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PELICAN WALK PARKING GARAGE DEVELOPMENT AGREEMENT J I e ~ This Agreement for Grant (the "Agreement") is made as of this ~ day of August 2003, by and between THE CITY OF CLEARWATER, FLORIDA, a municipal corporation and political subdivision of the State of Florida (the "City"), and B. J. E., Inc. ("Pelican Walk"), WITNESSETH: WHEREAS, the City of Clearwater has adopted a community revitalization plan entitled Beach by Design; WHEREAS, Beach by Design contemplates the provision of additional off-street parking on Clearwater Beach in support of resort development, beach patronage and the revitalization of North Mandalay; WHEREAS, the new high span bridge between the mainland and Clearwater Beach is scheduled to open on or before March 31, 2004; WHEREAS, the new high span bridge will improve access to the beach and increase the need for off-street parking on Clearwater Beach; WHEREAS, on days of peak beach patronage, there IS a senous shortfall III the availability of public parking on Clearwater Beach; WHEREAS, the City of Clearwater has exhaustively analyzed the opportunities for providing additional parking on Clearwater Beach; WHEREAS Pelican Walk is the owner of certain real property on Clearwater Beach popularly known as the Pelican Walk Shopping Center; WHEREAS, one of the sites which the City has identified as a potential site for a parking garage is the existing surface parking lot which is a part of the Pelican Walk Shopping Center ("Parking Garage Site"); WHEREAS, the City of Clearwater has conducted various studies of the feasibility of constructing additional off-street parking and evaluated more than twelve (12) different sites; WHEREAS, the seasonality of parking demand on Clearwater Beach compromises the financial feasibility of providing additional parking because potential revenues are substantially reduced during non-peak days; WHEREAS, Pelican Walk has offered to work with the City of Clearwater to facilitate the provision of additional off-street parking on Clearwater Beach; Pelican Walk Parking Garage Development Agreement 1 of 29 July 8, 2003 ()()- "'-';' /;.~// /"c:. 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'/ (I) I I WHEREAS, the City Commission of the City of Clearwater determined that the acquisition of the Parking Garage Site and development and operation of a public parking garage on the Site could not be justified on the basis of existing and projected parking revenues; WHEREAS, the City Commission determined that in the absence of additional private development which generated additional off-street parking demand for non-peak days, the construction and operation of a public parking garage involved a measure of risk the Commission was unwilling to accept; WHEREAS, the City and Pelican Walk have worked diligently to identify a financially feasible approach to the construction and operation of a new parking garage on the Parking Garage Site; WHEREAS, Pelican Walk offered to convey the Parking Garage Site to the City so long as the amount of parking currently existing on the Parking Garage Site was available to Pelican Walk for its tenants and customers; WHEREAS, the City of Clearwater employed professionals experienced in the financing of parking garages to evaluate the economic feasibility of various ~ptions for a new parking garage on the Parking Garage Site; WHEREAS, the economic feasibility analysis prepared for the City of Clearwater revealed that each of the options for a publicly financed and operated garage involved a likelihood that revenues would be insufficient to cover debt service and operating costs and that additional parking demand and revenues depended on the pace of revitalization and redevelopment on Clearwater Beach and other matters beyond the City's control; WHEREAS, Pelican Walk has proposed, as an alternative to a publicly owned and operated parking garage, that Pelican Walk construct a garage and make parking in the garage available to the public, including the tenants and invitees of the Pelican Walk Shopping Center, on an equal, first come, first served basis for the useful life of the garage; WHEREAS, Pelican Walk has proposed that the new parking garage would be constructed and operated according to the specifications of the City of Clearwater; WHEREAS, Pelican Walk proposed that the City of Clearwater make a grant to Pelican Walk in the amount of one million and four hundred thousand dollars ($1,400,000.00) in consideration for Pelican Walk's construction and operation of an off-street parking garage open to the public, including the tenants and invitees of the Pelican Walk Shopping Center, on an equal, first come, first served basis; WHEREAS, the parking garage proposed by Pelican Walk is not economically viable without a grant in aid in an amount of at least one million and four hundred thousand ($1,400,000.00); Pelican Walk Parking Garage Development Agreement 2 of 29 July 8, 2003 "\ I I WHEREAS, the Pelican Walk proposal gives the City of Clearwater additional public parking to the public without additional uncertain financial risk; WHEREAS, the proposed grant of one million and four hundred thousand dollars ($1,400,000.00) is significantly less than the net cost of land acquisition, construction, financing and operation of a public parking garage; WHEREAS, the City Commission of the City of Clearwater has determined that the construction of a new parking garage on the Parking Garage Site available to the public on an equal, first come, first served basis will serve the best interests ofthe citizens of the City; WHEREAS, the provision of additional parking available to the public on an equal, first come, first serve basis is a valid public purpose; WHEREAS, the City understands that Pelican Walk is willing to undertake the financial risk of designing, constructing and operating the proposed Parking Garage and that Pelican Walk is relying upon the strict enforcement of existing municipal regulations governing on-street and off-street parking as it undertakes the financial risk of the proposed Parking Garage; WHEREAS, the City understands that the economic feasibility of the proposed Parking Garage would be adversely affected if the City were to construct or cause to be constructed or to otherwise provide financial support for additional off-street parking spaces within the immediate vicinity of the Parking Garage Site; -HI. WHEREAS, at a duly called public meeting on the ~ day of July, 2003, the City Commission approved this Agreement, and authorized and directed its execution by the appropriate officials of the City; and WHEREAS, the Board of Directors of B. J. E., Inc. has approved this Agreement and has authorized certain individuals 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 Def"mitions. The terms defined in this Article 1 shall have the following meanings except as herein otherwise expressly provided: 1. "Agreement" means this Grant III Aid 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 Commission Pelican Walk Parking Garage Development Agreement 3 of 29 July 8, 2003 J I pursuant to the provisions of the Pinellas County Planning Council's Rules for the designation of a Special Area Plan/Community Redevelopment District. 3. "City" means the City of Clearwater, Florida, a Florida municipal corporation. 4. "City Commission" means the governing body of the City. 5. "City's Representative" means that person designated by the City to represent the City during the design and construction of the proposed Parking Garage. 6. "Commencement Date" means the date on which Pelican Walk commences or causes a Contractor to commence construction of the Pelican Walk Parking Garage. 7. "Commence construction" means the start of meaningful physical development of a material part of the Parking Garage building. 8. "Construction Completion Date" means the date a final certificate of occupancy is issued by the City for the Pelican Walk Parking Garage. 9. "Effective Date" means the date of approval and execution of this Agreement as provided in Section 13.14. 10. "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. 11. "Parking Garage Site" means the land on which the existing Pelican Walk surface parking lot and associated storm water management facilities are located which is located immediately to the east of the existing Pelican Walk Shopping Center and fronts on Poinsettia Avenue, as more particularly described in Exhibit ~ 12. "Pelican Walk Parking Garage" means a parking garage to be constructed on the Parking Garage Site" containing not less than three hundred (300) off-street parking spaces. 13. "Plans and Specifications" means the schematic, preliminary and final construction plans for the Pelican Walk Parking Garage. 14. "Unavoidable Delay" means a delay as described in Article 15 hereof. 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 Pelican Walk Parking Garage Development Agreement 4 of 29 July 8, 2003 I I singular number, and the word "person" shall include corporations and associations, 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 (2002), as amended from time to time. ARTICLE 2. PURPOSE AND PROPOSED PARKING GARAGE. 2.01 Purpose of Agreement. The purpose of this Agreement is to further the implementation of Beach by Design by providing for additional public parking on Clearwater Beach to enhance the quality of life, increase employment and improve the aesthetic and useful enjoyment of Clearwater Beach all in accordance with and in furtherance of the Comprehensive Plan and as authorized by and in accordance with the provisions of Florida law. 2.02 Proposed Parking Garage. a. Description. Pelican Walk proposes to develop a parking garage containing at least three hundred (300) off street parking spaces on the Parking Garage Site. The Parking Garage will be designed and constructed in a manner which will allow the subsequent addition of at least two (2) additional floors of parking. All of the parking spaces in the Parking Garage will be open to the public, including the invitees of the Pelican Walk Shopping Center, on an equal, first come, first served basis. b. Public Benefits and Public Interest. The proposed Parking Garage on the Parking Garage Site, including the design, construction, completion and operation of the Parking Garage and each part thereof, is hereby found by the parties hereto: (1) to be consistent with and in furtherance of the objectives of Beach by Design and the Comprehensive Plan, (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, and (5) to further the public interest and purpose of providing additional parking open to the public on an equal, first come, first serve basis and eradicating conditions of deterioration, dilapidation, obsolescence and blight on Clearwater Beach. 2.03 Ownership of Parking Garage Site. Pelican Walk is the owner of the Parking Garage Site. 2.04 Cooperation of the Parties. The City and Pelican Walk recognize that the successful development and operation of the Parking Garage is dependent upon continued Pelican Walk Parking Garage Development Agreement 5 of 29 July 8, 2003 I I cooperation ofthe City and Pelican Walk, 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 Parking Garage is designed, constructed, completed and operated as provided herein. ARTICLE 3. REGULATORY PROCESS. 3.01 Land Development Regulations. a. Land Use Designation. The Parking Garage Site is located within the Tourist District as provided in the City's Land Development Regulations. b. Amendments to Land Development Regulations. The City covenants and agrees to cooperate with Pelican Walk, to the extent permitted by law, in regard to any text or map amendment to the City's Land Development Regulations or approval under the City's Land Development Regulations which may be necessary in order for Pelican Walk to develop the Parking Garage as described in Section 2.02(a). 3.02 Development Approvals and Permits. a. Applications for Develooment Approval. Pelican Walk shall prepare and submit to the appropriate governmental authorities, including the City, applications for all necessary Permits for the Parking Garage, 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, except as otherwise provided in this Agreement. b. City Coooeration and Assistance. The City shall cooperate with Pelican Walk with regard to all necessary approvals and or permits required for the construction, completion and opening for business of the Parking Garage which may be required from an agency of government other than the City. If requested by Pelican Walk and authorized by law, the City will join in any application for any permit or approval, or, alternatively, recommend to and urge any governmental authority to which application for any permits has been made that such permit or approval to issue or approve the requested permit or approval. c. 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 Pelican Walk Parking Garage Development Agreement 6 of 29 July 8, 2003 I I 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 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 processes and in accordance with applicable provisions of law. 3.03 Not a Development Order or Permit. The City and Pelican Walk hereby acknowledge, agree and represent that this Agreement is not intended to be and should not be construed or deemed to be a "development order" or development permit" within the meaning of those terms in Section 163.3164, Florida Statutes. ARTICLE 4. PLANS AND SPECIFICATIONS. 4.01 Plans and Specifications. a. Responsibility for Preparation of Plans and Specifications. Pelican Walk shall be responsible for preparing the site plan and schematic, preliminary, and final construction plans for the proposed Parking Garage. During the design process, Pelican Walk agrees that the City's Representative shall have access to and a right to review and approve all phases of design and construction processes. b. Character and Quality. The City and Pelican Walk agree that the proposed Parking Garage shall be designed, constructed, maintained and operated in a manner consistent with other first class or high quality parking garages in the Tampa Bay region such as Centro Ybor or Channelside garages. The City and Pelican Walk further agree that the Parking Garage will be designed and constructed in a manner which will ensure that the Parking Garage has a positive impact on the appearance and community character of Clearwater Beach. c. Beach by Design. The City and Pelican Walk agree that the Parking Garage will be designed in accordance with the requirements of Beach by Design. d. Useful Life. The City and Pelican Walk agree that the Parking Garage will be designed and constructed so as to have a useful life of not less than forty (40) years. e. Review and Approval of Plans and Specifications by City. Pelican Walk shall submit schematic, preliminary and final plans to the City's Representative for its review and approval as a party to this Agreement. The City's Representative shall complete its review of any plans which are submitted under this subsection within twenty (20) days or the particular plans which have been submitted shall be Pelican Walk Parking Garage Development Agreement 7 of 29 July 8, 2003 I I deemed approved as submitted. Approval by the City's Representative shall be separate and apart and shall not limit in any way the City's regulatory and permitting powers. f. Use of Oualified Professionals. Pelican Walk shall retain qualified professionals to prepare the Plans and Specifications and shall cause such professionals to prepare the Plans and Specifications. ARTICLE 5. PELICAN WALK OBLIGATIONS. 5.01 Parking Garage Site Work. Pelican Walk shall be responsible for all site investigation, 5.02 Construction Budget for Parking Garage. Pelican Walk shall provide the City with a sworn statement of a general contractor licensed in the State of Florida as to the construction budget, including all costs and contingencies. In the event that the construction budget is modified upwards or downwards by more than ten percent (10%), Pelican Walk shall submit a sworn statement of a general contractor as to the modified budget. 5.03 Construction of the Project. a. Commencement. Pelican Walk shall commence construction of the Parking Garage in accordance with the Plans and Specifications for the Parking Garage within twelve (12) months after the Effective Date and shall thereafter diligently pursue construction to completion within thirty-six (36) months of the Effective Date. b. Payment of Contractors and Supj>liers. Pelican Walk agrees to promptly pay, or arrange to be paid, all moneys due and legally owing to all persons or organizations doing any work or furnishing any materials, fuel, machinery or supplies for the design and construction of the Parking Garage. c. Maintenance of Construction Site. During the construction of the Parking Garage, Pelican Walk shall, at its own expense, keep the Parking Garage Site in good and clean order and condition. d. Maintenance of Parking for Pelican Walk Shopping Center. Prior to the commencement of construction, Pelican Walk shall prepare a "Maintenance of Off-Street Parking Plan" which plan shall identify the off-street parking facilities which will be used to provide adequate and reasonable off-street parking to the employees and invitees of the tenants of the Pelican Walk Shopping Center. For the purposes of this subsection, "off-street parking facilities" means parking spaces available to the general public or available to Pelican Walk by private agreement and valet services. Pelican Walk Parking Garage Development Agreement 8 of 29 July 8, 2003 I I 5.04 Construction Completion Security. A condition precedent to the payment of any public monies in accordance with the terms and conditions of this Agreement, Pelican Walk shall provide the City with good and sufficient security to guarantee the completion of the Parking Garage. The security shall be in an amount equal to one hundred and twenty-five percent (125%) the estimated cost of construction based on approved construction plans. The form of the surety shall be bond issued by a business organization subject to the regulatory authority of the State of Florida, an unconditional letter of credit issued by a Federally insured financial institution or other form of security acceptable to the City Attorney. 5.05 Operation of Parking Garage. Pelican Walk agrees and covenants that it shall operate the Parking Garage on the following terms and conditions: a. Open to the Public. The Parking Garage shall be available to the general public, including the tenants and partners of the Pelican Walk Shopping Center, on an equal, first come, first served basis. For the purposes of this Agreement, equal, first come, first serve means that each and every parking space will available for use by the public at all times when the Parking Garage is open, and that at least three hundred parking spaces shall be unrestricted (no reserved parking) within the Parking Garage for a period of not less than thirty (30) years after the issuance of a final certificate of occupancy for the Parking Garage. b. Hours of Operation. The Parking Garage shall be open for public parking between the hours of 10:00 a.m. and 9:00 p.m. daily except Fridays, Saturdays, and legal holidays recognized by the City of Clearwater, on which days the garage shall remain open until 10:00 p.m. c. Parking Rates. Parking rates charged the general public for the use of parking spaces in the Parking Garage shall be consistent with the parking rates charged, from time to time, for parking spaces in parking garages located in other resort locations in Florida; provided however, that parking rates for use of parking spaces in the Parking Garage shall not exceed one hundred and fifty percent (150%) of the average parking rate charged by the City for off-street parking on Clearwater Beach or three dollars and seventy-five cents ($3.75) per hour, whichever is greater. 5.06 Parking Easement. Pelican Walk shall grant a parking easement in the Parking Garage Site and the Parking Garage on the terms and conditions set out in this Agreement including the term of thirty (30) years in section 13.13 of this Agreement which shall specifically apply to said parking easement. The required easement shall be substantially in the form of Exhibit B to be attached to this Agreement and shall be delivered to the City prior to payment of any part of the grant-in-aid provided for in the Agreement. Pelican Walk understands and agrees that such easement will be recorded by the City. Pelican Walk Parking Garage Development Agreement 9 of 29 July 8, 2003 I I ARTICLE 6. CITY OBLIGATIONS. 6.01 Financial Grant in Aid. The City agrees to make a grant in aid to Pelican Walk in support of the design and construction of the Parking Garage in the amount of one' million and four hundred thousand dollars ($1,400,000.00). The grant in aid will be paid to Pelican Walk as provided for in subsection 6.07 of this Agreement. As condition precedent to any payments of the grant aid, Pelican Walk shall provide the City with a sworn statement specifically describing the costs incurred for which reimbursement is eligible together with a sworn statement of the percentage (%) completed for the Parking Garage. 6.02 Payment of the Grant in Aid. The City agrees to pay the grant in aid to Pelican Walk, in accordance with the following: a. Upon completion of the construction plans for the Parking Garage and the issuance of a building permit by the City, the City shall reimburse Pelican Walk for the actual cost of preparing the schematic, preliminary, and final construction plans in an amount not to exceed fifteen percent (15%) of the total project budget. b. Upon completion of thirty three percent (33%) of the construction of the Parking Garage, the City shall pay Pelican Walk one third (1I3rd) of the remaining unpaid grant in aid (grant in aid less reimbursement payment for the cost of preparing the schematic, preliminary, and final construction plans). c. Upon completion of sixty-six percent (66%) of the construction of the Parking Garage, the City shall pay Pelican Walk for one third (1I3rd) of the remaining unpaid grant in aid (grant in aid less reimbursement payment for the cost of preparing the schematic, preliminary, and final construction plans). d. Upon issuance of a final certificate of occupancy, the City shall pay Pelican Walk the balance of the remaining unpaid grant in aid (grant in aid less reimbursement payment for the cost of preparing the schematic, preliminary, and final construction plans). 6.03 Enforcement of Municipal Parking Regulations. The City agrees to take all reasonable and necessary steps to enforce each and every existing municipal regulation within one thousand (1,000) feet of the closest part of the Parking Garage Site. 6.04 Construction of Additional Off-Street Parking Spaces in the Immediate Vicinity. The City understands and agrees that as a party to this Agreement, Pelican Walk assumes certain financial risks which may be adversely affected by the construction of additional off-street parking spaces in the immediate vicinity of the Parking Garage Site. In consideration thereof, the City agrees that in the event the City determines, within five (5) Pelican Walk Parking Garage Development Agreement 10 of 29 July 8, 2003 I I years after the issuance of a final certificate of occupancy for the Parking Garage, that additional off-street City owned or financially supported parking spaces open to the public located within one thousand (1,000) feet of any portion of the Parking Garage Site are necessary and appropriate, the City agrees the City will provide Pelican Walk with written notice of its determination, and that in that event: a. Pelican Walk shall have a first right to construct an additional two hundred (200) off-street parking spaces to meet the need for additional off-street parking spaces which the City has determined are necessary and appropriate, provided that such additional off-street parking spaces are open to the public on an equal, first come, first served basis subject to the terms of this Agreement as provided in section 13.13. b. In the event that Pelican Walk opts to exercise its first right to construct at least two hundred (200) additional off-street parking spaces, Pelican Walk shall give the City written notice of its intent within thirty (30) days after receipt of the City's written notice of the City's determination that additional spaces are necessary and appropriate. c. In the event that Pelican Walk gives the City notice of its intent to construct at least two hundred (200) additional off-street parking spaces, Pelican Walk shall commence construction of the additional spaces within six (6) months of the date of Pelican Walk's written notice. d. In the event that Pelican Walk gives the City notice of its intent to construct at least two hundred (200) additional off-street parking spaces, Pelican Walk shall be solely responsible for the cost of construction of the additional parking spaces. e. In the event that Pelican Walk exercises its first right to construct at least two hundred (200) additional off-street parking spaces, the City agrees that the City will not use or cause to be used, public funds for the construction of any additional off-street parking spaces within one thousand (1,000) feet of any portion of the Parking Garage Site for a period of five (5) years from the date of Certificate of Occupancy of the additional spaces or until Pelican Walk shall have achieved a Stabilized Occupancy for the total number of off-street parking spaces in the expanded Parking Garage, so long as the additional parking spaces are open to the public on an equal first come, first served basis. For the purposes of this subsection, Stabilized Occupancy shall mean that sixty-five percent (65%) of the total number of parking spaces in the Parking Garage (after the construction of the additional parking spaces) are occupied on an average of four (4) hours of per day, three hundred and sixty five (365) days per year: OSTAB Stabilized Occupancy K Number of Parking Spaces Pelican Walk Parking Garage Development Agreement 11 of 29 July 8, 2003 I I OAVG = Average Percent of Parking Spaces Occupied (65%) HAVG Average Number of Hours Occupied per Day (4) OSTAB =(OAVG)(HAVG)(K)(DA YS) OSTAB =(.65)(4)(K)(365) f. Pelican Walk will conduct and submit to the City sworn affidavits of annual audits of occupancy including all spaces occupied whether by pay parking or by validation based on an initial date of Certificate of Occupancy of either the first or second phase of construction until stabilized occupancy is achieved or the applicable timeframe has expired. g. In the event that Pelican Walk opts not to exercise its first right to construct at least two hundred (200) additional off-street parking spaces, the City shall be free to construct additional off-street parking spaces within one thousand (1,000) feet of any portion of the Parking Garage Site without regard to the level of occupancy achieved by Pelican Walk. h. Notwithstanding any other provision of this Agreement, including the provisions of this subsection 6.04, the City and Pelican Walk understand and agree that the City shall retain the right to construct or fund additional off-street parking spaces within one thousand (1,000) feet of any portion of the Parking Garage Site, if the City determines that such off-street parking is a necessary element of a proposed Destination Resort development undertaken in accordance with the provisions of Beach by Design. ARTICLE 7. INDEMNIFICATION OF THE CITY BY PELICAN WALK. 7.01 Indemnification. a. Pelican Walk 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 Pelican Walk, 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, or which are alleged to have arisen out of, in connection with, or by reason of, the performance of such ServIces. Pelican Walk Parking Garage Development Agreement 12 of 29 July 8, 2003 I I b. Pelican Walk 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 Pelican Walk of any duties, responsibilities, obligations or covenants contained in this Agreement. c. Pelican Walk's indemnity obligations under subsections (a) and (b) of this Article shall end and be of no future force and effect after the Construction Completion Date. ARTICLE 8. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PELICAN WALK. 8.01 Representations and Warranties. Pelican Walk represents and warrants to the City that each of the following statements is currently true and accurate and agrees that the City may rely upon each of the following statements: a. Pelican Walk is a Florida corporation 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. b. This Agreement has been duly authorized by all necessary action on the part of, and has been or will be duly executed and delivered by, Pelican Walk, 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 Pelican Walk, (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 Pelican Walk under any indenture, mortgage, deed of trust, bank loan or credit agreement, Pelican Walk's Articles of Incorporation, or, any other agreement or instrument to which Pelican Walk is a party or by which Pelican Walk may be bound. c. This Agreement and any document contemplated or required by this Agreement to which Pelican Walk is or will be a party constitutes, or when entered into will constitute, a legal, valid and binding obligation of Pelican Walk enforceable Pelican Walk Parking Garage Development Agreement 13 of 29 July 8, 2003 I I against Pelican Walk 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. d. There are no pending or, to the knowledge of Pelican Walk, threatened actions or proceedings before any court or administrative agency against Pelican Walk, or against any controlling shareholder, officer, employee or agent of Pelican Walk, which could affect 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 duties and obligations contemplated in this Agreement or the financial condition of Pelican Walk. e. Pelican Walk has filed or caused to be filed all federal, state, local and foreign tax returns, if any, which were required to be filed by Pelican Walk, 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 Pelican Walk. f. The principal place of business and principal executive offices of Pelican Walk is Clearwater, Florida, and Pelican Walk agrees to maintain records concerning the Parking Garage (such as construction contracts, financing documents and corporate documents) and all contracts, licenses and similar rights relating thereto at an office in Pinellas County. g. Pelican Walk has the financial capability to carry out its obligations and responsibilities in connection with the development of the Parking Garage as contemplated by this Agreement. h. Pelican Walk 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 Parking Garage. 8.02 Covenants. Pelican Walk covenants with the City that until the Construction Completion Date: a. Pelican Walk shall timely perform or cause to be performed all of the obligations contained herein which are the responsibility of Pelican Walk to perform. b. During each year that this Agreement and the obligations of Pelican Walk under this Agreement shall be in effect, Pelican Walk shall cause to be executed and to continue to be in effect those instruments, documents, certificates, permits,r Pelican Walk Parking Garage Development Agreement 14 of 29 July 8, 2003 I I licenses and approvals and shall cause to occur those events contemplated by this Agreement that are applicable to, and that are the responsibility of, Pelican Walk. c. Pelican Walk shall assist and cooperate with the City to accomplish the development, operation, and maintenance of the Parking Garage by Pelican Walk in accordance with the Plan 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. d. Subsequent to the Effective Date, Pelican Walk shall maintain its financial capability to develop, construct, complete, operate and maintain the Parking Garage 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, Pelican Walk's financial capability to successfully and completely construct, complete, operate and maintain the Parking Garage as contemplated hereby. e. Pelican Walk 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. f. Pelican Walk 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 Pelican Walk retains a controlling interest in the consolidated or merged corporation, and will promptly notify the City of any changes to the existence or form of the corporation or any change in the controlling shareholders, officers or directors of Pelican Walk. g. Pelican Walk 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 Pelican Walk unable to continue to observe and perform the covenants, agreements, and conditions hereof and the performance of all other obligations required by this Agreement. h. Pelican Walk shall design, construct and complete the Parking Garage such that it is substantially complete as provided in this Agreement no later than the Project Completion Date. Pelican Walk Parking Garage Development Agreement 15 of 29 July 8, 2003 I I 1. In the event that Pelican Walk shall convey any interest in the Parking Garage Site, Pelican Walk shall obtain a written affidavit of acknowledgment of the obligations of the Agreement and promise a copy ofthe affidavit to the City. ARTICLE 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CITY. 9.01 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: a. 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. b. This Agreement and 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. c. This Agreement and, to the extent such documents presently exist in a form accepted by the City and Pelican Walk, 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. Pelican Walk Parking Garage Development Agreement 16 of 29 July 8, 2003 J I 9.02 Covenants. The City covenants with Pelican Walk: a. 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. b. 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. c. The City shall assist and cooperate with Pelican Walk to accomplish the development of the Parking Garage 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. ARTICLE 10 DEFAULT. 10.01 Failure of Pelican Walk to Commence Construction of the Parking Garage. In the event that Pelican Walk shall fail to commence construction ofthe Parking Garage within twelve (12) months after the Effective Date of this Agreement, the City shall have the right to give Pelican Walk written notice that this Agreement has terminated and shall be of no further force and effect. In the event that the City shall have reimbursed Pelican Walk for the preparation of schematic, preliminary and final construction plans for the proposed Parking Garage, at the City's option: 1) Pelican Walk shall repay the City all Money paid to Pelican Walk; or 2) all designs, drawings and other documents and the intellectual property they constitute shall become the property of the City. 10.02 Failure of Pelican Walk to Complete Construction ofthe Parking Garage. a. In the event that Pelican Walk shall commence construction of the Parking Garage and thereafter cease work on the construction of the Parking Garage prior to issuance of a final certificate of occupancy, such circumstances shall constitute an event of default; and the City, may give Pelican Walk written notice of the City's intent to declare Pelican Walk to be in default and the City's intent to cure the default. Pelican Walk Parking Garage Development Agreement 17 of 29 July 8, 2003 ) I b. In the event the City gives Pelican Walk written notice of default and intent to cure, Pelican Walk shall have sixty (60) days in which to cure the default and re- commence construction of the Parking Garage. In the event that Pelican Walk shall fail to cure the default by re-commencing construction, the City shall have the right to draw upon the construction completion security and to cause the construction of the Parking Garage to be completed. c. In addition to the right of cure established in subsection b of this section, in the event that the construction completion security is insufficient to complete construction of the parking garage, the City shall have the right to cause the garage to be completed and to place a lien on the Parking Garage Site equal to the additional cost of completing construction. In such event, the City shall be entitled to operate the parking garage for the benefit of Pelican Walk and the City until such time as the additional cost to complete is repaid. 10.03 Failure of Pelican Walk to Operate the Parking Garage in Accordance with the Requirements of the Agreement. In the event that Pelican Walk should fail to comply with any requirement of this Agreement with regard to the operation and maintenance of the Parking Garage, then the City shall have a right of specific performances and shall be entitled to actual damages. In the event of such litigation, the prevailing party shall be entitled to recover its costs and attorneys' fees from the other party. 10.04 Failure of City to Enforce Municipal Parking Regulations. In the event that the City should fail to enforce municipal parking regulations as provided for in section 6.03 of this Agreement, Pelican Walk may, after giving the City written notice of such failure and the City thereafter fails to cure such failure within fifteen (15) days of receipt of such notice, seek judicial enforcement of its rights under section 6.03 of this Agreement. In the event that the Pelican Walk shall prevail in a judicial proceeding to enforce the provisions of section 6.03 of this Agreement, the City shall reimburse Pelican Walk for its attorneys' fees and cost incurring in enforcing Pelican Walk's rights pursuant to this Agreement. 10.05 Obligations, Rights and Remedies Cumulative. Unless specifically stated herein to the contrary, the specified rights and remedies to which the City is 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 may lawfully be entitled and are not specifically prohibited by this Agreement. 10.06 Non-Action on Failure to Observe Provisions of this Agreement. The failure of the City or Pelican Walk 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 Pelican Walk may Pelican Walk Parking Garage Development Agreement 18 of 29 July 8, 2003 I I have, and shall not be deemed a waiver of a subsequent default or nonperformance of such term, covenant, condition or provision. ARTICLE 11 UNAVOIDABLE DELAY. 11.01 Unavoidable Delay. a. 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 11.01. b. "Unavoidable Delay" means any of the following events or conditions not currently existing at the effective date of this Agreement or any combination thereof: acts of God, 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). c. 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. d. 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. Pelican Walk Parking Garage Development Agreement 19 of 29 July 8, 2003 I I ARTICLE 12 FIRE OR OTHER CASUALTY; CONDEMNATION. 12.01 Loss or Damage to Parking Garage. a. For a period of thirty (30) years after the issuance of a final certificate of occupancy by the City for the Parking Garage, and without regard to the extent or availability of any insurance proceeds, Pelican Walk covenants and agrees to diligently commence and complete the reconstruction or repair of any loss or damage caused by fire or other casualty to each and every part of the Parking Garage 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. b. The City shall review the Plans and Specifications for such reconstruction or repairs as soon as possible after filing thereof by Pelican Walk. 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 Parking Garage, 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. c. If Pelican Walk fails to repair or restore any significantly damaged portion of the Project, the City may, at its election and after thirty (30) days notice to Pelican Walk, bring an action in a court of competent jurisdiction to compel Pelican Walk to repair or restore such damage. In the event of such litigation, the prevailing party shall be entitled to recover its costs and attorneys' fees from the other party. 12.02 Project Insurance Proceeds. a. Whenever the Parking Garage or any part thereof, shall have been damaged or destroyed, Pelican Walk 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. b. Pelican Walk agrees that all proceeds of property or casualty insurance received by Pelican Walk 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 Parking Garage to the extent necessary to repair or reconstruct the Parking Garage. Pelican Walk Parking Garage Development Agreement 20 of 29 July 8, 2003 J I 12.03 Notice of Loss or Damage to Parking Garage. Pelican Walk shall promptly give the City written notice of any significant damage or destruction to the Parking Garage stating the date on which such damage or destruction occurred, the expectations of Parking Garage as to the effect of such damage or destruction on the use of the Parking Garage and the proposed schedule, if any, for repair or reconstruction of the Parking Garage. ARTICLE 13 MISCELLANEOUS 13.01 Assignments by Pelican Walk. a. Prior to the Commencement Date, Pelican Walk may sell, convey, assign or otherwise dispose of any or all of its right, title, interest and obligations in and to the Parking Garage Site and the Parking Garage, or any part thereof, only with the prior written consent of the City, such consent shall not be unreasonably withheld provided that such party (hereinafter referred to as the "assignee"), to the extent of the sale, conveyance, assignment or other disposition by Pelican Walk the Developer to the assignee, shall be bound by the terms of this Agreement the same extent as Pelican Walk. b. If the assignee of Pelican Walk's right, title, interest and obligations in and to the Parking Garage assumes all of Pelican Walk's obligations hereunder for the Parking Garage, then Pelican Walk 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 Parking Garage, or any part thereof, by Pelican Walk to any corporation, limited partnership, general partnership, or joint venture, in which Pelican Walk is the or a general partner or has either the controlling interest or through a joint venture or other arrangement shares equal management rights with a financial institution 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 13.01, provided, however, that notice of such assignment shall be given by Pelican Walk 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 Pelican Walk in the absence of such assignment. 13.02 Successors and Assigns. The terms and obligations herein contained shall bind and inure to the benefit of the City and Pelican Walk and its successors and assigns, including any lessee of the Parking Garage. In the event that Pelican Walk enters into a lease of the Parking Garage or sells the Parking Garage and real property, the obligations of this Agreement shall be enforceable against Pelican Walk and its lessee or successor until the Pelican Walk Parking Garage Development Agreement 21 of 29 July 8, 2003 ) I Construction Completion Date, at which time Pelican Walk shall be released from any further obligations during the term of such lease, so long as Pelican Walk has no obligations or rights to operate the Parking Garage. 13.03. Notices. a. 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 Pelican Walk: Nickolas C. Ekonomides Nickolas C. Ekonomides, P.A. 791 Bayway Boulevard Clearwater, FL 33767 To the City: Pamela Akin, City Attorney City of Clearwater P.O. Box 4748 Clearwater, FL 33758-4748 b. Notices given by courier service or by hand delivery shall be effective upon delivery and notices given by mail shall be effective on the third (3rd) business day after mailing. 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 13.03. 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. 13.04. 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 Pelican Walk, and the Agreement, including, without limitation, the Exhibits, shall not be deemed to have been prepared by the City or Pelican Walk, but by all equally. 13.05. Venue; Submission to Jurisdiction. a. 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. Pelican Walk Parking Garage Development Agreement 22 of 29 July 8, 2003 ) I b. 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. c. If at any time during the term of this Agreement, Pelican Walk is not a resident of the State of Florida or has no office, employee, 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, Pelican Walk 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 Pelican Walk at the address for notices as provided in 13.03. 13.06. Complete Agreement; Amendments. a. 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. b. Any provision of this Agreement shall be read and applied in para materia with all other provisions hereof. c. This Agreement cannot be changed or revised except by written amendment signed by all parties hereto. 13.07. 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. Pelican Walk Parking Garage Development Agreement 23 of 29 July 8, 2003 I I 13.08. 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 or any time period ends on a Saturday or Sunday or on a legal holiday observed in the City, it shall be postponed to the next following business day. 13.09. 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. 13.10. Not an Agent of City. During the term of this Agreement, Pelican Walk hereunder shall not be an agent of the City with respect to any and all services to be performed by Pelican Walk (and any of its agents, assigns, or successors) with respect to the Parking Garage. 13.11 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. 13.12. 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 Pelican Walk nor any other party under or beneficiary ofthis 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. 13.13. Term; Expiration. This Agreement shall expire and no longer be of any force and effect on the thirtieth (30th) anniversary of the issuance of a final certificate of occupancy for the Parking Garage. 13.14 Effective Date. Upon execution of this Agreement by the authorized officers of the City and by authorized representatives of Pelican Walk following approval hereof by the City Commission and the Board of Directors of Pelican Walk, this Agreement shall then be in full force and effect in accordance with its terms and the date of such execution shall be the Effective Date. 13.15. 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. Pelican Walk Parking Garage Development Agreement 24 of 29 July 8, 2003 I I IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals affixed as of this ~ay of August 2003. CITY OF CLEARWATER, FLORIDA BY:~"- :a t4-:1t Wi iam B. Horne II City Manager 711<lform: Pamela K. Akin City Attorney 2. ~. STATE OF FLORIDA ) COUNTY OF PINELLAS ) The foregoing instrument was acknowledged before me this d 0 day of August 2003, by BRIAN J. AUNGST, Mayor-Commissioner of the City of Clearwater, who is personally known to me. ~lJdff!1r?soJ Notary Public ',l'U'", ,'.r.. 'V;:" D . A W" ,.i;-\' '..>t:o enlSe I son ~.~(.6:"}i MY COMMISSION # CC914107 EXPIIIES ~~cf:~' June 18, 2004 ....i/f..r.'.... BONDED THRU Tl/OY FAIN INSURANC!; we. STATE OF FLORIDA ) COUNTY OF PINELLAS ) The foregoing instrument was acknowledged before me this r:1 rA day of August 2003, by WILLIAM B. HORNE II, City Manager of the City of Clearwater, who is personally known to me. f)~4~ Print/Type Name: IS j _ ~Q<.) Notary Public .,.,,"~,. Denise A Wilson !"rA~ MY COMMISSION # CC914107 EXPIIIE~ ~\AI s June 18, 2004 0.1.')."" ...it) BONDED THRU TllOY FAIN INSURANCE.IN'- "p,r"",,' . Pelican Walk Parking Garage Development Agreement 25 of 29 July 8, 2003 I I B.J.E., INC. By: Elias Anastasopoulos ~'\ ~ ANUt~5"'h\.'0) President h\S ~wer ctfAu.. 42'f rm or./\: o.J' STATE OF FLORIDA ) COUNTY OF PINELLAS ) The foregoing instrument was acknowledged before me this ~ day August 2003, by ~::S~.J~/ Elias Anastasopoulos, President ofB.J.E., Inc., a Florida corporation, on behalf ofRJ.E., Inc. ~ q~ '~~~'" Patricia J. Ceelen .:~'~-~Commission # CC 902313 :;!'A~c1~ Expires Feb. 15 2004 ..,1!t,.._...~,~ Bonded Th;u ''',,If!.W,''' Atlllntic Bonding Co., In" Notary Public Pelican Walk Parking Garage Development Agreement 26 of 29 July 8, 2003 I I EXHIBIT A Legal Description Lots 32 through 43, block "B", first addition to Clearwater Beach Park, as recorded in plat book 15, page 80, public records of Pinellas County, Florida, together with the adjacent Y2 of a vacated alley lying along the east boundary thereof. And together with: Lots 2 through 8, block "A", replat of Block "A" and lots 1 to 15 incl. block "B" of Clearwater Beach Park first addition, according to the plat thereof as recorded in plat book 21, page 21 of the public records of Pinellas County, Florida, together with the adjacent Y2 of a vacated alley lying along the west boundary thereof. Pelican Walk Parking Garage Development Agreement 27 of 29 July 8, 2003 I I EXHIBIT B Limited Warranty Deed This Limited Warranty Deed made this _ day of , 2003, by , a corporation organized and existing under the laws of the State of Florida, having its principal place of business and post office address at 791 Bayway Boulevard, Clearwater Florida 33767, Grantor, to the City of Clearwater, Florida, a Florida municipal corporation, whose post office address is P. O. Box 4748, Clearwater Florida 33758-4748, Grantee. (Whenever used herein the terms "grantor" and "grantee" include all the parties to this instrument and the heirs, legal representatives, and assigns of individuals, and the successors and assigns of corporations, trusts and trustees) Witnesseth, that said grantor, for and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) and other good and valuable considerations to said Grantor in hand paid by said Grantee, the receipt whereof is hereby acknowledged, has granted, bargained, and sold to the said grantee, and grantee's heirs and assigns, the following easement in real property located in the County of Pinellas, State of Florida, which is more particularly described as follows: [legal description}, which easement grants to the public the right of access and use of the property and any improvements thereon for off-street parking purposes for a term of thirty (30) years from the Date of Commencement, which Date of Commencement shall be the date on which a Certificate of Occupancy is granted by the City of Clearwater for an off-street parking structure pursuant to that certain Agreement between the City of Clearwater, Florida and B. J. E., Inc., dated July _,2003. Grantor covenants as follows: 1. the grantor is lawfully seized of said land in fee simple; 2. that the grantor has good right and lawful authority to convey the easement set forth herein; 3. that the easement granted is free from encumbrances made by grantor; and I I 4. that grantor will warrant and defend the property hereby conveyed against the lawful claims and demands of all persons claiming by, through, or under it, but against none other. Let it be known that the board of directors of B. J. E., Inc. voted to grant the easement regular meeting held upon due notice with a quorum present. In witness whereof, Grantor has caused its corporate seal to be affixed hereto, and this instrument to be signed by its duly authorized officer on the date first above written. B. J. E., Inc. By [Signature] [Title] [Corporate Seal] Attest: Secretary Executed in the presence of: STATE OF FLORIDA COUNTY Of PINELLAS I HEREBY CERTIFY that on this day of 2003, before me personally appeared and , duly authorized officers of B. J. E., Inc., a corporation under the laws of the State of Florida, I I to me known to be the persons described in and who executed the foregoing conveyance to the City of Clearwater and severally acknowledged the execution thereof to be their free act and deed as such officers, for the uses and purposes therein mentioned; and that they affixed thereto the official seal of said corporation, and the said instrument is the act and deed of said corporation. WITNESS my signature and official seal at in the County of Pinellas County and State of Florida, the day and year last aforesaid. My Commission Expires Notary Public This instrument was prepared by {Name] [Address]