shall relieve Developer from its
liability under this Agreement.
6.02. Cooperation. The City and the Developer shall cooperate as to reasonable requests for
assurances any proposed Project Lender for the purpose of implementing the mortgagee
protection provisions contained in this Agreement and allowing the Project Lender
reasonable means to protect or preserve the liens of such Project Lender upon the
occurrence of a default under the terms of this Agreement.
ARTICLE 7. CONSTRUCTION OF PROJECT.
7.01. Site. The Developer shall be responsible for all site investigation and environmental testing.
7.02. Construction of Boat Docking Facilities.
Development Agreement
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1.
a.
Commencement. Developer shall construct the Boat Docking Facilities
substantially in accordance with the Plans and Specifications therefor.
Developer shall commence construction of the Boat Docking Facilities
("Commencement Date") on or before one (1) year after receipt of the SSLL
and all Permits, and expiration or resolution of all appeal/challenges thereto
("Approval Effective Date").
b. For purposes of this Section 7.02, "commence construction" means
commencement of meaningful physical development of the Boat Docking
Facilities as authorized by the Permits therefor which is continued and
diligently prosecuted toward completion of the Boat Docking Facilities.
c. All obligations of Developer (including deadlines in the Commencement
Date) with respect to commencement and continuation of construction shall
be subject to delays and extensions from time to time for Unavoidable Delay
(see Article 15). Developer shall not be deemed to be in default of this
Agreement to the extent construction of the Boat Docking Facilities, or a part
thereof, is not complete by reason of Unavoidable Delay.
2. Pursuit of Construction. After the Commencement Date, Developer shall continue,
pursue and prosecute the construction of the Boat Docking Facilities with due
diligence to completion, and shall not at any time actually or effectively have
abandoned (or its Contractor having actually or effectively abandoned) the Boat
Docking Facilities. For purposes of this subsection 7.02.2, "abandoned" means to
have ceased any construction work which effectively advances the construction of
the Boat Docking Facilities toward completion, including removing all or substantially
all of the construction work force from the site of the Boat Docking Facilities for a
period of not less than sixty (60) days.
3. Maintenance of Construction Site. During the construction of the Boat Docking
Facilities, Developer shall, at its own expense, keep the Boat Docking Facilities and
all adjoining City Property in reasonably good order and condition.
4. Construction Completion. Developer agrees to complete the Boat Docking Facilities
on or before one (1) year after the Commencement Date.
7.03. City Not in Privity. The City shall not be deemed to be in privity of contract with any
Contractor or provider of services with respect to the construction of any part of the Boat
Docking Facilities not constituting all or any part of public improvements.
7.04. Construction Sequencing and Staging Area. The Developer shall construct the Boat
Docking Facilities in a manner and fashion which will minimize the inconvenience of the
construction on the property owners of Clearwater Beach and the residents of the City and
the use of the City Property. The City agrees to allow Developer to use portions of the City
Property as designated by the City for construction staging during construction of the Boat
Docking Facilities, without charge to the Developer, provided that such staging area does
not unreasonably affect the continued use of the City Property as provided for in this
Paragraph.
ARTICLE 8. INDEMNIFICATION.
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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 frol')1 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 ofthe
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 inde.mt:'ify,-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.
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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 ofElorida, has all requisite power and authosity
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
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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 Petp.rsburg, Florida, and the Developer will keep records concerning the Boat
Docking Facilities (such as construction contracts, financing documents and
corporate documents) and all contracts, licenses and similar rights relating thereto at
an office in Pinellas County.
8. As of the Effective Date, the Developer will have the financial capability to carry out
its obligations and responsibilities in connection with the development of the Boat
Docking Facilities as contemplated by this Agreement.
9. The Developer has the experience, expertise, and capability to develop, cause the
construction, and complete the Boat Docking Facilities and, oversee and manage
the design, planning, construction, completion and use of the Boat Docking
Facilities.
9.02. Covenants. The Developer covenants with the City that until the earlier of the Termination
Date or the Expiration Date:
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1. The Developer shall timely perform or cause to be performed all of the obligations
contained herein which are the responsibility of the Developer to perform.
2. During each year that this Agreement and the obligations of the Developer under
this Agreement shall be in effect, the Developer shall cause to be executed and to
continue to be in effect those instruments, documents, certificates, permits, licenses
and approvals and shall cause to occur those events contemplated by this
Agreement that are applicable to, and that ~re 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 develop, construct and complete 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 develop, construct
and complete the Boat Docking Facilities as contemplated hereby.
5. The Developer shall promptly cause to be filed when due all federal, state, local and
foreign tax returns required to be filed by it, and shall promptly pay when due any tax
required thereby.
6. Subject to Section 18.01, the Developer shall maintain its existence, will not dissolve
or substantially dissolve all of its assets and will not consolidate with or merge into
another corporation, limited partnership, or other entity or permit one or more other
corporations or other entity to consolidate with or merge into it without the prior
approval of the City unless the Developer or an entity under common control with
Developer, retains a controlling interest in the consolidated or merged entity, and will
promptly notify the City of any changes to the existence or torm of ,the el1tity or any _
change in the control of the Developer.
7. Other than sales and assignments contemplated by this Agreement, the Developer
shall not sell, lease, transfer or otherwise dispose of all or substantially all its assets
without adequate consideration and will otherwise take no action which shall have
the effect, singularly or in the aggregate, of rendering the Developer unable to
continue to observe and perform the covenants, agreements, and conditions hereof
and the performance of all other obligations required by this Agreement.
8. The Developer shall not permit, commit, or suffer any waste of the City Property or
the Boat Docking Facilities.
9. Provided all conditions precedent thereto have been satisfied or waived as provided
herein, the Developer shall design, construct and complete the Boat Docking
Facilities such that it is substantially complete as provided in this Agreement no later
than the Completion Date.
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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 thereot, _except as suc~nforceability maY.J?e
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 obiigations 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.
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3. The City shall assist and cooperate with the Developer to accomplish the
development of the Boat Docking Facilities in accordance with this Agreement and
the Plans and Specifications, will carry out its duties and responsibilities
contemplated by this Agreement, and will not violate any laws, ordinances, rules,
regulations, orders, contracts, or agreements that are or will be applicable thereto,
and, to the extent permitted by law, the City will not enact or adopt or urge or
encourage the adoption of any ordinances, resolutions, rules regulations or orders or
approve or enter into any contracts or agreements, including issuing any bonds,
notes, or other forms of indebtedness, that will result in any provision of this
Agreement to be in violation thereof.
4. The City shall not permit, commit, or suffer any waste or impairment to the Boat
Docking Facilities, nor shall the City alter the City Property, or any part thereof, so as
to prevent or adversely affect the development and use of the Boat Docking
Facilities.
ARTICLE 11. CONDITIONS PRECEDENT.
11.01. Developer Obligations. Unless this Agreement has been terminated pursuant to Article 12
hereof, the obligation of the Developer to construct the Boat Docking Facilities is subject to
the fulfillment to the satisfaction of, or waiver in writing by, the Developer of each of the
following conditions precedent:
1. All conditions precedent under Article 11 of the Development Agreement have been
satisfied or waived by Developer.
2. The Plans and Specifications required to commence construction of the Boat
Docking Facilities shall have been approved by the City in accordance with
applicable ordinances, land use regulations, building codes and other regulations of
the City.
3. The City shall have obtained the SSLL as provided in Article 6 bereof.
4. All Permits necessary for construction of the Boat Docking Facilities to commence
shall have been issued and have become final and non-appealable.
11.02. Responsibilities of the Parties for Conditions Precedent. The parties hereto shall not,
individually or collectively, knowingly, intentionally or negligently prevent any condition
precedent from occurring; provided, however, nothing in this Section is intended or shall be
deemed to deny any party the right to reasonably exercise its discretion to the extent
permitted by law or this Agreement.
ARTICLE 12. DEFAULT; TERMINATION.
12.01. Project Default by the Developer.
1. There shall be an "event of default" by the Developer under this Agreement upon the
occurrence of anyone or more of the following:
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2. a.
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
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~ giligently 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.
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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 defaulting the Developer shall vacate the Parcel(s).
12.02. Default by the City.
1. Provided the Developer is not then in default under Section 12.01, there shall be an
"event of default" by the City under this Agreement in the event the City shall fail to
perform or comply with any material provision of this Agreement applicable to it;
provided, however, that suspension of or delay in performance by the City during any
period in which the Developer is in default of this Agreement as provided in Section
12.01 hereof will not constitute an event of default by the City under this Subsection
12.02.
2.
If an event of default by the City described in Subsection 12.02.1. shall occur,
the Developer shall provide written notice thereof to the City, and, after
expiration of the curative period described in paragraph (b) below, may
terminate this Agreement, institute an action to compel specific performance
of the terms hereof by the City or pursue any and all legal or equitable
remedies to which the Developer is entitled; provided, however,ifthe evenL__
of default by the City occurs, any monetary recovery by the Developer in any
such action shall be limited to bona fide third-party out of-pocket costs and
expenses, including reasonable attorneys' fees, incurred by the Developer in
connection with this Agreement and the transactions contemplated hereby,
unless any such default by the City was willful and committed in bad faith
with reckless disregard for the rights of the Developer.
a.
b. The Developer may not terminate this Agreement or institute an action
described in paragraph (2a) above if the City cures such event of default
within thirty (30) days after receipt by the City of ~ritten 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
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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. -_ - n_ -
12.04. Non-Action on Failure to Observe Provisions ofthis 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 Prior to Commencement of Project.
1. The Developer and the City acknowledge and agree that as of the Effective Date
certain matters mutually agreed by the parties hereto to be essential to the
successful development of the Boat Docking Facilities have not been satisfied or are
subject to certain conditions, legal requirements or approvals beyond the control of
any of the parties hereto or which cannot be definitely resolved under this
Agreement, including, but not limited to, failure of a governmental authority to grant
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an approval required for development of the Boat Docking Facilities. In recognition
of these events or conditions, the parties hereto mutually agree that, provided the
appropriate or responsible party therefor diligently and in good faith seeks to the
fullest extent of its capabilities to cause such event or condition to occur or be
satisfied, the failure of the events or conditions listed in subsection 2. below to occur
or be satisfied shall not constitute an event of default by any party under this Article
12, but may, upon the election of any party hereto, be the basis for a termination of
this Agreement in accordance with this Section.
2. In addition to any other rights of termination provided elsewhere in this Agreement,
prior to commencement of the Boat Docking Facilities, this Agreement may be
terminated as provided in subsection 3. of this section by the City or the Developer
after the occurrence of any of the following events or conditions (except for
subsection b. , in which event only the Developer may terminate this Agreement
pursuant to this subsection 2.):
a. The appropriate governmental authority (including the City in exercise of its
governmental and regulatory authority and responsibility), upon petition by
the Developer denies or fails to: enter into the SSLL, issue the Permits, or
issue any other approval necessary to commence construction of the Boat
Docking Facilities, provided the Developer has proceeded diligently,
expeditiously and in good faith to obtain such SSLL, Permits or other
necessary actions;
b. A previously unknown site condition is subsequently discovered and that
condition prevents successful development of the Boat Docking Facilities.
3. Upon the occurrence of an event described in subsection 2. or in the event that the
Developer or the City, after diligently and in good faith to the fullest extent its
capabilities, is unable to cause a condition precedent to its respective obligations to
occur or be satisfied, then the Developer or the City may elect to terminate this
Agreement by giving a notice to the other party hereto within thirty (30) days of the
occurrence of such event or the determination oLinability to cause a condition
precedent to occur or be satisfied, stating its election to terminate this Agreement as
a result thereof, in which case this Agreement shall then terminate.
4. In the event of a termination pursuant to this Section 12.05, neither the Developer
nor the City shall be obligated or liable one to the other in any way, financially or
otherwise, for any claim or matter arising from or as a result of this Agreement or any
actions taken by the Developer and the City, or any of them, hereunder or
contemplated hereby, and each party shall be responsible for its own costs,
however, the provisions of Sections 9.01 and 10.01 shall apply and shall survive
termination of this Agreement, the provisions of this Subsection 12.05.4 to the
contrary notwithstanding.
12.06. Termination Certificate.
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1. I n 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,
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which certificate shall expressly state that this Agreement has been terminated in
accordance with its terms, is no longer of any force and effect except for those
provisions hereof which expressly survive termination, that the rights, duties and
obligations of the parties hereto have been terminated and released (subject to
those surviving provisions hereof) and that the Boat Basin is no longer subject to any
restrictions, limitations or encumbrances imposed by this Agreement.
2. The certificate described in Subsection 1. shall be prepared in a form suitable for
recording and promptly after execution by all of the parties hereto shall be recorded
in the public records of Pinellas County, Florida.
ARTICLE 13. RIGHT TO CONTEST.
13.01. Right to Contest. Subject to the conditions set forth in Section 13.02 below, the City or the
Developer each may, at its sole discretion and expense, after prior written notice to the other
parties hereto, contest by appropriate action or proceeding conducted in good faith and with
due diligence, the amount or validity or application, in whole or in part, of any lien, any
payment of any taxes, assessments, impact fees or other public charges of a similar nature
that may from time to time be levied upon or assessed by any appropriate governmental
authority against the City, the Developer, the Boat Docking Facilities (or any part thereof),
the Boat Basin or personal property thereon, and the revenues generated from the use or
operation of any or all of the above, any other payment specifically identified in this
Agreement, or compliance with any law, rule, regulation, or other such legal requirement.
13.02. Conditions. The right to contest any charge, payment or requirement pursuant to Section
13.01 is subject to the following:
1. Such proceeding shall suspend the execution or enforcement of such charge,
payment or requirement;
2. Such proceeding will not create any risk of impairment of the construction,
completion, operation or use of the Boat Docking Facilities or any part thereof, in any
material respect, and no portion of the Boat Docking Facilities would-be sullject 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
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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.
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 ofthe notice
of such appointment as the arbitrator or, if more than one (1) arbitrator is to
be appointed, as one of the arbitrators.
a.
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.
If two (2) arbitrators are appointed pursuant to subsection a. above, the
arbitrators thus appointed shall appoinla third disinterested pers..on 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.
a.
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
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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 underthis 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.
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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.
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.
a.
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 partie~ mutuglly
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
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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. RESTRICTIONS ON USE.
16.01. Project. Prior to the earlier of the Termination Date or the Expiration Date, no use of the
Boat Docking Facilities, other than as described in Section 2.03, shall be permitted, unless
and until the Developer or the person, if other than the Developer, intending to so use the
Boat Docking Facilities, shall file with the City a request for a release from the restriction
imposed by this Section. The Governing Body of the City shall promptly consider such
request and either deny the request, approve the request as filed, or approve the request
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subject to such terms, conditions and limitations as the City may reasonably require. Unless
specifically requested and approved, a release of the restriction imposed by this Section
shall not release the Developer from any obligations or restrictions imposed by this
Agreement or any agreement, instrument or document contemplated hereby.
ARTICLE 17. FIRE OR OTHER CASUAL TV; CONDEMNATION.
17.01. Loss or Damage to Project.
1. Until the Terminate 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 SSLL or 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, SSLL and
the Permits.
17.02. Partial Loss or Damage to Project. Until the Terminate 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.
Development Agreement
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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 ofthe 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
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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 less than thirty (30) days prior to such assignment
being effective and the assignee shall be bound by the terms of this
Agreement to the same extent as would the Developer in the absence of
such assignment.
d. No assignee, purchaser, sublessee or acquirer of all or any part of the
Developer's rights and obligations with respect to any portion of the Boat
Docking Facilities shall in any way be obligated or responsible for any of the
Developer's obligations by virtue of this Agreement unless and until such
assignee, purchaser, sublessee or acquirer has expressly assumed the
Developer's obligations.
e. 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 within the Project without City's consent.
18.02. Successors and Assigns. The terms herein contained shall bind and inure to the benefit of
the City, and its successors and assigns, and the Developer and its successors and assigns,
except as may otherwise be specifically provided herein.
18.03. Notices.
1. All notices, demands, requests for approvals or other communications given by
either party to another shall be in writing, and shall be sent by registered or certified
mail, postage prepaid, return receipt requested or by courier service, or by hand
delivery to the office for each party indicated below and addressed as follows:
To the Developer:
To the City:
CBR Development I, LLC
2201 - 4th Street North
Suite 200
St. Petersburg, FL 33704
Attn: J. Michael Cheezem
City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
with copies to:
with copies to:
E.D. (Ed) Armstrong, III
P.O. Box 1368
Clearwater, FL 33757
Pam Akin, Esquire
Clearwater City Attorney
112 S. Osceola Avenue
Clearwater, FL 33756
and
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Greene & Schermer
1301 - 6th Avenue West
Suite 400
Bradenton, FL 34205
Attn: Robert F. Greene, Esquire
2. Notices given by courier service or by hand delivery shall be effective upon delivery
and notices given by mail shall be effective upon receipt. Refusal by any person to
accept delivery of any notice delivered to the office at the address indicated above
(or as it may be changed) shall be deemed to have been an effective delivery as
provided in this Section 18.03. The addresses to which notices are to be sent may
be changed from time to time by written notice 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 def~nse OJ ol~erwlse th~t 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.
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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,
Development Agreement
Page 127
ADOPTED
F:~mcV1Unter\City Development Agt.7.doc
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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 the thirteenth anniversary of the Effective
Date. Notwithstanding the foregoing, provided the SSLL remains in effect and no
default by Developer under this Agreement then exists, the Developer shall have the
option to renew this Agreement for five (5) successive renewal terms of ten (10)
years each, and such renewal options shall be deemed automatically exercised
unless written notice from Developer of intent to not renew is received by the City
prior to the expiration of the then current term.
Development Agreement
Page 128
ADOPTED
F:~mc'hunterICily Development Agt.7.doc
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2. Upon completion of the term of this Agreement, all parties hereto shall execute the
Agreement Expiration Certificate. The Agreement Expiration Certificate shall
constitute (and it shall be so provided in the certificate) a conclusive determination of
satisfactory completion of all obligations hereunder and the expiration of this
Agreement.
3. 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.
4. 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. Effective Date. The Effective Date shall be the date of the last signature to this Agreement.
Development Agreement
Page 129
ADOPTED
F:lmc'hunter'Cil:y Development Agt.7.doc
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IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals
affixed as of this _ day of , 200_.
THE CITY OF CLEARWATER, FLORIDA
Attest:
By:
By:
City Clerk
Mayor
Approved as to form and correctness:
, Esquire
City Attorney
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day of ,
200_, by and , Mayor and City Clerk,
respectively, for the City of Clearwater, Florida, on behalf of the City, who is 0 personally known to
me or 0 has produced a Florida driver's license or 0 as
identification.
NOTARY PUBLIC
Printed Name:
Commission No.
My Commission expires:
Development Agreement
Page 130
ADOPTED
F:~mclhunter'Cil:y Dewlopment Agt.7.doc
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CBR DEVELOPMENT I, LLC,
a Florida limited liability company
By: CBR Communities I, Ltd.,
a Florida limited partnership
Managing Member
By: JMC Communities of Clearwater V, Inc.
a Florida corporation, General Partner
By:
Name: J. Michael Cheezem
Title: CEO
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this _ day of ,
200_, J. Michael Cheezem, as CEO of JMC Communities of Clearwater V, Inc., a Florida
corporation, the General Partner of CBR Communities I, Ltd., a Florida limited partnership, the
Managing Member of CBR Development I, LLC, a Florida limited liability company, who is 0
personally known to me or 0 has produced a Florida driver's license or 0
as identification.
NOTARY PUBLIC
Printed Name:
Commission No.
My Commission expires:
Development Agreement
Page 131
ADOPTED
F:~mc\hunter\Cil:y Oewlopment Agt.7.doc
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EXHIBIT "A"
Boot Dock Improvements
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311 5U'S HOTEL/DEI'lUlI' CONTROUED
10 5U'S aTY CONTROLLED
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BELLE HARBOR
CLEARWATER BEACH
FAMILY RECREATION CENTER
MANDAlAY AVE.
Development Agreement
Page 132
ADOPTED
F:~mclilunter'Cil:y Development Agt.7.doc
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EXHIBIT "B"
CITY PROPERTY
LEGAL DESCRIPTION
Development Agreement
Page 133
ADOPTED
F:~mclhunter'C~y Development Agt.7.doc
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PROOF OF
OWNERSHIP
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PROOF OF OWNERSHIP
MANDALAYINVESTMENTS,LLC
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Lotll 013 through 48', Lou 6S tJu:OU01\ 71, llDd the SDuth u.7& t_t of'
loOC 64, c~'r1m BEl'lCH PARK, aD nIOQJ:dBd 10 Plat ~t 10, ..... .:.1,
of the rubUa !tIlOOtdl of 1'1~811.1 ClolJl'lty, P1odda.
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09/22/2004 12:27 FAX 7273918589
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PROOF OF OWNERSHIP
HUNTER HOTEL COMPANY, FORMERLY KNOWN AS FLORIDA
CLEARWATER BEACH HOTEL CO.
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09/22/2004 12:25 FAX 7273918589
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3065328
W~ip Jnbtntu't76 ~577
Mad, thU ' , /,g... {l~ 01 ~ .4. D. 19 6S
Between
OAvtD M. SCHWARTZ. joined by LILLIAN G. SCHWARTZ, his w~ta
r_
IW JIoltI& 1l'~
TIJT'aI.All)t .,....,..,. " , ...........,
TuHI..t.._'.-....,."'."'*-C1#
01 tktJ Oounty of H1l1sborough
partiea. of the fmt plJrt, tmd
tI corpoTatV~Rli"Ati~~~11L Bf4tu~H o~~L fJlo of Florida ,
hc.'I.Ilnl ~u pril'Wlpol pice, 01 bUl'n.eI' ~710 thIS Oou~tv of Pinellas tJ.P&d
Btate 01 " Flqrida plJrt1/ of th.. UCOM pGrt, whose mailing
. .!U~~~ iT. t:/p"':Clell1.Tater Beach Hotel, Clearwater, Florida.
W Imeseell1, that t1r.. ,aid part 1es of tM ft"t pDrt,!or 4714 in co""'i4w1i?~
of t1t., '~7n ofTen Dollars and other good and valuable consid8~-Daiti,
to them in. Jwn.rJ pGU, tho rfJo6lpt wn,fJno/ ~ hfJ7ebr aoknowWted, hove
tranCed, bardlJined, .old, alifJned, 7fJ~ed, r&ftJ,lf(l, t.n./fOfl64. Go7WtS1J64 G7Kl OOn-
ft717'/,e</, aM (ill th"tJ prelS.",t. do trant, bartain, nU, Glilm, n7nil., "el<<>>.,
,n/80t!, oonv.y and oonftnn..unto th.tJ .titd party of tM .eoond port and it. .vell:"-
,or, cznd G4dfPU fO/'lSver, all th.czt Cfrtczln. pClr"a of km4 lVf.nt aM bemt ~n the
Oounty 01 Pinellu and 8tcto 01 Florida, more partlculo"ly
aNcribed a.s follows..
and ,sUJttJ of
Florida
Locs 1 and 10 of MILLER'S REPLAT, as recorded
in Plat Book 24. page 17 of the Public lecords
of Pinellas County, Florida.
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Subject to restrictions and easements of record.
Subject to real property taxes for 1965.
TOGETHER with all buildings and structures situated thereon
and any and all interest the Grantors herein have in all
furniture, fi~tures, equipment, utilities, linens or other
things of value presently situated on the premises and used
in connection with the operation of the apartment house
situated ther$on.
Subject to tangible persQnal property taxes for 1965.
Together .wtth aU t~6 tlmfJmtJntB, n.lSr~tt<l7Mnu ~ opp~t/mo(lt&(;u, ,,!,tn.
lSfltJl1I pnlJil!ttJ, "'1M, ttutJ, mtlJr.,t and tlJUJttJ, aow"r and ritht of dow"r, NRlClr.wn.
r.ma€nder and ~umVlot ther.to btJlont€n.1 or In on1/fAli.lfJ a1>PtJrtafnmt;
To Have and to Hold the ..am.e PI. lef ,lmple 10rtsf1dr.
.lnd the 'aUl pl:Jrt ieli 0/ tM ftr.t prs"t do 1l0V811Clnt weth. foil.. ,OUl PfI"t71 0/
tn.e UCl>M pl:Jrt t1uJt they arEt ltJ.wfuJ~y .1Ii.~ed 01 th.e ,CIkL premi.l'N, th4t the1l aro
/1''' QI aU 'n.c~m.b,.a.nof, ~ tMt they have tooa "tht o~ ltJ.wfrIJ au.tnorlli7l
to leU tn.. .,une,' ClM that 'ouJ. port in 0/ tM ftt,e pan ifoth. h..rebJ/ fully WCU'rGnt
the UUfJ to .aid ltJ.n4, 0114 wlU de/end th.f 'cJr~e ataWt t1wJ 'ta.wfUl clc>>7rW 01 all
pOr,()7U UJMnuoever.
In Witness Whereof, th., .atd part ies 01 th.. Imt pDrt }/ofJIve A",.,.,u.)1.tc)
1ft the 1r Mnd' GM ,ta:.1 the day aMlIfJ4r above written.
Siped. Sealed aDd Dtlll"'erM lD Oar Prete_I
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ILLlAN G. .' scaw.U:rz
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08/22/2004 12:28 FAX 7273818588
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eo.-,. of HILLSBOROUGH
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D.R 2176 PAG(578
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I HEREBY CD.TIFY. T1wJt on. thb
.4.. D. 1965, bd/ord m4t pSrlon4llll apptlGTM
DAVID M. SCHWARTZ, joined by LILLIAN G. SCHWARTZ, his wife
ro me ~ to 1>d tM p6r,on,S duoribed in OM 'Who eucuted the 101'840;,71,1
C07W&ycm06 to
FLOR.IDA CLEARWATER BEACH HOTEL CO" a Florida corporation
and 'rJUfJrally CJck1iowledtfJd
the ~ution t1ureol to he their Iroo /lct and dHll for the. Ule. and PUrpO'6'
ther.... mmtionilld.
Wll'NK8S my rip,atur. Gnd otftcial ,eal at Tampa
ill. tM (7()unty 01 Hillsborough OM State 01 FloridIJ, the d(lV and
1IMT last tsf01'uaid.
day 01
My C(JIft,;,u"imr. Ez;pi1'u J - N - , ,
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Notary PulJUo
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FLORID1. CLEARWATER 'f;EACH HOTEL CO.
SOO )4anda.1a.y AYeIllle. Cld.nva.tar. i larilla 3]515
ofUuJ lAunf1l of Pinlllla. iff i~ Sfnf, of Florida.
fHIrlv of IJ&(J Ut:OJId 1JG1'f"
.~ Urn.t eh4s ,aid part/! of tM fi,.,t pArt, for air4 ~ Cf))J.JUUHlJioll of
~ '(UrI. 01 Ten Dollars ($10.00) Ind other good 8Ild vaiuabll! ~an&1duatl~
t<11t1Jn ;. ~pczid lTv #M raid pa.rtg oflM.'tlCf)M. part, eM receipt whAf'tJof i4 h4n1bJl
iUlmWlUd.tMl.;!ta.r Jrane<<l, ba~a.intd and, ,old to UI.e ,a,id 11(1.+,/ of u,. 8/:e01Jll pq.rl
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tJu Co_tv of Pinell{l5 . Staee of
Jl'%Dnda., eo lDie.
Lots 1, 2, !. 4, S. 49, 50, 51 and 52 of CLEARWATER BEACH PARK
SUBDlVlstON aecQJ:'ding to ~c ma.p or plat thereof as recorded i~ PllLt Book
10, 9a.1I1! 42 of thl! Public Record.s or Finella. CoWlty, Florida.
Togsthl!r with and including, but without warranty of litle, 311 1.a.lId. lyin8
""t1.tcdy vf the ....e.t line of said lota I, Z, 3, 4 and 5 to tho.. mean high water
~J:'1l; of the GWf of Me~c;o and tyins north of " westerly projection of tbe
louth liDI! 01 sald 10'1: 5, IU1d lying .outh ot a line projected westerly from the
1I0~c't cOn2cr of tahllot 1 and paraUel to the "outh lin.. oC .aid lot 1 alld
IlU ripuia:n right~ Ilppurtel\&Dt thereto.
Subject to rutrh:lioIlll and e&Bemel3ts of record and taxes Cor 1978 and
.\lb.equ~t yean. and liens and encumbran~e. of rl!I:O td.
(.) 1\Ot lndlvhJually and Without penonalliability, but a. lru8tl!l!, with. Cull POWl!l'
and authorHy I!ltker to protl!d, COlucrvC' and 00 sell, ll!;ue. encumber, or
ochcr"hc di.PClU of the 1'11&1 property deacribed herein.
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Df.' a I'UldIA W__ JIiIIl "... · ClIopJ
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1l~ ~fCAN '1':a:~Il n" II rlorida iorporation( WhJ;e _iHft9
lIdch'iijt:~s' <l p )_g,.1l1L~ . OUqh Arenue, IlIIIpa, Pt. .;13110 ,1__ ,
. ~...... UUI IUUKr ..... IN MIlU D !'lol:'i a v.... .U
JtrlAtlptd plcllf of flwiUaw,in ~ _Co&craty of Ji-llBborough UId Sf4lle 01 FlorlCla,
po.rt:y 0 fint pori. II HUN'lD nO'tEL COMPMfY, an Iowa
c:cxpo;r;at1on, who&email1ng:ailCll:essiIll500Kanaala).Avenue.Clllluwiltu
Beach, FL 34630.
of eM Co/uIfy o{ Il'inellas
of 1M Hciwl 1M"',
.ibu_utlf, fhG' 1M .Aid /Hln~ 01 1M {lll' /Hlrt. fo, "lid in r;G,wa,nWon of ~'1Im of
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p4fi1, d1~ r<<6pt UJn.reo( ;. hCftb;r Ultnollll<<lBed, IIu .,oI'lW. hartainld, Ibld, aliened, rerniHd,
iwIcGnd. t'Oft~ and ~nraM, aM .~ tMIIe IIl'dtftr. dol.h tNll.I, k,.ftln. "u. oMn, ...DIiM,
~, CGnllt,)' ~ t:OIl((rm UlUO W .aid party 0( lilt r<<oM p.srt, dill its
heir, Clllll ....f,fM forewr. ,dl thAI ClNPl ~ of land IYi"ll. cwllltlll6 ill 1M Cv~ of
pinellas 11M Sr.k of FIorid4, Jt\Ol'f ~f2IllIrl1 iimbed (UI /olI.OlIJ,j:
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Flo.dcla.
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dattlW . ... WM aKlIW UN! I~ eonwyallCt to
HuNTER ~OTEL COMPANY, an IOWa corporation,
_ ~ ~ W fZ*UIlora fM/ft'IV 6f~, (1ft ~t and rleetIu nch ~
/Gr 1M _ aNI JMII~ ~ ~ lIrid UlGt thq GHiud rhemo file o(fkMf ., '"
.td lItIrpoMtio... atii:l ~ ."Jt i""_nt " flt~ ~f .riillftd 0( IGid eorpoNlioll.
~ltzln. JIIY .~rultll oHkial-'., Cll!llN8t:er, III the
C-ay of Pinellas .rId &CZ"" of IJIJr;/;> eIw do)l ruod Yftf" Iut
~ ~;1~
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09/22/2004 12:24 F^X 1213918589
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OFf.REC.lllt 809
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HARRY S. CLDlE, !tOJlR!l
400 Cleyel~ SWlet
C1ean1llmr. FL 34615
NtU:m om;
SIlEUXN L. lftN), ~
110 E. Hil1~ AWl
~, It. 33604
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09/22/2004 12:24 FAX 7273918589
. .
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EXHIBIT -J\-
PIMBLLAS CO~ F4A
OPF.REC.BK 8099 PG 1441
r.ors 6, 7 W 8, ~ ~ PAM SlJSOMSICJI, as ~med ~n Plat
J!COk 10, Page 42, of d1e PIlb11c I1eCX:lEds of PinlUlI8 ():lunty, tlDdda,
~ w1tb the lend ~ tl1emUl en tba tiMQ!:rly side elf lDrS 6,
7 OM 8, liIU.c:b lam 1. b:Jund en the w:n 1Jy tlw __ h1~ _ter man&
of the QJ1f of MllC1QQ, ri ca t!lD Hxth anIi 5cUth by en (!XteNIlcn
watte;r;ly of tJw ~ ~ line of SII10 U1l 6 alYJ an exteNI1cn
westerly of tM Ikluth ~ JoUle of wr B t>> tht ..,.. b1~ w.ttAlr
marlcs of the Gllf of M!X1co iItd on the Il!Ilt by tM tMatem 1xlur\Oarl-
of wrs 6, , and. H, togetl'l8;r; \4th IJZfY ard ,,11 l1tton.l rights afP.ll:t8~t
~tlQ.
D..ar.iptloa, PlU.JJII.,n. DQCUIII~t:.Book.JI.g. 'Q99.14JS ~g.: , o~ ,
Order, 1 COIIIIIIlb2t:
~005/0'2
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OCT-1?-2033 12:24
MacFarlane Ferguson Clw
" ~-~..M.~~~'b'r hrW1N'~r ----..
EXHTBIT.A J
COMMn'MBNT
Attorneys'Tille Insurance Flm.c.t Inc.
ORLANDO, FLORIDA
Commitment To Insure Title
ATTORNEYs'1Tl'I..E INSURANCE FUND, lNC., a Florida corporation, hetein called THE FUND,
.for a valuable consideration, hereby Commits to issue its poliCy or policies of title insurance, as
identified in Schedule A, in favor of the p~ Insured named. hi. Schedule A, as owner or
InOrtgigee of the estate or interest covered hereby in the land desc:ribed or referred to in Schedule
A; subject to the provisions of Schedules A anA B and to the Conditions and Stipulations hereof.
Thi$ Commitment shall be effective only when the identity of the proposed Insured and the
amount of the polley or ~ committed for have been inserted in Schedule A heroofby mE
FUND, eithet ilt the.time of the Issuance of this Commitment Ot by ~t endorsemenl
This Conunibnentis preliminaIy to the issuano! of. such policy otpolicies of title htsurance and all
liability and obligatiims hereurider shall cease Il1\d terminate six ~ths after the. eHeetive ~te
hereof or when the policy ~ policies c:ommitted. for shall issue, whichever fhst OCCUIS, provided
that the failure to issue such policy or policies is not the fault of THE FUND. .
In W1fness Wheft.Of, ATIORNEYS' 'ITl'LE lNSURANCE FUND, lNC. has caused thisCommibnent
to be signed and sealed as of the effective date of Commitment shown. in Schedule A, the
Commitment to become valid when countersigned by an au~ signatory.
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Attorneys' TItle Insurance Fund, Ine.
By~~
Otades J. KovaleSki
President
. SERIAL
cooj 2353300
I
RJND FOAM 0 (IWV, 1186)
P.02
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OCT-17-20e3 12:25
MacFarlane Ferguson Clw
p.e3
FUND COMMrTMENT FORM
SCHEDULE A
Commitment No.: 2353300
Effective Date: . September 2, 1996
Agent's File Reference: ESe - THE POLICY ~O ~E ISSUED BEREONDBR
WILL SUPERSEDE ALL COVERAGE UNDER MP 1035904
1.
Policy or Policies to be issued:
Proposed Amount of
Insurance
OWNER'S:
Proposed Insured 1
$
MORTGAGEE: $9,500.000.00
. Proposed Insured: REPUBLIC: BANK
2.. 'The estate or interest in the land described or referred to in this
commitment is a fee' simple (if other, speoify same) and title
thereto is at the effective date hereof vested in:
~ HOTEL COMPANY, an Iowa .corpoJ:'atioJl, f/k/a CLEAAWATER :BEACH
HOTEL CO.
3. The land referred to in this commitment is described as follows:
SEE . JUlIIBIT -Aw ATTACHED HERETO AND MADE. A PUT !mlU10P BY
REFRRENCE .
ISSUED BY
MACFARLA.m3 FERGUSON
& McMULLEN
Poat Office Box 1669
Clearwater, FL 34617
#18922
Branch #3
AGENT NO.
OCT.-17-2003 12:25
MacFarlane Ferguson Clw
.
P.134
l!:XH:r;Jn;~ "A"
L~GAL D2SCR~P~~ON
Parcel 1 =
Th.t: pa.rt. of ~RAC'r A. o:t a lte-Sub. o~ Blook 10 and. 11 and
Lota ~ ~o 15, ~ncluB~ve, >>~ock " o~ the REVxS&D ~ OV
CLEARHATER BEACH, aa racorde~ ~n P1a~ BOok 19, paq. ",
o~ the p~l~c reco~ds oE P~n.llA. Coun~y, ~~or1da, ~a.c-
r1bed a8 ;fol1.ow..& neqUl at:. ~. .outhea8t co.rncu: o:f tha
.aid ~ract A .. shown au 3.68 ac~e., ~e P.O.B. be1ng a
po~nt at ~e ~nt.r..ct1on a~ tho no~th 1ine of ~~ymant
s~~ee~, as sa~d n.ymont S~.A~ L. .hown on ..Ld a.-Sub.
ot n10cks 10 And 11 and Lota 2 to 15, !nclu8~Vo, Block
9 ot th. Rav1aedHli.p ot C~earwate.r 15eac;h, w1.t:.h the w..~..
~~ly line of Handalay !load, ~d ~n ~N~ H 20.45'00.
~.,_ ~82.23 :teetl ~CS H 01- ~4' 00. a.,
1l0.~1 feet to the contor11n. o~ ~1Br S~e.t, .a .a~4
~~e= Street ~a ahown and 4841oaee4 .a A pUblio street
;1%\ tho R.aV~..4 Map 01: C1DarwatoJ:' ~eZlch, as X'ccorl!ed. .Ln.
Plat Book 11, page.S, o~ the publ~c recorda o~ Pin-llaa
COunt)', Plo2:'J.c1A, ~HENCJl: w..t: aJ.OD9' 'the cent:e-':'J.1.no at
aA1d Ambl.~ S~~..~, ~ZO.OO t.at MOL to th. v~~.~ ot ~.
Gul1: ot HoxiCOJ ~m::HCE in a .outb~~ly d1.2:actj.OD on a
Maan4ar1.nq 11.ne alonq th8_wa~er. o~ tho_Cul~ o~ Hcxl~o,
321.QO teet HOL eo tho cen~.r~n8 ot s.id BaY=Dnt St~.6tJ
~C2 a.at 385.00 ~OQ~ KO~ along s&Ld oan~c~1~h. o~
Baymont Stx'eat:. ~o a po.Ln't. .ca.-DO ~.et. sout;h o:! t;ho p.o.a. J
~HSNCE north 40.00 feet to the P.O.D.
?areel. 2.
Th. Norell. 20.00 .Eeet o~ AmbJ.ar Sb:e.t J..yJ.ngwest: o.~ the
east ~ine o~-LQt', pro~ecte4 aouth, as sho~ on the _p1at
o~ H~LLER'S ~LA'1', aa ~ocord.d ~n P1at BOok 26, ~ag. 17,
o~ the ~~l~c reco~c1. ~~ >>Lnoll.. COunty, rlorJ.da.
Parcel 3.
Lo'C. 1 ~4 10 ~n4 i:.ho South 80900 1:..t:. c~ Lot & o~ NXLLZ1\' S
REPLA~, .a .ooox4.4-Ln P~at Book 26, p.~. 17, o~ tho pub1.Lc,
~eQo~d. o~ P1nellas Coun~y, 71orida.
Parcel 4.
Lc)u 1 to 5 o~ Cr..EAlUlA~ER 2a!tACH 1IA1U(, as ii:oQord.ed s.n PlAt
~ook 10,.paq. 4Z~ o~~. ~ub11Q ~~cor4a o:! p1.no11a6 Co~t:~,
P~or.Lda.
P~rce1 5.
. ,
Lat.s 49 to 52 o~ CL~A~Jm. BEACH PJUUC;, .a r.corded 1.21 P1a't.
Eook 10, page 42, o~ tho publi~ records O~ >>1.na11AaCouaty,
~lo:,idlL.
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OCT~17-2003 12:25
MacFarlane Fersuson Clw
P.es
FUND COMMITMENT FORM
SCHEDULE B
I.
Commitment No.:
2353300
The following are the requirements to be complied with:
1.
II.
yment of the full consideration to, or for the account of,
the grantors or mortgagors.
Instruments creating the estate or interest to be insured which
must be executed, delivered and filed for record;
(a) Assignment of Mortgage and related documents ,properly
executed and recorded from NationsBankof Florida, F.A.,
f!k/a NCNB National Bank of Florida to Republic Bank of
those certain document a recorded in Q.R. Book 653J., page
1414, O.R. Book 6531, page 1341, O.R, Book 7737, page 2126,
public records of pinellas County, Florida.
(b). Assignment of Mortg~ge and related document a properly
executed and recorded from NationsBank of Florida, F.A. to
R.epublic Bank of that certain Mortgage recorded in O.R. Book
O.R~ Book 9092, page 2326 and O.R. Book 9092, page 2360,
public recorda of pinellas County, Florida.
(c) Partial release of mortgage' from Republic Bank,
properly executed by and recorded for tho~e parcels
described as Lots 6, I and 0, Clearwater Beach Park, Plat
Book 10, page 42 r publiC records of pinellas County r
Florida.
. (d) consolidation and Modif!cation of ft$ortgage properly
executed and recorded by and betw-een Republic Bank and
Hunter Hotel Company of. that certain mortgage recorded in
O.R. Book 6531, page 1414, public records of Pinellas
County, Florida. .
No ; A judgment s~arch bas been made in the name of the
proposed mortgagor ana, the results were negative.
Schedule, 'B of the policy or policies ~o be issued will contain
exceptions to the following matters unless the same are disposed of
to the s~tisfaction of The Fund:
claims or matters,
th lic records or
e e hereof but prior to
s for value of record the
eon covered by this commit-
'Any owner policy issued pursuant hereto will cqntain under
Schedule B the standard exceptions set forth at the inside
cover hereof. Any mortgagee policy will contain under Schedule
'B the standard exceptions unless an affidavit of possession and
a satisfactory current survey are submitted, an inspection of
the premises J.S made, it is determined the current year's taxeS
or special assessments have been paid, and it is determined
there is nothing of record which would give rise to mechanics'
liens which could take priority over the mortgage (where the
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OCT -17-2003 12: 26
MacFarlane Ferguson Clw
P.B6
liena would otherwise take priority, submission of waivers is
necessary) .
SEE CONTINUATION.. SIIEET ATTACHED FOR. ADDITIONAL EXCEPTIONS.
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OCT-17-2003 12:26
MacFarlane Ferguson Clw
P.07
3.
CONTINUATION OF EXCEPTIONS - COMMITMENT NO. 2353300
4.
5.
.~..~...
7.
.11.
8.
Restrictions - The plat of this subdivision reflects a 20 foot
building line aetback on each aide of Gulf Boulevard (now Gulfview
Boulevard). The fOllowing restrictions appear in Warranty Deed
dated 7/14/25 as recorded in Deed Record 307 "page 106 and in
Warranty Deed dated 10/14/26 and recorded in Deed Record 464, page
351, as to said Lots 1 through 5, inclusive: w. . . any building
erected on any ~ifty (50) feet of the above described property
other than a garage for private use.shall cost not less then Five
Thousand and NO/100 ($5,000.00) ,n The same restrictions appear in
Warranty need dated 6/3/25 and recorded in Deed Book 553, page 449,
as to said Lots 49 and 50.
Easement between Florida Clearwater Beach Botel Co., a Florida
corporation and Florida Power Corporation dated 6/6/68,' recorded
6/26/68 in O.R. Book 2859, page 76, public records of pinellas
County, Florida.
Subject to easement over the South 25 feet thereof for street
purposes as shown in that. certain instrument recorded in Deed Book
1550, page 629, public records of Pinellaa County, Florida~
.._SJ)bt~Q:t.._t.o.. __and__xeserYing_.. therefrom-....a.--pedest.r-ian . .easement--and-n.... ____ .__
walkway for the general public in perpetuity as described and
recorded in O.R. Book 2226, page 720, public recorda of Pinellas
County, Florida. . .
Subject to distribution easement in favor of Florida Power
Corporation dated 9/8/86, recorded 10/24/86 in Q.R. Book 6345, page
1137, 'public records' of Pinellas County, Florida.
Subject to' permit and guaranty contraot dated 3/10/50, recorded
3/11/50 in Deed Book 1256, page 479, as to said Lots 1 through 5,
inclusive, public .records 'of Pinellas County, Florida.
The rights, if any, of the public to use as a public beach or
recreation area any part of the. land lying or formerly lying
between the body of water abutting. the subject property and' the
natural line of vegetation, bluff, extreme high water line or other
apparent boundary line separating the publicly used area from the
upland private area as it may have existed prior to the
construction, if any, of seawall or bulkhead thereon.
Title to ~idelands or lands comprising the shores or bottoms of
navigable waters or lands beyond the harbor or bulkhead lines as
establiahed by government authority.
The property described herein beiog artificially filled land in
what waa fo:r:merly navigable waters is subj ect to any and all rights
of the United states gove~ent arising by reason of the United
States government control over navigable waters in the interest of
navigation and commerce. .
Riparian rights and righta of accretion and reliction are neither
guaranteed nor insured hereunder.
9.
10.
12.
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OCT-17-2003 12:26
13.
1.4.
J.5.
16.
17.
MacFarlane Ferguson Clw.
P.es
Subject to easement in favor of rlorida ~ower Corporation, dated
11/a/76,recorded 2/'},8/77 in O.R. Book 4515, page 605, public
records of Pinellas County, Florida.
Declaration of Tranafer of Density dated 4/8/87, recorded 4/16/87
in b.R. Book 6472, page 1147, public recorda of pinellas County,
Florida.
Subject to Distribution Easement in favor of Florida Power
Corporation recorded 12/10/87 in O.R. BoOk 6640, page 451, public
records of Pinellas County, Florida.
UCC-IFinancing Statement recorded a/30/9Sin O,R. Book 9092, page
2360,' public records of Pinellas county, Florida. ..
Subj ect to those matters as reflected on those certain surveys and
prepared by C.A. Peterson,. Inc., ident~fied as Clearwater Beach
Hotel, under work order 1457-S, dated 6/20/88, updated 6/B/95,
corrected 6/23/95 and last work revised 9/17/96. the following are
noted exceptionsr .
a. Encroachment of 5' high brick wall on North' property line
. (Sheet 1).
1.-- - h--_______._~___._.Q.!._~.-~~~'!':_~-;ay-.;:~p-9i- East__~Q~:I;~y_J,.in~LJ~b~~_t.._~l..!.__ ..... ._".n _._______..__________.
c. Building encroaches set back line per P1at as to Lots 1 - 5,
shown as Parcel Ii (Sheet 2,). '.
1
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d.
Encroachment 'of concrete wall, North property line of Parcel 5
!Sheet2).
(Sheet 1) Buildings, decks, shuffleboard and concrete wall
beyond CCCL.
(Sheet 1) Parking, 'sidewalk to include Baymont Str~et.
(Sheet 1) Retaining wall, curbing and sidewalk encroachment on
Mandalay Avenue.
e.
f.
g.
h.
(Sheet 1)
CUrbing encroachment on Amber Street.
NOTE: The following Florida approved Endorsements will be incorporated
into the final Mortgagee POlicy: Alta form(s) 9.
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TRAFFIC IMPACT
STUDY
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CLEARWATER BEACH RESORT
TRAFFIC STUDY
Submitted to:
City of Clearwater
Prepared For:
JMC Communities
Belle Harbor Sales Office
50 I Mandalay Avenue
Clearwater Beach, FL 33767
Prepared By:
Florida Design Consultants, Inc.
3030 Starkey Boulevard
New Port Richey, Florida 34655
(727) -849-7588
Date:
August 31, 2004
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1.0 INTRODUCTION
Clearwater Beach Resort is a proposed mixed-use development that will include a
267-room hotel, 120 dwelling units of condominium use, and a 12,000 square foot
(s.t:) specialty retail center. The project site is located south of Rockaway Street,
west of Mandalay A venue, east of the Gulf of Mexico, and north of San Marco
Street in the Clearwater Beach area of the City of Clearwater, Florida, see Figure
1. The existing Clearwater Beach Hotel (157 room) and a building formerly
operated as a night club will be removed to allow the project to proceed. This
study has been prepared following the methodology agreed upon with City of
Clearwater staff at a meeting held on July I, 2004; see copy of the methodology
letter contained in the Appendix.
2.0 EXISTING TRAFFIC CONDITIONS
Existing traffic counts were collected on Tuesday, August 10, 2004 by Adams
Traffic, Inc. for the Clearwater Beach Resort project. Traffic counts were taken
from 4:00 to 6:00 p.m. with subtotals taken every 15 minutes. The highest four
consecutive IS-minute increments that were taken are the PM Peak Rour. The
existing PM Peak Hour traffic counts were taken at the following intersections:
I. Mandalay Avenue at Papaya Street
2. Mandalay Avenue at San Marco Street
3. Mandalay Avenue at Baymont Street
4. Baymont Street at Poinsettia Avenue
The existing counts were adjusted using information from the Florida Department
of Transportation's 2003 Peak Season Factor Category Report (PSFCR). A factor
of 1.07 was applied to all counts to reach peak season volumes. A Total Traffic
Determination Sheet is provided in the Appendix to document these calculations.
The volumes were than analyzed using the Highway Capacity Software (RCS),
release 4.I.d. The Mandalay Avenue at Baymont Street intersection is signalized.
All other intersections reviewed are unsignalized. The result of this analysis are
that Baymont Street at Poinsettia Avenue currently operates at Level of Service
(LOS) A, Mandalay Avenue at San Marco Street and Mandalay Avenue at
Baymont Street operate at LOS B, and Mandalay A venue at Papaya Street
operates at LOS C. Since the acceptable operating condition for these roads is
LOS D, the intersections currently operate at acceptable levels of service. Copies
of the HCS computer runs are provided in the Appendix and on a CD.
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3.0 FUTURE BACKGROUND TRAFFIC
Traffic on the roadways that will be significantly impacted by travel from the
Clearwater Beach Resort was increased to the year 2007, the projected year that
the project will be completed. The background traffic was projected to increase
by 2 percent per year to the expected buildout in 2007.
4.0 PROJECT TRAFFIC
Project traffic has been estimated using information from the Institute of
Transportation Engineers (ITE's) Trip Generation Report, 7th Edition, 2003.
Table 1 provides the trip generation estimate for the existing and proposed
development on the Clearwater Beach Resort site. The existing development
consists of 157 occupied hotel rooms and the proposed development includes 120
condominiums/townhomes, 267 occupied hotel rooms, and a 12,000 square foot
specialty retail center.
Access to the Clearwater Beach Resort will come from a driveway to San Marco
Street, a main access through the Baymont Street at Mandalay Avenue, and a
drive between Baymont Street and Roackaway Street that connects to Mandalay
Avenue, called Drive 1 for this analysis. The current access to the site includes
these locations and an additional driveway to Mandalay Avenue north of San
Marco Street. Project traffic was added to future background traffic to determine
the future total volumes. As previously indicated, Table 1 identifies traffic
generated by the existing hotel on the site, as well as the proposed development.
At the project entrance drives, the total P.M. peak hour traffic from the proposed
development (154 inbound and 140 outbound trips) have been assigned to the
highway network.
The distribution of project trips to the highway network was based on the existing
traffic volumes turning at the Mandalay Avenue intersections with San Marco
Street and Baymont Street. The existing traffic volumes have 70% of the trips
traveling to and from the south, 25% to the north and 5% to the east along
Baymont Street. With the increased volumes that will result from the proposed
development, the trip distribution is expected to shift slightly to the south,
resulting in 75% traveling to the south, 20% to the north, and 5% to the east
'Illis distribution was used to assign projected trips to the highway network.
Beyond the project entrance drives, only the new traffic being added to the road
network has been identified. This is due to the fact that traffic from the existing
hotel was counted in the existing conditions analysis. The net new trips beyond
the project entrances is 109 inbound and 93 outbound vehicles in the P.M. peak
hour. Figure 2 identifies the background traffic, existing project traffic plus the
reassignment of project trips from the drive to be eliminated, and net new trips
project traffic at the intersections analyzed.
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5.0 FUTURE YEAR TRAFFIC ANALYSIS
The intersection and highway links in the study area were analyzed to determine
future year operation conditions. First the intersections were analyzed using the
HCS software. The results of this analysis are indicated in Table 2. As is
indicated, all intersections will operate at acceptable levels of service without
improvement. Copies of the HCS computer runs are provided in the Appendix
and an electronic version is provided on CD.
Highway link operation has been established using generalized peak hour
volumes from the FDOT 2002 Quality!Level of Service Handbook. Table 4-7
from that document, see Appendix for a copy, identifies directional peak hour
maximum volumes for various types of roadways. Mandalay Avenue, Baymont
Street, and Poinsettia Avenue are all Non-State Roadways with one travel lane in
each direction. Table 3 summarizes the link operating conditions. Listed in this
table are the roadway segments reviewed, the acceptable level of service, and
maximum service volume (SV) for the acceptable level of service indicated in the
FDOT Table 4-7. Also indicated are the 2007 background, project, and total
traffic on the link by direction and the projected level of service in the buildout
year of the facility. As is indicated, all road segments are projected to operate at
acceptable levels of service.
6.0 CONCLUSION
Based on the above review it is concluded that the proposed development of the
Clearwater Beach Resort can occur and allow the roadway network to operate at
acceptable levels of service.
T:\S3\Traffic \clearwater Beach Resort Traffic Study.doc
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:ri DESCRIPTION,
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~ ~ FLORIDA DESIGN CONSULTANTS, INC.
f] ENGINEERS. ENVIRONMENTALISTS. SURVEYORS 8 PLANNERS
3030 Starkey Blvd, New Pori Richey FL 34655
Tel, (727) 849-7588 - Fax, (727) 848-3648
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PAPAYA STREET
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PROJECT No. EPN,
997-250 53
DATE, FIGURE.
8/31/04
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11 DESCRIPTION,
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. ~ FLORIDA DESIGN CONSULTANTS, INC.
1.-:. 11 ENGINEERS. ENVIRONMENTALISTS. SURVEYORS 8 PLANNERS
.... 3030 Starkey Blvd. New Port Richey FL 34655
Tel. (727) 849-7588 - Fax, (727) 848-3648
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LEGEND
X - BACKGROUND TRAFFIC
(X+O) - EXISTING PROJECT TRAFFIC + REDISTRIBUTED PROJECT TRIPS
[X] - FUTURE PROJECT TRIPS
2007 TRAFFIC ASSIGNMENT
PROJECT No. EPN.
997-250 53
DA TE. FIGURE,
8/31/04
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Table 1. Trip Generation
A. Existing Development
PM Peak Hour
Land Use ITE LUC Size Units Daily Inbound Outbound Total
Hotel (Occupied Rooms) 310 157 Room 1 ,400 45 47 92
B. Proposed Development
PM Peak Hour
Land Use ITE LUC Size Units Daily Inbound Outbound Total
Condominium / Townhome 230 120 DU 749 47 23 70
Hotel (Occupied Rooms) 310 267 Room 2,382 85 88 173
Specialty Retail Center 814 12,000 Sq.Ft. 551 22 28 50
Total 3,682 154 140 293
Less Existing Development 1 ,400 45 47 92
Net New Trips 2,282 109 93 202
Source: ITE Trip Generation, Seventh Edition, 2003
Date: August 24, 2004
T:\53\Traffic\[Tables.xls]lntersection Anal
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Table 2. Intersection Analysis
2007
Existing Total Traffic
Intersection LOS LOS
Mandalay at Papaya C C
Mandalay at San Marco B B
Mandalay at Baymont B B
Mandalay at Drive 1 NA B
Baymont at Poinsettia A A
Date: August 30, 2004
T:\53\ Traffic\[T ables.xls]1 ntersection Anal
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Table 3. Link Analysis 2007 Total Traffic
Acceptable
Road Limits Direction LOS Max SV Background Project Total LOS
Mandalay S of Papaya NB D 760 415 82 497 D
to N of Bavmont SB D 760 493 70 563 D
Bavmont Mandalav to EB D 760 52 8 60 C
Poinsettia WB D 760 148 5 153 C
Poinsettia S of Baymont NB D 760 67 4 71 C
SB D 760 29 4 33 C
Date: August 30, 2004
T:\53\Traffic\[Tables.xls]Link Anal
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FLORIDA DESIGN CONSULTANTS, INC,
Civil Engineering · Surveying . Transportation Planning & Engineering . Land Planning . Environmental · Landscape Architecture LC-26000206
July 8, 2004
Mr. Bennett Elbo
Traffic Operations Engineer
100 South Myrtle Avenue
Suite 220
Post Office Box 4748
Clearwater, Florida 33758-4748
Re: Clearwater Beach Hotel Resort
Transportation Methodology
Dear Mr. Elbo:
Thanks for meeting with Mr. John Hobach, of JMC Communities, and me on July 1, 2004 to discuss the
methodology for a traffic study to be prepared for this project. This letter is being written to confirm the
discussions of our meeting.
. A traffic study will be undertaken to assess the impact of the proposed development on the surrounding
roads. As discussed in our meeting, the land uses proposed for the project include a 260 room hotel, 120
dwelling units of condominium use, and a 10;000 s.f. specialty retail center. The project site is located
on the south side of Rockaway Street, west of Mandalay Avenue, and north of San Marco Street. The
existing 151" room Clearwater Beach Hotel will be removed to allow the project to proceed. As also
indicated in our meeting, another building on the property, which formerly operated as a night club, will
also be removed as part of this renovation.
The traffic study will look at the trips to be generated by the proposed development using appropriate
Land Use Codes from the Institute of Transportation Engineers informational report Trip Generation, 7th
Editio~ 2003. Internal capture between the proposed land uses' will be estimated to determine the total
-number of external trips. Trips generated by the existing hotel will be identified and subtracted from the
external trips resulting from the proposed land uses to determine the number of new trips added to the
highway network.
n__ . _.. _
- .
The project study area will include Mandalay Avenue from just north of the Roundabout to Baymont
Street, Poinsetta A venue from just north of the Roundabout to Baymont Street, and Baymont Street from
Mandalay Avenue to Poinsetta Avenue. Existing PM Peak Hour traffic counts will be obtained at the
following locations: Mandalay Avenue at Papaya Street, Mandalay Avenue at San Marco Street,
Mandalay Avenue at Baymont Street and Baymont Street at Poinsetta Avenue. The counts will be taken
from 4:00 to 6:00 p.m. with subtotals taken every 15 minutes on a Tuesday, Wednesday or Thursday.
. The highest four consecutive 15 minute increments will be the PM Peak Hour.
3030 Starkey Boulevard · New Port Richev. FL 34655
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Mr. Bennett Elbo
July 8, 2004
Page 2
The Peak Hour trips will be adjusted to annual average based on the Florida Department of
Transportation's Peak Season Factor Category Report 2003 for Pinellas County.
Project trip distribution to the highway network will be based on the observed turning movements
during the traffic count. A figure will be prepared to identify project trip distribution to the surrounding
roads. The traffic study will review the projected level of service at the intersections counted.
Operation of the highway links on Mandalay Avenue, Baymont Street, and Poinsettia Avenue will also
be reviewed.
Any improvements needed will be identified in the traffic report. Two copies of the report along with a
CD containing the computer analysis of intersections and links will be provided to the City of
Clearwater. .
If you have any questions or suggested revisions concerning this methodology statement, please contact
me.
c:
Paul Burtels, City of Clearwater
Ryan Brinson, City of Clearwater
John Hobach, JMC Communities
Ed Mazur, Florida Design Consultants, Inc.
FDC File No: 997-250-40.06
/bit
K:\Clearwatcr Beach Hotel\Lettc:rs\E1bo.doc
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PI.ant City, Fl 33564
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Tel:(813) 763-7763 Fax:(813) 659-8688
PAGE 87
ADAMS TRAFFIC .
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PAGE 132
Project No.: 041'lfJ
Turning Movement Count
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Project No.: ~
Turning Movement Count
Field Data Sheet
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PAGE 18
~-l'i
I Print Date: Aur/2612004 Florida Department of Transportation
,
I PINELLAS COUN1YWIDE Transportation Statistk8 Office
2003 Peak Season Factor Category Report
MOCF = 0.94
Category: 1500 ~ Dates SF PSCF
I 1 01/01/2003 - 01/04/2003 1.05 1.12
2 01/0512003 - 01/11/2003 1.05 1.12
3 01/12/2003 - 01/1812003 1.05 1.12
I 4 01119/2003 - 01125/2003 1.03 1.10
5 01/26/2003 - 02/01/2003 1.00 1.06
6 02/02/2003 - 02/08/2003 0.98 1.04
I '" 7 02/09/2003- 02/15/2003 0.96 1.02
'" 8 02/16/2003 - 02l2'lJ2oo3 0.95 1.01
'" 9 02/23/2003 - 03/01/2003 0.94 1.00
'" 10 03/02/2003 - 03/0812003 0.93 0.99
I '" 11 03/09/2003 - 03/15/2003 0.93 0.99
'" 12 03/16/2003 - 03/2212003 0.93 0.99
'" 13 03/23/2003 - 03/29/2003 0.93 0.99
I '" 14 03130/2003 - 04/05/2003 0.93 0.99
'" 15 04/06/2003 - 04/1212003 0.93 0.99
* 16 04/13/2003 - 04/19/2003 0.94 1.00
'" 17 04/20/2003 - 04/2612003 0.95 1.01
I '" 18 04/27/2003 - 05/03/2003 0.96 1.02
'" 19 05/04/2003 - 05/10/2003 0.97 1.03
20 05/11/2003 - 05/1712003 0.98 1.04
I 21 05/18/2003 - OS/2412003 0.99 1.05
22 OS/25/2003 - 05131/2003 0.99 1.05
23 06/01/2003 - 06/07/2003 1.00 1.06
I 24 06/08/2003 - 06/14/2003 1.00 1.06
25 06/15/2003 - 06/2112003 1.01 1.07
26 06/2212003 - 06/28/2003 1.00 1.06
I 27 06/29/2003 - 07/05/2003 1.00 1.06
28 07/06/2003 - 07/1212003 1.00 1.06
29 07/13/2003 - 07/19/2003 1.00 1.06
30 07/20/2003 - 07/2612003 1.00 1.06
I 31 07/27/2003 - 08/0212003 1.00 1.06
32 08/03/2003 - 08/09/2003 1.01 1.07
33 08/10/2003 - 08/16/2003 1.01 L07
I 34 08/17/2003 - 08/23/2003 1.02 1.09
35 08/24/2003 - 08130/2003 1.03 1.10
36 08131/2003 - 09/06/2003 1.04 1.11
I 37 09/07/2003 - 09/13/2003 1.04 1.11
38 09/14/2003 - 09120/2003 1.05 1.12
39 09/21/2003 - 09/27/2003 1.04 1.11
40 09/28/2003 - 10/04/2003 1.04 1.11
I 41 10/05/2003 - 10/11/2003 1.03 1.10
42 10/1212003 - 10/18/2003 1.02 1.09
43 10/19/2003 - 10/2512003 1.03 1.10
I 44 10/2612003 - 11101/2003 1.03 1.10
45 11/0212003 - 11/08/2003 1.04 1.11
46 11109/2003 - 11/15/2003 1.04 1.11
I 47 1111612003 - 11/22/2003 1.04 1.11
48 11/23/2003 - 11/29/2003 1.05 1.12
49 11130/2003 - 12/06/2003 1.05 1.12
50 12/07/2003 - 12/13/2003 1.05 1.12
I 51 12/14/2003 - 12/20/2003 1.05 1.12
52 12/21/2003 - 12/27,/2003 1.05 1.12
53 12/2812003 - 12/31/2003 1.05 1.12
I A-15
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I Analyst: SMV
Agency/Co.: FDC
Date Performed: 8/17/2004
Analysis Time Period: PM Peak Hour
I Intersection: Mandalay at Papaya
Jurisdiction: County
Units: U. S. Customary
I Analysis Year: 2004
Project ID: Clearwater Beach Hotel Resort
East/West Street: Papaya Street
I North/South Street: Mandalay Avenue
Intersection Orientation: NS
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HCS2000: Unsignalized Intersections Release 4.1d
TWO-WAY STOP CONTROL SUMMARY
Major Street:
Vehicle
Approach
Movement
1
L
Volumes and
Northbound
2
T
Volume
Peak-Hour Factor, PHF
Hourly Flow Rate, HFR
Percent Heavy Vehicles
Median Type/Storage
RT Channelized?
Lanes
Configuration
Upstream Signal?
Approach
Movement
Minor Street:
19
0.95
20
4
Undivided
365
0.95
384
o 1
LTR
No
7
L
Westbound
8
T
13
T 0.-95-
13
4
2
0.95
2
4
o
1
LTR
- 997-250
Study period (hrs):
0.25
Adjustments
3
R
7
0.95
7
o
9
R
9
0.95
t'\
.:J
4
No
o
Southbound
4 5 6
L T R
12 452 2
0.95 0.95 0.95
12 475 2
4
/
0 1 0
LTR
No
Eastbound
10 11 12
L T R
1 1 16
0.95 0.95 0.95
1 1 16
4 4 4
0
/ No /
0 1 0
LTR
Service
Eastbound
11
LTR
12
Volume
Peak Hour Factor, PHF
Hourly Flow Rate, HFR
Percent Heavy Vehicles
Percent Grade (%)
Flared Approach: Exists?/Storage
Lanes 0
Configuration
Delay, Queue Length, and Level of
Approach NB SB Westbound
Movement 1 4 -- 7 fl 9
Lane Config LTR LTR LTR
v (vph) 20 12 24
C (m) (vph) 1075 1157 307
v/c 0.02 0.01 0.08
95% queue length 0.06 0.03 0.25
Control Delay 8.4 8.1 17.7
LOS A A C
Approach Delay 17.7
Approach LOS C
10
18
506
0.04
0.11
12.4
B
12.4
B
4-11
~.
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HCS2000: Unsignalized Intersections Release 4.1d
TWO-WAY STOP CONTROL SUMMARY
Analyst: SMV
Agency/Co.: FDC
Date Performed: 8/17/2004
Analysis Time Period: PM Peak Hour
Intersection: Mandalay at San Marco
Jurisdiction: County
Units: U. S. Customary
Analysis Year: 2004
Project ID: Clearwater Beach Hotel Resort - 997-250
East/West Street: San Marco Street
North/South Street: Mandalay Avenue
Intersection Orientation: NS Study period (hrs): 0.25
Major Street:
Vehicle
Approach
Movement 1
L
Volume
Peak-Hour Factor, PHF
Hourly Flow Rate, HFR
Percent Heavy Vehicles
Median Type/Storage
RT Channelized?
Lanes
Configuration
upstream Signal?
Minor Street: Approach
Movement
Volumes and Adjustments
Northbound
2 3
T R
12 348
0.95 0.95
12 366
5
Undivided
o
0.95
o
o 1 0
LTR
No
Westbound
789
L T R
Volume
Peak Hour Factor, PHF
Hourly Flow Rate, HFR
Percent Heavy Vehicles
Percent Grade (%) 0
Flared Approach: Exists?/Storage
Lanes
Configuration
Southbound
4 5 6
L T R
0 455 1
0.95 0.95 0.95
0 478 1
5
/
0 1 0
LTR
No
Eastbound
10 11 12
L T R
3 0 15
0.95 0.95 0.95
3 0 15
5 5 5
0
/ No /
0 1 0
LTR
Delay,
NB
1
LTR
Approach
Movement
Lane Config
v (vph)
C (m) (vph)
v/c
95% queue length
Control Delay
LOS
Approach Delay
Approach LOS
12
1068
0.01
0.03
8.4
A
Queue
SB
4
LTR
Length, and Level of
Westbound
7 8 9
Service
Eastbound
10 11
LTR
12
o
1176
0.00.
0.00
8.1
A
18
509
0.04
0.11
12.3
B
12.3
B
A-l~
I
HCS2000: Signalized Intersections Release 4.1d
I Analyst: SMV
Agency: FDC
Date: 8/17/2004
I Period: PM Peak Hour
Project ID: Clearwater Beach Hotel
E/W St: Baymont Street
I
Inter.: Mandalay at Baymont
Area Type: All other areas
Jurisd: County
Year : 2004
Resort - 997-250
N/S St: Mandalay Avenue
I
No. Lanes
LGConfig
I Volume
Lane Width
RTOR Vol
I Duration
SIGNALIZED INTERSECTION SUMMARY
I Westbound I Northbound I Southbound
I L T R 1 L T R I L T R
I I 1
I 0 1 0 I 0 1 0 1 0 1 0
1 LTR I LTR I LTR
124 2 113 113 328 15 134 416 6
I 12.0 I 12.0 I 12.0
I 0 I 0 I 0
I Eastbound
I L T R
I
I 0 1 0
I LTR
17 2 12
I 12.0
I 0
0.25
Area Type: All other areas
Signal Operations
1 2 3 4 I 5 6 7 8
A I NB Left A
A I Thru A
A I Right A
I Peds
A I SB Left A
A I Thru A
A I Right A
I Peds
I EB Right
I WB Right
I Phase Combination
EB Left
Thru
Right
I Peds
WB Left
Thru
I Right
Peds
NB Right
I SB Right
Green
Yellow
All Red
I
Appr/
I Lane
Grp
I LTR
I Westbound
LTR 536
I Northbound
I Southbound
I LTR
I
30.0
4.0
2.0
45.0
4.0
2.0
Cycle
Intersection Performance Summary
Adj Sat Ratios Lane Group
Flow Rate
(s)
Length: 87.0
sees
Approach
Lane
Group
Capacity
Delay LOS
v/c
g/C
Delay LOS
Eastbound
538
1560
0.04
0.34
19.0
B
19.0
B
1555
0.27
0.34
20.9
C
20.9
C
LTR
919
1777
0.41
0.52
13.1
B
13.1
B
897
1735
0.54
0.52
14.7
B
14.7
B
Intersection Delay = 15.1
(sec/veh)
Intersection LOS = B
~-1<?
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Analyst: SMV
I Agency/Co.: FDC
Date Performed: 8/17/2004
Analysis Time Period: PM Peak Hour
I Intersection: Baymont at Poinsettia
Jurisdiction: County
Units: U. S. Customary
I Analysis Year: 2004
Project ID: Clearwater Beach Hotel Resort - 997-250
East/West Street: Baymont Street
North/South Street: Poinsettia Avenue
I Intersection Orientation: EW
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HCS2000: Unsignalized Intersections Release 4.1d
TWO-WAY STOP CONTROL SUMMARY
0.25
Study period (hrs):
Adjustments
Vehicle
Approach
Movement
Volumes and
Eastbound
2
T
Westbound
4 5 6
L T R
12 92 0
0.95 0.95 0.95
12 96 0
3
/
0 1 0
LTR
No
Southbound
10 11 12
L T R
Major Street:
3
R
1
L
35
0.95
36
Volume
Peak-Hour Factor, PHF
Hourly Flow Rate, HFR
Percent Heavy Vehicles
Median Type/Storage
RT Channelized?
Lanes
Configuration
Upstream Signal?
o
0.95
o
3
Undivided
16
0.95
16
o
o 1
LTR
No
Northbound
8
T
Approach
Movement
Minor Street:
9
R
7
L
10
0.95
10
3
o
0.95
o
3
o
54
0-.95
56
3
Volume
Peak Hour Factor, PHF
Hourly Flow Rate, HFR
Percent Heavy Vehicles
Percent Grade (%)
Flared Approach: Exists?/Storage
Lanes 0
Configuration
o
/
/
No
o
1
LTR
Service
Southbound
11
Length, and Level of
Northbound
8
LTR
Delay,
EB
1
LTR
Queue
WB
4
LTR
Approach
Movement
Lane Config
12
10
9
-~
..,
I
66
855
0.08
0.25
9.6
A
9.6
A
12
1548
0.01
0.02
7.3
A
o
1491
0.00
0.00
7.4
A
v (vph)
C (m) (vph)
vie
95% queue length
Control Delay
LOS
Approach Delay
Approach LOS
l1..- ? I')
HCS2000: Unsignalized Intersections Release 4.ld
TWO-WAY STOP CONTROL SUMMARY
Major Street:
1
L
Volumes and
Northbound
2
T
Study period (hrs):
0.25
Adjustments
3
R
Southbound
4 5 6
L T R
12 549 2
0.95 0.95 0.95
12 577 2
4
/
0 1 0
LTR
No
Eastbound
10 11 12
L T R
1 1 17
0.95 0.95 0.95
1 1 17
4 4 4
0
/ No /
0 1 0
LTR
Volume
Peak-Hour Factor, PHF
Hourly Flow Rate, HFR
Percent Heavy Vehicles
Median Type/Storage
RT Channelized?
Lanes
Configuration
Upstream Signal?
20
0.95
21
4
Undivided
469
0.95
493
o 1
LTR
No
8
0.95
8
o
Minor Street:
Approach
Movement
7
L
Westbound
8
T
9
R
Volume
Peak Hour Factor, PHF
Hourly Flow Rate, HFR
Percent Heavy Vehicles
Percent Grade (%)
Flared Approach: Exists?/Storage
Lanes 0
Configuration
14
0.95
14
4
2
-0.95
2
4
o
9
0.95
9
4
No
o
1
LTR
Delay, Queue Length, and Level of Service
Approach NB SB Westbound Eastbound
Movelfl\::nt 1 4 7 8 9 10 11 ~ ,.,
.!.<-
Lane Config LTR LTR LTR LTR
v (vph) 21 12 25 19
C (m) (vph) 985 1053 222 426
v/c 0.02 0.01 0.11 0.04
95% queue length 0.07 0.03 0.38 0.14
Control Delay 8.7 8.5 23.3 13.8
LOS A A C B
Approach Delay 23.3 13.8
Approach LOS C B
~ -? 1
I,
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HCS2000: Unsignalized Intersections Release 4.1d
Major Street:
Volume
Peak-Hour Factor, PHF
Hourly Flow Rate, HFR
Percent Heavy Vehicles
Median Type/Storage
RT Channelized?
Lanes
Configuration
Upstream Signal?
Minor Street:
Approach
Movement
TWO-WAY STOP CONTROL SUMMARY
Study period (hrs):
0.25
Adjustments
1
L
Volumes and
Northbound
2
T
3
R
18
0.95
18
5
Undivided
445
0.95
468
o
0.95
o
o 1
LTR
No
o
7
L
Westbound
8
T
9
R
Volume
Peak Hour Factor, PHF
Hourly Flow Rate, HFR
Percent Heavy Vehicles
Percent Grade (%)
Flared Approach: Exists?/Storage
Lanes
Configuration
o
Southbound
4 5 6
L T R
0 542 1
0.95 0.95 0.95
0 570 1
5
/
0 1 0
LTR
No
Eastbound
10 11 12
L T R
4 0 26
0.95 0.95 0.95
4 0 27
5 5 5
0
/ No /
0 1 0
LTR
Delay,
NB
1
Approach
Movement
Lane Config
LTR
v (vph)
C (m) (vph)
v/c
95% queue length
Control Delay
LOS
Approach Delay
Approach LOS
18
987
0.02
0.06
8.7
A
Queue
SB
4
LTR
Length, and Level of
Westbound
8
9
Service
Eastbound
11
LTR
12
I 7
I <<".
o
1078
0.00
0.00
8.3
A
10
31
447
0.07
0.22
13.7
B
13.7
B
A-22
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HCS2000: Signalized Intersections Release 4.1d
Analyst: SMV Inter.: Mandalay at Baymont
Agency: FDC Area Type: All other areas
Date: 8/17/2004 Jurisd: County
Period: PM Peak Hour w/project Traffic Year : 2007
Project ID: Clearwater Beach Hotel Resort - 997-250
E/W St: Baymont Street N/S St: Mandalay Avenue
SIGNALIZED INTERSECTION SUMMARY
I Eastbound 1 Westbound I Northbound I Southbound
I L T R I L T R 1 L T R I L T R
I 1 I I
1 0 1 0 I 0 1 0 I 0 1 0 I 0 1 0
1 LTR I LTR I LTR I LTR
125 8 71 125 8 120 181 369 16 136 453 29
I 12.0 I 12.0 1 12.0 I 12.0
I 0 I 0 I 0 1 0
No. Lanes
LGConfig
Volume
Lane Width
RTOR Vol
0.25
Duration
Area Type: All other areas
Signal Operations
3 4
45.0
4.0
2.0
Cycle
Intersection Performance Summary
Adj Sat Ratios La~e Group
Flow Rate
(s)
Phase Combination 1
EB Left A
Thru A
Right A
Peds
WB Left
Thru
Right
Peds
NB Right
SB Right
Green
Yellow
All Red
2
A
A
A
30.0
4.0
2.0
Appr/
Lane
Grp
Lane
Group
Capacity
v/c
g/C
Eastbound
LTR
521
1512
0.21
0.34
Westbound
LTR
532
1543
0.30
0.34
Northbc'..:nd
LTR
781
1510
0.63
0.52
Southbound
LTR
885
1711
0.62
0.52
Intersection Delay = 17.3 (sec/veh)
NB
Left
Thru
Right
Peds
Left
Thru
Right
Peds
Right
Right
5
A
A
A
6 7
8
SB
EB
WB
A
A
A
Length: 87.0
sees
Approach
Delay LOS
Delay LOS
C
20.3
C
20.3
21.2
16.6
16.2
C
21.2
C
B
16.6
B
B
16.2
B
Intersection LOS
B
A. -2 ~
I.
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HCS2000: Unsignalized Intersections Release 4.1d
TWO-WAY STOP CONTROL SUMMARY
Major Street:
1
L
Volumes and
Eastbound
2
T
Study period (hrs):
0.25
Adjustments
41
0.95
43
o
9
R
10
0.95
10
3
No
o
74
838
0.09
0.29
9.7
A
9.7
A
Westbound
4 5 6
L T R
12 99 0
0.95 0.95 0.95
12 104 0
3
/
0 1 0
LTR
No
Southbound
10 11 12
L T R
o
0.95
o
3
Undivided
18
0.95
18
o 1
LTR
No
7
L
Northbound
8
T
Volume
Peak-Hour Factor, PHF
Hourly Flow Rate, HFR
Percent Heavy Vehicles
Median Type/Storage
RT Channelized?
Lanes
Configuration
Upstream Signal?
3
R
Minor Street:
Approach
Movement
Volume
Peak Hour Factor, PHF
Hourly Flow Rate, HFR
Percent Heavy Vehicles
Percent Grade (%)
Flared Approach: Exists?/Storage
Lanes 0
Configuration
61
0.95
64
3
o
0.95
o
3
o
o
/
/
1
LTR
Delay,
EB
1
LTR
Approach
Movemeht
Lane Config
Queue
WB
4
LTR
Length, and Level of
Northbound
8
LTR
9
Service
Southbound
11
12
7
10
v (vph)
C (m) (vph)
v/c
95% queue length
Control Delay
LOS
Approach Delay
Approach LOS
o
1481
0.00
0.00
7.4
A
12
1536
0.01
0.02
7.4
A
~ -? 4
HCS2000: Unsignalized Intersections Release 4.1d
Volume
Peak Hour Factor, PHF
Hourly Flow Rate, HFR
Percent Heavy Vehicles
Percent Grade (%)
Flared Approach: Exists?/Storage
Lanes
Configuration
Major Street:
Volume
Peak-Hour Factor, PHF
Hourly Flow Rate, HFR
Percent Heavy Vehicles
Median Type/Storage
RT Channelized?
Lanes
Configuration
Upstream Signal?
I Minor Street:
I
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Approach
Movement
TWO-WAY STOP CONTROL SUMMARY
Study period (hrs):
0.25
1
L
Volumes and
Northbound
2
T
Adjustments
3
R
Southbound
4 5 6
L T R
506 2
0.95 0.95
532 2
/
1 0
TR
No
Eastbound
10 11 12
L T R
5 12
0.95 0.95
5 12
4 4
0
/ /
1 1
L R
21
0.95
22
4
Undivided
493
0.95
518
o
LT
1
No
7
L
Westbound
8
T
9
R
o
Delay,
NB
1
LT
Approach
Movement
Lane Config
v (vph)
C (m) (vph)
v/c
95% queue length
Control Delay
LOS
Approach Delay
Approach LOS
22
1024
0.02
0.07
8.6
A
Queue Length, and Level of Service
SB Westbound Eastbound
4 7 8 9 10 11
L
12
R
5
229
0.02
0.07
21.1
C
12
543
0.02
0.07
11. 8
B
14.5
B
fl. -2~
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TABLE 4 - 7
GENERALIZED PEAK HOUR DIRECTIONAL VOLUMES FOR FLORIDA'S
URBANIZED AREAS*
UNINTERRUPTED FLOW HIGHWAYS
Level of Service
ABC D
100 340 670 9SO
1,060 1,720 2,500 3,230
1,600 2,590 3,740 4,840
STATE TWO-WAY ARTERIALS
Class I (>0.00 to 1.99 signalized intersections per mile)
Level of Service
B C
220 720
1,530 1,810
2,330 2,720
3,030 3,460
Lanes Divided
I Undivided
2 Divided
3 Divided
Lanes Divided
I Undivided
2 Divided
3 Divided
4 Divided
A
D
860
1,860
2,790
3,540
..
2SO
380
490
Class II (2.00 to 4.SO signalized intersectioas per mile)
Level of Service
B C
100 590
220 1,360
340 2,110
440 2,790
Lanes Divided
I Undivided
2 Divided
3 Divided
4 Divided
A
D
810
1,710
2,570
3,330
..
..
..
..
Class II( (mon: lhan 4.5 signalized intersectioas per mile and not
within primary city ceolrIl business district of an
urbanized area over 750,(00)
FREEWAYS
E
1,300
3,670
5,500
Interchange spacing ~ 2 mi. apart
Level of Service
B 'C
2,110 2,940
3,260 4,550
4,410 6,150
5,560 7,760
6,710 9,360
D E
3,580 3,980
5,530 6,ISO
7,480 8,320
9,440 10,480
11,390 12,650
0 E
3,440 3,910
5,410 6,150
7,380 8,380
9,340 10,620
11,310 12,8SO
Lanes
2
3
4
5
6
A
1,270
1,970
2,660
3,360
4,OSO
E
890
...
...
...
Interchange spacing < 2 mi. apart
Level of Service
B C
1,840 2,660
2,890 4,180
3,940 5,700
4,990 7,220
6,040 8,740
Lanes
2
3
4
5
6
A
1,130
1,780
2,340
3,080
3,730
E
850
1,800
2,710
3,500
BICYCLE MODE
(Note: Level of service for the bicycle mode in this table is based on roadway
geometries at 40 mpb posted speed and lnffic conditions, not number of
bicyclists using the facility.) (Multiply motorized vehicle volumes shown below
by number of directioQal roadway lanes 10 determine maximum service volumes.)
Paved Shoulder! Level of Service
Level of Service Bicycle Lane
Lanes Divided A B C 0 E Coveage A B C 0 E
I Undivided .. .. 280 660 810 0-49% .. .. 170 720 >720
2 Divided .. .. 6SO 1,510 1,720 50--84% .. 130 210 >210 ...
3 Divided .. .. 1,020 2,330 2,580 85-100'.4 160 380 >380 ... ...
4 Divided .. .. 1,350 3,070 3,330
Class IV (mon: than 4.5 signalized interscctioos per mile and within
primary city central business district of an urbanized area
over 7SO,(00) .
Level of Service
Lanes Divided A B C
I Undivided .. .. 270
2 Divided .. .. 6SO
3 Divided .. .. 1,000
4 Divided .. .. 1,350
PEDESTRIAN MODE
(Note: Level of semcc for the pedestrian mode in this table is based on roadway
geometries at 40 mph posted speed and traffIC conditions, not the number of
pedestrians using the facility.) (Multiply motorized vehicle volumes shown below
by number of directional roadway lanes to determine maximum service volumes.)
D E
720 780 LevelofSemcc
1,580 1,660 Sidewalk Coverage A B C D E
2,390 2,490 0-49".4 .. .. ..~ 330 810
3,130 3,250 SO-84% .. .. .. 520 990
85-100'.4 .. 120 590 >590 ...
NON~ATE ROADWAYS
Major City!County Roadways BUS MODE (Scheduled Fixed Route)
Level of Service (Buses per hour)
Lanes Divided A B C D E Level of Service
I Undivided .. .. 480 760 810 Sidewalk Coverage A B C 0 E
2 Divided .. .. 1,120 1,620 1,720 0--84% *. >5 ~ ~3 ~2
3 Divided .. .. 1,740 2,450 2,580 85-100'.4 >6 >4 ~3 ~2 ~I
Lanes Divided
I Undivided
2 Divided
Other Signalized Roadways
(signalized intersection analysis)
Level of Service
B C
.. 250
.. 580
D E
530 660
1,140 1,320
02122102
A
..
..
Source: Florida Department ofTnnspcxtation
Systems Planning OffICe
605 Suwannee Street, MS 19
Tallahassee, FL 32399-0450
http://wwwll.rnyflorida.comlplanninglsystems/smIlosldefaulthtm
ARTERlAIJNON~ A TE ROADWAY ADJUSTMENTS
DMDEDlUNDlVlDED
(alter corresponding volumes by the indicated percent)
Lanes Median Left Turns Lanes - Adjustment Factocs
I Divided Yes +5%
I Undivided No -200.4
Multi Undivided Yes -5%
Multi Undivided No -25%
ONE WAY FACILmES
lnaease corrcSllOnding volume 200.4
.TIoisloble .... ooc __ IllaDdacd """ ...... ...! OIIIy b __ '......lI'I'laciooI. The -.- -.leis "- wtoicIo this lobIe " 6:riwd Jboald be -" b -.. opecifac ,Ianaiac
lI'I'licationa. The 1Ib1e.... 6:riYiac __.......... ooc be -" b -ndor a< iIllcnectioe cIcsip,"""""" ..fia04 ~ uiot. Values.howft _1oourIy 4irecliouI...._'" IeYds I(
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I STUDY
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CLEARWATER BEACH RESORT
PARKING STUDY
Submitted to:
City of Clearwater
Prepared for:
CBR Development I, LLC
2201 Fourth Street North, Suite 200
St. Petersburg, FL 33704
Prepared by:
Florida Design Consultants, Inc.
3030 Starkey Boulevard
New Port Richey, FL 34655
(727)849-7588
Date:
September 23, 2004
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1.0 INTRODUCTION
CBR Development I, LLC is proposing the redevelopment of existing property, located on the
Clearwater Beach section of the City of Clearwater, into resort hotel, condominiums, and retail
land uses. The property is located south of Rockaway Street, west of Mandalay Avenue, north of
San Marco Street, and extends to the beach on the Gulf of Mexico, see Figure 1, Project Location
Map. The site includes the existing Clearwater Beach Hotel which has 157 rooms and a building
which previously housed a nightclub. The proposed land uses include 120 condominium
dwelling units, a 260 room resort hotel with a "beach club", and 11,000 square feet of retail. In
addition, 55 boat slips are proposed to be constructed on Mandalay Channel as part of the
project.
Clearwater Beach is a tourist recreation destination. The main attraction is the beach itself,
however, a number of tourist activities have been established including sailboat and powerboat
charters from the Clearwater Marina, Pier 60 restaurants and beach related retail stores along
Mandalay Avenue, etc. Numerous hotels and condominium units have been established on
Clearwater Beach for people to stay as long as desired. A trolley service, (the Jolley Trolley),
has been established to shuttle people between various points along Clearwater Beach in order to
minimize not only vehicle traffic but also to help reduce parking demands. This study has been
prepared to identify the expected parking demand for the site, and how the demand will be
handled, taking into account the existing infrastructure.
2.0 PARKING DEMAND
Each of the land uses proposed on site will generate its own demand for travel. Modes of access
to the Clearwater Beach Resort include non-motorized access (bicycle and pedestrian) bus
(public, chartered private buses, and the Jolley Trolley), taxis, vans, limousines, and
automobiles. Some of the modes of travel will require on-site parking to hold vehicles while
people use the amenities to be provided. The following paragraphs indicate the expected access
modes and needed parking.
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:ri DESCRIPTION,
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ROCKAWAY STREET
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a..EARWAlER
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SA YMONT STREET
SAN MARCO
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PROJECT LOCATION MAP
El FLORIDA DESIGN CONSULTANTS, INC.
11 ENGINEERS. ENVIRONMENTALISTS. SURVEYORS a PLANNERS
3030 Starkey Blvd. New Pari Richey FL 34655
Tel, (727) 649-7566 - Fax. (727) 646-3646
PROJECT No. EPN,
997-250 53
DATE. FIGURE.
8/31/04
DRAWN BY. 1
MKC
C> Cop)"ight 2004 Florida Design Consultants, Inc. Drawings and concepts may not be used or reproduced without written permission.
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2.1
2.2
2.3
CONDOMINIUMS
A total of 120 condominium units will be constructed with this project. It is expected that many
of these units will be sold to individuals who will use them as vacation homes. As such, the
expected average use of these condominiums will be less than full time. It would also be
expected that many of the owners would not be present in peak season events. While this would
result in lower utilization than provided by City Code, provision will be made to have 1.5
parking spaces for each dwelling unit, resulting in a need for 180 condominium parking spaces.
RETAIL
An 11,000 square foot specialty retail land use will be constructed on the site fronting on
Mandalay Avenue just north of San Marco Street. This will house "non-destination" beach
related retail shops that will draw their customers from pedestrians walking along Mandalay
Avenue and from the hotel and condominiums located nearby where parking has already been
provided. As such parking will not be provided for customers within the Clearwater Beach
Resort property. Parking spaces will be provided, however, for the employees of the retail stores
at a rate of one space for every 1,000 square feet of floor space. This results in a need for 11
parking spaces.
RESORT HOTEL
The amenities to be provided in the 260 room hotel include meeting rooms, ball rooms,
restaurants and lounges, a spa, a swimming pool and beach access, along with the hotel rooms.
A beach club will also be attached to the hotel, but is covered in the following section. People
will come to the hotel in a number of modes of travel. A number of hotel guests, including many
coming from the Tampa International Airport, will arrive in taxis and limousines, reducing the
number of parking spaces needed. For the automobiles arriving to the hotel, two options for
parking will be provided during normal operating periods. These include valet service and self
park options. During heavy use periods such as holidays, spring break, and projected high
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2.4
attendance events the hotel will shift to 100% valet parking. Valet service will be available in
the hotel 24 hours per day, 365 days a year.
A parking analysis was completed and approved by the City of Clearwater for the existing
Clearwater Beach Hotel located on the project site. That study which was completed by Florida
Design Consultants, Inc., dated June 2003 concluded that the main hotel building (137 rooms
north of Baymont) was adequately served by 98 on-site parking spaces. This is a ratio of 0.715
parking space per room. To be conservative, parking for the hotel should be provided at a rate of
0.8 parking spaces per room. The 260 room hotel will, therefore, need 208 parking spaces.
BEACH CLUB
A "beach club" will be included within the resort that will provide members with locker
facilities, access to a spa, fitness center, meeting rooms, restaurants, pool and the beach. This
facility will have a maximum of 300 members. It is expected that many of the memberships will
be taken by people living in or close to the Clearwater Beach Resort. The 120 condominium
owners on-site will be offered discounted membership dues. This will provide them full access
to the restaurants in the hotel as well as the beach club facilities and should prove to be popular.
It is estimated that, due to the incentives to be offered, 75% of the adjacent condominium
owners, or approximately 90 memberships, would be taken by these individuals. They would
already have parking facilities located on site and would, therefore, not need an additional space.
Belle Harbor is another JMC development on Clearwater Beach that has a total of 200
condominium units. This property does not have direct access to the beach. It is conservatively
estimated that 25% of the residents of Belle Harbor would join, since it would provide them with
beach facilities and other amenities not available at Belle Harbor. This represents an additional
50 memberships. Therefore, capping the membership at 300 leaves only 160 members that
might need to drive to the project. It is extremely unlikely that all 160 members would require
parking at the same time. A rate of 20% of these members using the club at anyone time may
also be high, but for this study the rate of 1 space per 5 memberships was used and is similar to
the ratio used at the Vinoy in St. Petersburg (see Attachment 1). Therefore, we have estimated
32 spaces for the Beach Club. Other factors that were considered in this analysis include the size
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2.5
2.6
3.0
of the beach club facilities (see architect's plans) and the input received from representatives of
Coral Hospitability Group, the future manager/operator of the resort. Their experience indicates
that one reason the parking needs of this type of club is low is due to the fact that the Beach Club
members, and hotel guests with cars, use parking spaces at different times. Many of the hotel
guests use their car during the day to visit other local attractions. It is during this period that the
Beach Club members use the spaces vacated by the resort guests. When the Beach Club
members leave towards the end of the day the resort guests use the space for overnight parking.
Although this obviously does not apply to all resort guests, it is a factor to be taken into account
regarding Beach Club parking.
BOAT SLIPS
As part of the project, 55 boat slips are proposed to be constructed on Mandalay Channel. These
slips will have access to the Intracoastal Waterway and the Gulf of Mexico. Eighteen of these
slips will be reserved for City of Clearwater use. The remaining 37 will be used by Clearwater
Beach Resort. Some of the slips will be rented to the on-site condominium owners and the
remainder will be available for hotel guests. The hotel will provide shuttle service to the boat
slips as needed. The boat slips will, therefore, not require any additional parking spaces.
SUMMARY
The number of parking spaces needed for normal operation at the Clearwater Beach Resort are
summarized in Table 1. As is indicated in this table, there is a need to provide 431 parking
spaces. A minimum of 431 parking spaces will be provided on site which should be adequate to
meet the average demand for the property.
PEAK DEMAND PERIODS
During periods of peak demand at the Clearwater Beach Resort, such as holidays and spring
break the normal parking arrangements may not satisfy the parking demand. Several measures
will be employed to meet this increased demand. An employee shuttle service will be instituted.
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Employees will be directed to park at a prearranged location on the mainland east of the
Intracoastal Waterway and will be shuttled into the hotel. Parking for the hotel will be switched
to 100% valet service. As indicated in Figure 2, 100% valet service will provide space to park
74 additional vehicles in the hotel designated portions of the parking lot and first parking level of
the adjacent condominium. This would result in a total of over 500 parking spaces on site.
4.0 CONCLUSION
With the measures proposed, the Clearwater Beach Resort will provide adequate parking for
normal operation and for peak periods. This can be accomplished without requiring use of City
of Clearwater provided on street or lot parking.
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K:\ClealWater Beach Hotel\Reports\ClealWater Beach Resort Parking Study. doc
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TABLE 1. PARKING SPACES FOR THE CLEARWATER BEACH RESORT
N umber of
Size Unit Rate/Spaces Per Unit Spaces
Needed
Condominium 120 D.ll. 1.5 D.ll. 180
Retail 11 ,000 S.F. 1.0 1,000 S.F. 11
Resort Hotel 260 Room 0.8 Room 208
Beach Club 300 Members 0.11 Member 32
Boat Slips 37 Slips 0 Slip 0
Space Required 431
Note: D.U. = Dwelling Unit
S.F. = Square Feet
K:\ClealWater Beach Hotel\Reports\ClealWater Beach Resort Parking Study.doc
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ATTACHMENT 1
Vinoy Parking Analysis
During the preparation of the parking study for Clearwater Beach Resort. Representatives of JMC
Communities contacted the operator of the Vinoy in St. Petersburg in order to obtain information
regarding the number of hotel rooms, parking spaces, club members, etc., a copy of the e-mail outlining
the results of this conversation is enclosed with this attachment. The following outlines the results of
that conversation and the analysis of the information.
Hotel Rooms = 360
Parking Spaces = 523
Club Memberships = 1100
Meeting Room = 40,000 Sq. Ft.
Although the size of the meeting room facilities at the Vinoy are significantly larger than the meeting
room facilities at the proposed Clearwater Beach Resort and, therefore, the parking ratio for the hotel
facility should be higher for the Vinoy than for the Clearwater Beach Resort, using the same ratio of 0.8
parking spaces per room used in this report indicates that 288 parking spaces are "assigned" to the
resort, leaving 235 spaces available for club members. This allows for parking spaces to be available for
21.8% of the club memberships (a ratio of I space per 4.6 memberships). This compares favorably to
the 20% (a ratio of I space per 5 memberships) used in the analysis for the Clearwater Beach Resort.
It should also be noted that the Vinoy has a significant number of tennis courts available to club
members, which is one of the major reasons Vinoy memberships are very popular in St. Petersburg.
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K:\ClealWater Beach Hotel\Reports\Parking Study Attachment I.doc
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DEVELOPER~S
QUALIFICATIONS
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JMC COMMUNITIES
Development Summary
JMC Communities is an award-winning Pinellas County-based developer committed to
environmental excellence and architectural beauty. The company was founded in 1972 by J.
Michael Cheezem, a St. Petersburg native and second-generation builder. JMC Communities
employs 135 local residents, and is a full service development company. We believe that by
controlling all aspects of the development process... from land planning... to construction... to
sales... to management, we can achieve a level of consistent quality and service which might not
otherwise be possible. Since 1972,JMC Communities has built over 3,700 quality condominium
homes on the West Coast of Florida with a total sales value of approximately $550 million. In
2000, JMC expanded to Florida's East Coast where it is currendy developing a 38-acre award
winning community in Volusia County's New Smyrna Beach.
JMC Communities has collected many awards throughout the years for superlative architectural
design, community beautification and environmental excellence, including the 2000 Aurora
Water-Wise Award for the Florencia, 1998 Builder of the Year award from the Contractors and
Builders Association, the 1997 Community Beautification award for the Bacopa Bqy community,
the 1994 Environmental Excellence Award of Merit for the Dolphin Cqy community, the 1994
Grand Prize/Design with Natives award from the Florida Native Plant Society for the
Dolphin Cqy community, the 1994 Builder's Choice Design & Planning award for Cat's Point
Pavilion, Dolphin Cqy, and the 1992 Environmental Excellence award for the Dolphin Cqy
community.
The following proudly profiles our communities:
. Belle Harbor... capturing all the character and charm of a Mediterranean seaside
village, Belle Harbor will offer modem conveniences and luxury appointments in a
unique, protected harbor setting. The village will consist of one tower with 96
homes and one tower with 66 homes, surrounded by 38 city & marina homes,
including 65 boat slips.
. Minorca... beautifully placed between the Atlantic Ocean and the Indian River in
the seaside town of New Smyrna Beach. The community, which broke ground in the
Spring of 2001, will consist of 312 condominium homes among seven 9-story
buildings.
. Mandalay Beach Club... two towers rising from the white sands of Clearwater
Beach overlooking the Gulf of Mexico. This 156 condominium residence community
with a resort flair was completed in October 2002.
" Florencia... located in the heart of downtown St. Petersburg was completed in
2001, and consists of 50 luxury condominium homes in a 20-story tower, all with
views overlooking Tampa Bay.
1) Hampton Inn & Suites... located across the street from Florencia in Downtown
St. Petersburg, and completed in 2002. This 9l-room Inn provides the community
with quality accommodations and friendly service.
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.. Meridian on Sand Key... located on the Gulf of Mexico in Clearwater consisting
of 106 condominium homes with a total sales value of $56,000,000.
.. The Grande on Sand Key... located on the Gulf of Mexico in Clearwater consists
of234 homes in two towers, with a sellout of $86,000,000.
.. Bacopa Bay... located on Boca Ciega Bay in St. Petersburg consists of 188
condominium homes with a total sales value of $49,000,000.
.. Dolphin Cay... in St. Petersburg blends 315 condominium homes with 47 single-
family home sites, and a total sales value of over $72,000,000.
.. HarbourSide... began construction in 1986, consisting of 722 condominium
homes in South Pasadena, with a total sales value of $85,800,000.
.. Pinebrook... is a 687 home community built around an 18-hole golf course in
Bradenton with a total sales value of $54,200,000 completed in 1995.
.. Pasadena Cove... consisting of 256 waterfront condominium homes broke ground
in 1982 in South Pasadena, with a total sales value of $19,000,000.
.. Wood Park at DeSoto Square... located in Bradenton is a 390 home community
that began in 1981 with a total sales value of $21,800,000.
.. Winston Park Northeast... consisting of216 condominium homes with a total
sales value of $12,000,000 is located in St. Petersburg, and was completed in 1980.
09/29/04
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