FIRST AMENDMENT TO PARKING GARAGE DEVELOPMENT AGREEMENT DATED 08/26/03
This First Amendment to the Agreement for Grant dated August 26, 2003 (the
"Agreement") is made as of this ~ day of 2004, by and between THE CITY
OF CLEARWATER, FLORIDA, a municipal 0 oration and political subdivision of the State
of Florida (the "City"), and B. J. E., Inc. ("Pelic Walk"),
WITNESSETH:
WHEREAS Pelican Walk is the owner of certain real property on Clearwater Beach
popularly known as the Pelican Walk Shopping Center;
WHEREAS, Pelican Walk 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, the City of Clearwater agreed to 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, Pelican Walk has requested an extension of time to initiate construction of
the Pelican Walk parking garage, from August 26, 2004 until March 31, 2005;
WHEREAS, Pelican Walk has indicated a desire to add residential condominium units to
the project, which requires an amendment to eliminate the option for an additional two levels of
parking if construction of said residential condominium units is approved ("Condominium
Project");
WHEREAS, at a duly called public meeting on the 17th day of June, 2004, the City
Commission approved this First Amendment, and authorized and directed its execution by the
appropriate officials of the City; and
WHEREAS, the Board of Directors ofB. J. E., Inc. has approved this 1st Amendment to
the Agreement and has authorized certain individuals to execute this Amendment on its behalf.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties hereby agree as follows:
Section 1.
Section 2.02 a. is hereby amended to read as follows:
2.02 Proposed Parking Garage.
First Amendment to Pelican Walk Parking Garage Development Agreement
10f6
Section 2.
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.
Provided the Condominium Project proceeds, the Parking Garage will NOT be
designed and constructed in a manner which will allow the subsequent addition of
at least two (2) additional floors of parking, otherwise it shall. The Proiect may
include residential units subiect to approval pursuant to the Land Development
Code. 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. Notwithstanding the foregoing, to the extent that the
Parking Garage contains more than 300 spaces, Pelican Walk may dedicate and
reserve the excess oarking soaces for the Condominium Proiect. However in no
event shall the Parking Garage contain fewer than 300 parking soaces ooen to the
oublic, including the invitees of the Pelican Walk Shooping Center, on an equal.
first come, first served basis.
Section 5.03 a. is hereby amended to read as follows:
5.03 Construction of the Project.
Section 3.
a.
Commencement. Pelican Walk shall commence construction of the Parking
Garage in accordance with the Plans and Specifications for the Parking Garage
withiR twelve (12) mofltfls after the Effeetiye Date on or before March 31, 2005
and shall thereafter diligently pursue construction to completion within thirty-six
(36) months of the Effective Date.
Section 6.02 a. is hereby amended to read as follows:
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:
Section 4.
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 Parking
Garage project budget.
Section 6.04 is hereby amended to read as follows:
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, and provided the Condominium Project does not proceed (and if it
does proceed, this entire section 6.04 shall be of no force or effect) the City agrees that in
First Amendment to Pelican Walk Parking Garage Development Agreement
20f6
the event the City determines, within five (5) 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
K
OAVG =
Stabilized Occupancy
Number of Parking Spaces
Average Percent of Parking Spaces Occupied (65%)
First Amendment to Pelican Walk Parking Garage Development Agreement
30f6
Section 5.
HAVG Average Number of Hours Occupied per Day (4)
OSTAB =(0 AVG)(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.
Section 10.01 is amended to read as follows:
10.01 Failure of Pelican Walk to Commence Construction of the Parking Garage. In the
event that Pelican Walk shall fail to commence construction of the Parking Garage on or
before March 31. 2005 ':lith-in twelve (12) months aftor the Effective Date of this
.^..greem.eflt, 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.
Section 6.
Effective Date.
This amendment shall be effective upon execution.
First Amendment to Pelican Walk Parking Garage Development Agreement
40f6
IN WITNESS WHEREOF, the parties hereto have set their hands and their respe.ctive
seals affixed as of 1his ~ day of ~.--- , 2004.
Countersigned: CITY OF CLEARWATER, FLORIDA
~ B~'La2~..3. ~-rr.
Brian ~ Au gs - - n William B. Home II
Mayor City Manager
A7Ji ZO form:
Pamela K. Akin
City Attorney
Attest:
~c. ~.uL--_
Cyn .' a E. Goudeau "__ :
City lerk--
)
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me this c2 d.. day of (J I AJ
2004, by BRIAN J. AUNGST, Mayor ofthe City of Clearwater, who is personally kno~
~~
'Print/Type Name:..) I t'JAJ (J,/soxJ
Notary Public
STATE OF FLORIDA
",.,s>-'( Plte<;.. Denise A. Wilson
f~ c; Commission # 00296233
~. \) ~ Expires June 18, 2008
~ OF f\.'<f:' Bonded TIoy Fain _Ins\IIIlCll,1nc. 8000386-1019
STATE OF FLORIDA )
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me this d d. day of
2004, by WILLIAM B. HORNE II, City Manager of the City of Clearwater,
o is personally known to me.
~~~
Print/Type Name: /:Su A. {J J I ls 0 U
Notary Public
.,s>-'( PCl~ Denise A. Wilson
f~\ Commission # 00296233
~. \)..4 Expires June 18, 2008
~ OF ~-BondedTloyF8In.InIUI8nC8.1nc. 8008-1019
First Amendment to Pelican Walk Parking Garage Development Agreement
50f6
B.J.E., INC.
By:
~~
Elias Anastasopoulos 0
President
~
STATE OF FLORIDA )
COUNTY OF PlNELLAS )
M .J"u'V\~ 200''l
The foregoing instrument was acknowledged before me this ~ day AasU1)t 2003, by
Elias Anastasopoulos, President ofRJ.E., Inc., a Florida corporation, on behalf ofRJ.E., Inc.
CLtlt~~
Notary Public
"'~~~~ Patricia J. Ceelen
(!~";::: COffi!llission #DD280305
~~" ~:.61~ ExpIres: Feb 15, 2008
"~~op;i.o;;" Bonded Thru
"""'\' Atlantic Bonding Co., Inc.
First Amendment to Pelican Walk Parking Garage Development Agreement
60f6