SECOND AMENDED AND RESTATED DEVELOPMENT AGREEMENT FOR PROPERTY IN THE CITY OF CLEARWATER
SECOND AMENDED AND RESTATED DEVELOPMENT AGREEMENT FOR
PROPERTY
IN THE
CITY OF CLEARWATER
between
THE CITY OF CLEARWATER, FLORIDA,
and
BEACHWALK RESORT, LLC
Dated as of 1Q.Cerrt\~,.3 I 2004
C1J~32 7~ol (3)
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS ..................................................................................................................... 2
Section 1.01
Section 1 .02
Section 1 .03
Definitions.......... .................................................................................................... 2
Use of Words and Phrases.................................................................................... 5
Florida Statutes............ .......................................................................................... 5
ARTICLE 2. PURPOSE, PROPOSAL
AND DESCRIPTION OF PROJECT .................................................................................. 5
Section 2.01
Section 2.02
Section 2.03
Section 2.04
Finding of Public Benefit and Purpose .................................................................. 5
Purpose of Agreement........................................................................................... 5
Scope of Project .................................................................................................... 5
Cooperation of the Parties .....................................................................................8
ARTICLE 3. REGULATORY PROCESS................................................................................................ 8
Section 3.01
Section 3.02
Section 3.03
Land Development Regulations ............................................................................ 8
Development Approvals and Permits .................................................................... 8
Concurrency. ......................................................................................................... 9
ARTICLE 4. PLANS AND SPECIFICATIONS .....................................................................................10
Section 4.01 Preparation of Plans and Specifications.............................................................. 10
ARTICLE 5. PROJECT DEVELOPMENT ............................................................................................ 11
Section 5.01
Section 5.02
Section 5.03
Section 5.04
Section 5.05
Ownership of Project Site .... .................... ........ ..... .............................. ................. 11
Project Site .......................................................................................................... 11
City Option to Purchase....................................................................................... 11
City's Obligations ................................................................................................. 12
Obligations of the Developer ............................................................................... 16
ARTICLE 6. PROJECT FINANCING .................................................................................................... 19
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
Notice of Project Financing to City...................................................................... 19
Copy of Default Notice to City.. ..... .............. .................................. .......... ............ 19
City Option to Pay Mortgage Debt or Purchase Project ...................................... 19
Assignment of Rights Under Agreement to Project Lender................................. 20
Notice to Project Lender ...................................................................................... 20
Consent of Project Lender...................................................................................20
Estoppel Certificates........ .............. ................. ........... ...... ......................... ........... 21
Cooperation......................................................................................................... 21
Reinstatement by Project Lender ......... ................. ............................ .......... ........ 21
New Agreement................................................................................................... 21
Transfer of New Agreement................................................................................. 22
Survival................................................................................................................ 22
ARTICLE 7. CONSTRUCTION ............................................................................................................22
Section 7.01
Section 7.02
Section 7.03
Section 7.04
Section 7.05
Site Work ............................................................................................;................ 22
Construction ........................................................................................................ 22
Construction Completion Certificate ............................................ ........... ............. 24
City not in Privity .................................................................................................. 25
Construction Sequencing and Staging Area .......................................................25
ARTICLE 8. INDEMNIFICATION .......................................................................................................... 25
Section 8.01 Indemnification by the Developer ........................................................................25
Section 8.02 Indemnification by the City.......... ;................. .................. ............... ........... ........... 26
Section 8.03 Limitation of Indemnification ................................................................................ 27
ARTICLE 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF
THE DEVELOPER ........................................................................................................... 27
Section 9.01 Representations and Warranties ......................................................................... 27
Section 9.02 Covenants........... ...................... ......................................... .................................. 29
ARTICLE 10. REPRESENTATIONS, WARRANTIES AND COVENANTS OF
THE CiTy.............................. .......................................................................................... 30
Section 10.01 Representations and Warranties .........................................................................31
Section 1 0.02 Covenants............................................................................................................31
ARTICLE 11. CONDITIONS PRECEDENT .........................................;.................................................... 32
Section 11.01 Construction of Project ........................................................................................ 32
Section 11.02 Responsibilities of the Parties for Conditions Precedent..................................... 33
ARTICLE 12. DEFAULT; TERMINATION............................................................................................ 33
Section 12.01
Section 12.02
Section 12.03
Section 12.04
Project Default by the Developer......................................................................... 33
Default by the City ...............................................................................................35
Obligations, Rights and Remedies Cumulative ................................................... 36
Non-Action on Failure to Observe Provisions of this
Agreement........................................................................................................ 36
Termination ..................... ..................................................................................... 36
Termination Certificate............ ............................................................................. 38
Section 12.05
Section 12.06
ARTICLE 13. RIGHT TO CONTEST ....................................................................................................38
Section 13.01 Right to Contest ......................... ............ ............................ .................................. 38
Section 13.02 Conditions ............................................................................................................ 38
ARTICLE 14. ARBITRATION ............................................................................................................... 39
Section 14.01 Agreement to Arbitrate...... .................. ....................... ........................ .................. 39
Section 14.02 Appointment of Arbitrators... .................... .............................. .......... .................... 39
Section 14.03 General Procedures............................................................................................. 41
Section 14.04 Majority Rule ........................................................................................................ 41
Section 14.05 Replacement of Arbitrator.. .......................... ........................... ............................. 41
Section 14.06 Decision of Arbitrators ......................................................................................... 41
Section 14.07 Expense of Arbitration ......................................................................................... 42
Section 14.08 Accelerated Arbitration ................... ....................... ............. ............... ............ ...... 42
Section 14.09 Applicable Law..... ................. ..... .......................................................................... 43
Section 14.10 Arbitration Proceedings and Records.................................................................. 43
ARTICLE 15. UNAVOIDABLE DELAY ................................................................................................ 43
Section 15.01 Unavoidable Delay...............................................................................................43
ARTICLE 16. RESTRICTIONS ON USE .............................................................................................. 44
Section 16.01 Project.................................................................................................................. 44
ARTICLE 17. FIRE OR OTHER CASUALTY; CONDEMNATION....................................................... 44
Section 17.01 Loss or Damage to Project ..................................................................................44
Section 17.02 Partial Loss or Damage to Project....................................................................... 45
Section 17.03 Project Insurance Proceeds ........ ..................... ............................... .............. ...... 45
Section 17.04 Notice of Loss or Damage to Project................................................................... 46
Section 17.05 Condemnation of Project or Project Site; Application
of Proceeds...................................................................................................... 46
Section 17.06 Approvals ............................................................................................................. 46
ARTICLE 18. MiSCELLANEOUS......................................................................................................... 46
Section 18.01
Section 18.02
Section 18.03
Section 18.04
Section 18.05
Section 18.06
Section 18.07
Section 18.08
Section 18.09
Section 18.10
Section 18.11
Section 18.12
Section 18.13
Section 18.14
Section 18.15
Section 18.16
Section 18.17
Section 18.18
Section 18.19
Section 18.20
Assignments ........................................................................................................ 46
Successors and Assigns...................................................................................... 47
Notices................... ........... ........... ........................................................................ 47
Applicable Law and Construction .... .......................................................... .......... 48
Venue; Submission to Jurisdiction....................................................................... 48
Estoppel Certificates ......... ..... .... ............................................................... ........... 49
Complete Agreement; Amendments ................................................................... 49
Captions............................................................................................................... 50
Hol idays ............................................................................................................... 50
Exhibits................................................................................................................ 50
No Brokers ......... ........... ............... ....................................... .............. ................... 50
Not an Agent of City............................................................................................. 50
Memorandum of Development Agreement.......................................................... 50
Public Purpose..................................................................................................... 50
No General Obligation ......................................................................................... 51
Other Requirements of State Law....................................................................... 51
Technical Amendments, Survey Corrections ...................................................... 51
Term; Expiration; Certificate ...... .......................................................................... 51
Approvals Not Unreasonably Withheld ................................................................ 52
Effective Date ...................................................................................................... 52
EXHIBITS
Legal Description of Controlled Property ...................................................................................................... A
Project Description............................. ...... ...... ............. ....... ................................ ... ........................................ B
Project Site............ .............................. ....... ............. .... ........ ......... ......................... ..... ...................... ......... .... C
Project Development Schedule.................................................................................................................... D
Covenant Trip Generation Management Program ....................................................................................... E
Covenant Regarding Hurricane Watch Closure & Use & Occupancy of Resort Hotel................................. F
List of Required Permits & Approvals........ .... .................... ........................ ...... ............................................. G
Public Improvements.................................... ................................................................................................ H
Appraisal Instructions.................................. .................................................................................................. I
Covenant of Unified Use................................................... .............................................................................J
License Agreement....... ...............................................................................................................................K
Beach Concession Standards......................................................................................................................L
Beach Walk Improvement Schedule...... ...................................................................................................... M
Minimum Hotel Quality Standards ...............................................................................................................N
Parking Rate Com parables................. ........................................................................................................ 0
This Second Amended Agree~ent for Development of Property (the
"Agreement") is made as of this ~ day of ~ ~ ~ I 2004, by and
between THE CITY OF CLEARWATER, FLORIDA, a Florida municipal
corporation (the "City"), and BEACHWALK RESORT, LLC, a Florida limited
liability company (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, Beach by Design identifies a need for additional public
parking on Clearwater Beach;
WHEREAS, Beach by Design calls for the removal and replacement of
surface parking spaces located to the west of South Gulfview to the south of Pier
60 Park;
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 ("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 requires the use of the Hotel
Unit Pool for 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 as resort hotel operating under a
national or international "flag" or other comparable marketing affiliation or
program;
WHEREAS, Beachwalk Resort, LLC proposes to develop a resort hotel
and residential project on certain property fronting on South Gulfview (the
"Project Site") and has proposed to include at least seven hundred and fifty (750)
parking spaces of which at least four hundred (400) spaces shall be open to the
public;
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WHEREAS, it is necessary that the City take certain actions in order to
make it possible for Beachwalk Resort, LLC 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 F. S. 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, the City and Developer entered into a Development
Agreement for development of real property in the City of Clearwater dated
March 13, 2001, which was amended by the First Amended and Restated
Development Agreement dated August 28, 2002;
WHEREAS, it is necessary to enter into this Second Amended and
Restated Development Agreement in order to revise the funding and construction
procedures for Beach Walk, authorize 24 additional units from the Hotel Unit
Pool, change the permitted uses, revise the Termination provisions, revise the
hotel quality standards, revise the beach concessions provisions and other
changes;
WHEREAS, the City has conducted public hearings as required by S 4-
206 and 4-606 of the Community Development Code;
WHEREAS, at a duly called public meeting on , 2004, the
City Council approved this Amended and Restated Development Agreement and
authorized and directed its execution by the appropriate officials of the City;
WHEREAS, the members of Beachwalk Resort, LLC have 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. Definitions. The terms defined in this Article 1 shall have the following
meanings except as herein otherwise expressly provided:
1. "Agreement" means this Second Amended and Restated Agreement for
Development of Property including any Exhibits and any amendments thereto.
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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 Councils Rules for the
designation of a Community Redevelopment District, as amended by Ordinance
7194-94.
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 (see Section 5.05(12)).
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 (see Section 7.03).
8. "Controlled Property" means those properties within the Project Site which
have been purchased by 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 A to this Agreement.
9. "Developer" means, for the purposes of this Agreement, Beachwalk Resort,
LLC and its successors and assigns as provided in Article 18.
10. "Effective Date" means the date of approval and execution of the
Development Agreement.
11. "Exhibits" means those agreements, diagrams, drawings, specifications,
instruments, forms of instruments, and other documents attached and designated
as exhibits to, and incorporated in and made a part of this Second Amended and
Restated Development Agreement.
12. "Garage Access Improvements" means the pedestrian overpass, landing,
arcade, elevated sidewalk, and facilities to provide concessions along the
western facade of the Project (but not within the resort building) providing access
to the proposed garage which garage shall include at least four hundred (400)
parking spaces as a part of the Project which are to be available to the general
public, as more particularly described on Exhibits Hand L. The Garage Access
Improvements shall be owned by the City and shall be maintained by the
Developer in accordance with operating standards compatible with the Hotel.
13. "Meeting Space" means any building floor area which can be used in
conjunction with conference or meeting activities.
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14. "Net Cost of South Gulfview and Beach Walk Improvements" means the total
cost of the South Gulfview and Beach Walk Improvements, including any debt
service, and other funds from sources other than the City, not including any fair
share or pro rata payments made by the owners of other properties which front
on South Gulfview.
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 I filed with the City as
required by the Land Development Regulations for the purpose of review and
approval.
17. "Project" means, collectively, the concept of development for a resort hotel
proposed by the Developer as described in Section 2.03(1) of this Agreement
and the preliminary plans which are attached hereto as Exhibit B.
18. "Project Site" means the land area generally bounded by the western edge of
the right-of-way of Coronado Street, on the north by the southern boundary of the
Golden Sands Motel property, sometimes referred to as the "Spyglass property",
on the south by the northern boundary of the property popularly known as the
"Legends property," and on the west by the centerline of South Gulfview, which is
more particularly described and depicted on Exhibit C (see Section 5.02).
19. "South Gulfview and Beach Walk Improvements" means the proposed
realignment of South Gulfview and the construction of a thirty-five (35) foot wide
promenade, a ten (10) foot bicycle/skating path, a ten (10) foot beachfront
pedestrian path, thirty two (32) paid parallel surface parking spaces and
associated landscaping from the Adams Mark Resort to Coronado Street, as
more particularly shown on Exhibit H.
20. "Termination Date" means the date a termination certificate is issued
pursuant to Article 12.
21. "Termination for Cause" means a termination which results from an uncured I
material breach of the Agreement.
22. "Unavoidable Delay" means a delay as described in Article 15 hereof.
23. "Vacation of Rights-of-Way" means the abandonment of the right-of-way of
Third Street between the right-of-way of Coronado and the centerline of the
existing right- of-way of South Gulfview and the eastern half of the existing right-
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Page 4
of-way of South Gulfview within the Project Site 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.
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 I without limitation, the addition of 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 for South Gulfview, including the removal of parking
from the dry sand beach, implementation of the South Gulfview and Beach Walk
Improvements and the Garage Access Improvements 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 public parking, private parking, resort
hotel, residential and retail uses and appropriate accessory uses and shall
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Page 5
be developed in substantial conformity with the preliminary plans of
development which are attached as Exhibit B. The Project Site is a
"Community Redevelopment District," pursuant to the Pinellas County
Planning Council's Rules which authorizes an increase in hotel unit
density pursuant to the provisions of Beach by Design. The intensity of
permitted use on the Project Site shall be:
a. Public Parking - at least 400 spaces.
b. Private parking -at least 350 spaces.
c. Hotel - The Hotel shall include no more than two hundred
fifty (250) hotel units (which may be submitted to condominium
ownership), a minimum of twenty thousand (20,000) square feet of
Meeting Space and other amenities accessory to the Hotel, including, but
not limited to restaurants, bars, exercise and spa facilities, beach club,
outdoor recreation space, storage, back office and administration areas
and other functional elements related to the Hotel, including not more than
twenty five thousand (25,000) square feet of retail/restaurant floor area.
Of the hotel units, 209 are Hotel Unit Pool units, which shall be required to
be submitted to a rental program requiring that such unit be available for
overnight hotel guests on a transient basis for no fewer than 330 days in
any calendar year, subject to force majeure events making such rooms
unavailable for occupancy and subject further to the right of the operator
to remove such rooms from service as necessary to assure compliance of
such rooms with the operating standard of such operator. In order to
assure the high quality resort experience called for under this Agreement,
all such units, as well as the units not representing bonus units, shall be
operated by a single hotel operator who shall meet the requirements as to
operating standards set forth in Exhibit N of this Agreement.
d. Residential Units - not more than 18 units.
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 individual ownership formats provided
that the requirements as to availability for transient occupancy and as to a
single hotel operator set forth in Section 2.03(1) (c) are satisfied.
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 shall be permitted.
4. 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
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Page 6
be used as a primary or permanent residence and each unit from the
Hotel Unit Pool shall be required to be available to transient hotel guests
and to be operated as described in Section 2.03(1 )(c). 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 F, limiting the use and operation of
the resort hotel units and implementing this paragraph.
5. As a condition of the allocation of 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 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, 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 F, 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 by the National Hurricane Center which includes
Clearwater Beach.
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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.
ARTICLE 3. REGULATORY PROCESS.
3.01. Land Development Regulations.
1. Land Use DesiQnation. The Project Site is designated Tourist
District in the City's land Development Regulations.
2. Amendments to Comprehensive Plan & Land Development
ReQulations. The City has amended the Comprehensive Plan of the
City of Clearwater to recognize the Goals and Objectives set forth
in Beach by Design and has designated Clearwater Beach as a
Community Redevelopment District in accordance with Beach by
Design pursuant to Pinellas County Planning Council Rules.
3. Allocation of Units from Hotel Unit Pool. Subject to the terms and
conditions of this Agreement, the City hereby allocates and grants
to Developer from the Hotel Unit Pool an additional two hundred
nine (209) hotel units to the Project Site in accordance with
applicable law. The allocation of additional hotel units from the
Hotel Pool shall expire and be of no further force and effect unless
the Commencement Date occurs on or before March 6, 2006.
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 for the
Project, 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,
subject to the provisions of Section 5.05(5). The City shall, to the extent
possible, expedite review of all applications. 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
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ADOPTED 12-2-04
Page 8
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 specific tasks to be completed through the
entire Project. Failure to accomplish the tasks in the time frames
referenced herein shall not in and of itself result in a default pursuant to
this Agreement.
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 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 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 Exhibit H to this Agreement or other improvements
in the immediate vicinity of the Project Site.
6. Commencement of South Gulfview Construction. Developer shall notify
the City sixty (60) days prior to commencement of South Gulfview
pavement removal.
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ADOPTED 12-2-04
Page 9
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 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 until March 6, 2006
and that such period shall be automatically extended for an
additional three (3) years if the Developer commences construction
by March 6, 2006. The City recognizes and acknowledges that the
Developer will rely upon such reservation in proceeding with the
Project.
3. Reauired 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 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.
3. Approval of Plans and Specifications for the Parkinq Spaces Which
Are To Be Available to the Public. In order to ensure that the
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Second Amended Development Agreement
ADOPTED 12-2-04
Page 10
design of the parking spaces which are to be available to the public
will achieve the City's purpose in making parking available on
Clearwater Beach, the Plans and Specifications for the Project shall
be submitted to the City for review and comment prior to the
submission of any application for a building permit, other than a
foundation permit. The City agrees to diligently proceed with and
complete its review of the Plans and Specifications, and respond to
the Developer as soon as reasonably possible after receipt thereof
and advise the Developer in writing of the City's comments and
objections, if any, thereto. The City shall notify the Developer in
writing within thirty (30) days of receipt that the Plans and
Specifications have or have not been approved, and in the case of
disapproval, the specific reason(s) for such disapproval. If the Plans
and Specifications submitted to the City by the Developer
substantially comply with this Agreement and further the purposes
of the Comprehensive Plan, the City shall approve the Plans and
Specifications as submitted.
ARTICLE 5. PROJECT DEVELOPMENT.
5.01. Ownership of Project Site. The Developer is the owner of certain parcels
of land within the Project Site which are more particularly described in Exhibit A
to this Agreement ("Controlled Property").
5.02. Project Site. The Project Site consists of those properties located in an
area which is bounded by the western right-of-way of Coronado Street, on the
north by the southern boundary of a parcel of land generally known as the
Golden Sands Motel property, on the south by the northern boundary of a parcel
of land generally known as the "Legends" property, and on the west by the
centerline of South Gulfview as more particularly illustrated in Exhibit C.
5.03. City's Option to Purchase.
1. Parkinq in the Proiect. At any time within five (5) years after the
issuance of a certificate of occupancy for the parking spaces within
the Project which are to be available to the public, in the event that
the City determines that the parking rates charged by the
Developer for the parking spaces which are available to the public
are unreasonable, which for the purposes of this Paragraph shall
be two and thirty five one hundredths (2.35) times the parking rate
necessary to cover debt service required to publicly construct a
comparable parking space, the City shall have the option to
purchase the parking spaces which are to be available to the public
from the Developer, in the form of a condominium ownership, at the
fair market value of the spaces at the time the City exercises its
option. If requested by the City, the Developer will endeavor to
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ADOPTED 12-2-04
Page 11
segregate the spaces to be conveyed to the City through the
imposition of a condominium regime. The fair market value of the
parking spaces shall be determined by appraisal of the property
pursuant to the appraisal instructions attached hereto as Exhibit I.
The appraisals shall be conducted by two (2) appraisers retained
by the City. One of the appraisers shall be selected from a list of
qualified appraisers submitted to the City by the Developer. In the
event that the two (2) appraisals are within twenty percent (20%) of
each other, the fair market value shall be the average of the two (2)
appraisals. In the event that the appraisals differ by more than
twenty percent (20%), the two appraisers shall select a third
appraiser from the City's master list of qualified appraisers,
including the list submitted by the Developer, and the third
appraiser shall select among the two (2) appraisals which in the
opinion of the third appraiser most accurately represents the fair
market value of the parking spaces.
2. Proiect Site. In the event the Developer fails to commence
construction by March 6, 2006, at Developer's request the City
agrees to purchase the Project Site as described in Exhibit A at fair
market value, but in no event shall the purchase price exceed
$6,000,000. The fair market value shall be established by an
appraisal process. The appraiser shall be directed to establish the
value of the property assuming Third Street and South Gulfview
Drive are not vacated and disregarding the additional development
rights (209 hotel units) provided in the Development Agreement.
The appraisal of the Project Site shall reflect the higher of: (i) the
highest and best use of such property at the time of appraisal, or (ii)
the value of the Project Site with existing buildings and existing
sixty-five (65) hotel units in place at the time of execution of the
Development Agreement (i.e. as existing in 2002, before
demolition, but valued at the time of the appraisal in 2006). The
appraisals shall be conducted by two (2) appraisers retained by the
City. One of the appraisers shall be selected from a list of qualified
appraisers submitted to the City by the Developer. In the event that
the two (2) appraisals are within twenty percent (20%) of each
other, the fair market value shall be the average of the two (2)
appraisals. In the event that the appraisals differ by more than
twenty percent (20%), the two appraisers shall select a third
appraiser from the City's master list of qualified appraisers,
including the list submitted by the Developer, and the third
appraiser shall select among the two (2) appraisals which in the
opinion of the third appraiser most accurately represents the fair
market value of the property.
5.04. City's Obligations.
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Second Amended Development Agreement
ADOPTED 12-2-04
Page 12
1 South Gulfview and Beach Walk Improvements. The City shall be
responsible for the design, construction and funding (subject to the
payment by Developer of its pro rata share as provided herein) of
the South Gulfview and Beach Walk Improvements. The City
further agrees to complete construction in accordance with the
schedule attached hereto as Exhibit M. The City's utilization of the
construction schedule in Exhibit M is dependent upon payment by
Developer of Developer's Pro Rata Share (defined herein) and the
Accelerated Construction Payment (defined herein) to the City prior
to the City awarding the construction bid.
2. Vacation of Riahts-of-Wav. The City Council has adopted an
ordinance vacating the right- of-way of 3rd Street between
Coronado Avenue and the centerline of the existing right-of-way of
South Gulfview Drive and the eastern half of the existing right-of-
way of South Gulfview Drive included within the Project Site, as
depicted on Exhibit H. The vacation is conditioned on the
construction of the Project. The Council shall consider adoption of
ordinances amending the vacation ordinances to be effective upon
commencement of construction of the project and to further amend
the ordinances to be consistent with the terms of this Agreement.
The City hereby acknowledges that Developer and Developer's
lender are relying on the City's vacation as described herein.
Developer and Developer's Lender acknowledge that the granting
of such vacation is discretionary by the City Council.
3. Parkino Garaae. In the event that the City exercises its option to
purchase public parking spaces as provided in Section 5.03 of this
Agreement, not less than forty percent (40%) of the parking spaces
located on the first two levels of the garage shall be designated as
public spaces and such spaces to be conveyed shall be located in
discrete areas which are reasonably accessible to the point or
points of access to the beach. Such conveyance shall be subject to
covenants and restrictions affecting the property that impose
reasonable operating standards with regard to the parking garage
that are compatible with the Hotel and the standards set forth in this
Agreement, however, in no event shall such standards
unreasonably impair the operation and maintenance of the property
as a public parking garage.
4. 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.
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ADOPTED 12-2-04
Page 13
5. Authoritv for Cafe Seatinq. The City understands that the Developer
intends to apply for all necessary permits and licenses for outdoor
cafe seating in connection with the Project. In that connection, the
City shall consider Developer's application pursuant to the
provisions of the City's Land Development Regulations; provided
that such activities shall not interfere with the use of the west half of
the thirty-five (35) feet of the existing right-of- way of South
Gulfview Drive for pedestrian and vehicular movement in
accordance with the provisions of Beach by Design, including the
intra-beach transit system proposed in Beach by Design.
6. Garaqe Access Improvement Approval. The City shall grant the
Developer the authority to construct the Garage Access
Improvements and associated pedestrian facilities extending from
the Project Site across the re-aligned South Gulfview Drive to
public land, as shown on Exhibit H and, in that connection, no later
than the Commencement Date, the City shall grant to the
Developer a License Agreement as described in Exhibit K.
7 Concessions. The City shall grant the Developer authority to
operate concessions on land to the west of the existing centerline
of South Gulfview Drive, adjacent to the Project site, subject to any
existing franchise or concession rights and compliance with all
requirements of the City Code, and subject to a long term license
agreement to be approved by the City, substantially in the form as
Exhibit K. The license agreement shall be for a term of 50 years,
commencing on the date the facilities are available for use, and be
subject to a right of termination by the City for an uncured breach of
a material obligation by the Developer. Such concessions may
include a facility open to the public which provides towels, lockers,
minimal beach sundries, and other beach gear required to operate
a first-class beach hotel, but not including benches, lounges,
umbrellas and side tables. Such facilities shall be built into the
beach landing portion of the pedestrian overpass, as more
particularly depicted on Exhibit H. Notwithstanding the foregoing, in
regard to beach chairs, lounges, umbrellas, side tables and the
level of services associated with the provision thereof ("Beach
Concessions"), the City shall retain the right to utilize a
concessionaire to provide said Beach Concessions. The City
agrees that the City concessionaire shall offer the Beach
Concessions which comply with the standards set out on Exhibit L,
attached hereto and made a part hereof. If the City's franchisee
fails to comply with the standards in Exhibit L Developer may send
written notice to the City specifying the non-compliance, after which
the City has thirty (30) days to cure said non-compliance. In the
event that the non-compliance is not cured within thirty (30) days,
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ADOPTED 12-2-04
Page 14
the City agrees that the Developer may thereafter provide the
Beach Concessions and shall retain all income derived therefrom:
If the Developer assumes control of the Beach Concessions, and
the City receives documented complaints that the Beach
Concessions are being denied to non-hotel guests, or if Developer
fails to comply with the standards set out in Exhibit L, the City may
send written notice to Developer specifying the non-compliance. In
the event that the non-compliance is not cured within thirty (30)
days, the City may take back the Beach Concessions.
8. Approval of Plans and Specifications for the South Gulfview and
Beach Walk Improvements. The City shall prepare Plans and
Specifications for the South Gulfview and Beach Walk
Improvements. The City shall provide drafts of such plans to the
Developer for review and comment. The City shall consider the
Developer's comments and recommended changes in the Plans.
9. Timely Completion. 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 I and inspection program
for this Project.
10. Additional Public ParkinQ. The City agrees that the City will not use
public funds to provide more than three hundred (300) additional
parking spaces (net increase in the number of spaces above the
number of public parking spaces in existence on the effective date
of this Agreement) which are available for use by the public within a
radius of a quarter-mile of the Project Site for a period of five (5)
years after the issuance of a certificate of occupancy for the
Project, unless otherwise agree to by the Parties. Notwithstanding
the foregoing, the parking restrictions in this Section 5.04(10) do
not apply provided that:
a. The parking spaces are constructed on the City owned
Marina Site.
b. The parking spaces are City financed and owned.
c. The parking spaces comply with the rate requirements set
out in Section 5.05(3) herein.
d. The parking spaces do not open prior to two (2) years after
Developer obtains a certificate of occupancy for the
Project.
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Second Amended Development Agreement
ADOPTED 12-2-04
Page 15
11. Garaqe Access Improvements. The Developer shall be responsible
for the design construction and funding of the Garage Access
Improvements, subject to the following reimbursements:
a. The City shall make an amount available equal to fifty
percent (50%) of the net increase in municipal ad valorem
taxes provided by the Project above the ad valorem taxes
generated by the improvements existing on the Project Site
on March 1, 2001, to repay the costs of design and
construction of the Garage Access Improvements, for a
period of time not to exceed twenty five (25 years).
b. The City shall make an amount available equal to fifty (50%)
percent of the net increase in the utility tax provided by the
Project above the utility taxes generated by the
improvements existing on the Project Site in the twelve (12)
months preceding March 1, 2001, as documented by the
Developer, to repay the costs of design and construction of
the Garage Access Improvements, for a period of time not to
exceed twenty five (25) years. In the event that the
Developer fails, for any reason, to document the annual
utility taxes paid by the owners of the existing improvements
on the Project Site in the twelve (12) months preceding
March 1, 2001, the incremental utility tax which is to be
made available to the Developer shall be the increase in
utility taxes above the amount of annual utility taxes paid by
the Developer during any consecutive twelve (12) month
period during which the Beach Place and Glass House
Motels were open and operational, but no earlier than the
twelve (12) months prior to March 1, 2001. In the event that
the Developer fails, for any reason, to document the above
referenced annual utility taxes, the incremental utility tax
which is to be made available to the Developer shall be the
increase in utility taxes above the amount of annual utility
taxes paid by the Developer during the first year of operation
of the Project, which amount shall be provided to the City
within thirty (30) days after the end of the first year of
operation.
c. The City shall make an amount available equal to the
operating income for the thirty two (32) new parking spaces
created as part of the Beach Walk Improvements to repay
the costs of design and construction of the Garage Access
Improvements, for a period of time not to exceed twenty five
(25) years.
TPA:340249:10
Second Amended Development Agreement
ADOPTED 12-2-04
Page 16
5.05. Obligations of ~he Developer.
1 Resort Hotel and Parkino Garaoe Proiect. The Developer shall
build and operate a two hundred and fifty (250) room resort hotel to
be operated as a Hyatt resort or by an operator other than Hyatt
who meets the standards set forth for the hotel operator in Exhibit N
Minimum Quality Standards, together with a parking garage
containing at least seven hundred and fifty (750) parking spaces
and eighteen (18) residential units. The parking spaces shall be no
narrower than nine (9) feet and no shorter than eighteen (18) feet,
and no two-way aisle shall be less than twenty five (25) feet in
width.
The City agrees that Hyatt Corporation is an operator of hotels
under a national brand that is generally regarded as operating
hotels at a standard regarded as being higher that the minimum
standard required of a AAA three diamond or a Mobil 3 star hotel.
2 Responsibility for On-Site Costs. The Developer shall be
responsible for all on-site costs relative to the development of the
Project, including the parking spaces which are required to be open
to the public.
3 Parkinq. The Developer agrees to make at least four hundred (400)
parking spaces within the Project available to the general public
within the parking garage. The Developer may charge the public for
use of the parking spaces which are available to the general public
on terms and rates which are market-based and commensurate
with terms and rates which are in effect for comparable beachfront,
covered parking structures in Florida resort areas, a list of which is
attached hereto as Exhibit O.
4 Garaqe Access I mprovements. The Developer shall be responsible
for the design, construction and funding of the Garage Access
Improvements
5. Cost of South Gulfview and Beach Walk.
a. The City's portion of the Transportation Impact Fee shall be
credited to the Developer against the cost of Developer's fair
share of the South Gulfview and Beach Walk Improvements
as described in subsection (b) below.
b. The Developer shall be responsible for a pro rata share of
the cost of the South Gulfview and Beach Walk
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ADOPTED 12-2-04
Page 17
Improvements, which shall be equal to the net cost of the
South Gulfview and Beach Walk Improvements multiplied by
a fraction in which the front footage of the Project Site is the
numerator and the total frontage along South Gulfview and
Beach Walk Improvements is the denominator.
SPR = (F PRoiF SGBW) x (CSGBW)
SPR = Pro Rata Share
FpRoJ = Frontage of Project Site
FSGBW = Total Frontage along South Gulfview
and Beach Walk Improvements
CSGBW = Net Cost of South Gulfview and Beach
Walk Improvements
The City has determined that the Developer's pro rata share
is One Million One Hundred Ninety Thousand Dollars
($1,190,000.00) ("Developer's Pro Rata Share"). In addition,
Developer agrees to pay the City an additional Two Hundred
Eighty Thousand Dollars ($280,000.00) in exchange for the
City's agreement to utilize the specific construction schedule
attached hereto as Exhibit M ("Accelerated Construction
Payment"). The City's utilization of the construction schedule
in Exhibit M is dependent upon payment of Developer's Pro
Rata Share and the Acceleration Construction Payment to
the City prior to the City awarding the construction bid. The
City agrees to utilize best efforts to meet the construction
schedule specified in Exhibit M recognizing that time is of the
essence. If Developer's Pro Rata Share and Accelerated
Construction Payments are not made by April 1, 2005, the
amount due will be increased each month by the
Construction Cost Index as published monthly by the U.S.
Dept. of Commerce. Such pro rata share shall be paid prior
to issuance of the foundation permit for the project.
c. In the event that any property which fronts on
the South Gulfview and Beach Walk
Improvements is proposed for redevelopment
using the pool of additional resort units
established pursuant to Beach by Design, the
developer of such property shall be required to
pay to the City a pro rata share of the cost of
the South Gulfview and Beach Walk
Improvements as a condition of development
approval.
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Second Amended Development Agreement
ADOPTED 12-2-04
Page 18
6. Covenant of Unified Use. The Developer hereby agrees to execute
the covenant of unified use and development for the Project Site, in
form of Exhibit J attached hereto, providing that the Project Site
shall be developed as a single project and operated and used, as a
unified mixed use project, provided however, that nothing shall
preclude the Developer from selling all or a portion of the Project
Site or the improvements constructed thereon in a condominium or
other form of ownership.
7. Proiect ObliQations. The Developer agrees to carry out the
redevelopment of the Project Site by completing the purchase of all
of 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 operating the Project as a
unified and integrated project. The Developer shall take all actions
necessary to maintain control of the Project Site, until a certificate
of occupancy is issued by the City.
8. Dedication of RiQht-of-Wav. Prior to the issuance of a building
permit, other than a foundation permit, authorizing the construction
of the resort hotel units, the Developer shall dedicate ten (10) feet
along the entire eastern boundary of the Project Site, including any
land previously included within the right-of-way of Third Street to
the City as additional right-of-way for Coronado Avenue.
9. Commencement of Construction. The Developer shall commence
construction of the Project by March, 2006, and shall thereafter
diligently pursue completion of the Project.
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 Construction 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
TPA:340249:10
Second Amended Development Agreement
ADOPTED 12-2-04
Page 19
pleadings in any proceeding instituted by the Project Lender(s) incident
thereto.
6.03. City Option to Pay Mortgage Debt or Purchase Project Following
Commencement of Construction of Project.
1 . Assiqnment of Mortqaqe. Any mortgage instrument pertaining to
any portion of the Project Site in effect prior to issuance of the
Construction Completion Certificate for such portion of the Project
Site shall provide that following a failure of the Developer to repay
any Project Financing which shall become due and payable by
maturity or acceleration, the City is entitled, upon giving reasonable
written 'notice to the Developer, the Project Lender(s) and any other
holder of such a mortgage, to an assignment of the mortgage
securing the Construction Financing by paying to the Project
Lender an amount of money not to exceed a sum equal to the
amount of money advanced by the Project Lender(s) to the
Developer with respect to the Project Site, together with unpaid
accrued interest on such amount, prepayment penalties, and all
other accrued charges of the Project Lender(s) (including, without
limitation, reasonable attorneys' fees incurred as a result of a
default by the Developer under the Project Construction Financing).
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
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Second Amended Development Agreement
ADOPTED 12-2-04
Page 20
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 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.
6.9 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:
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ADOPTED 12-2-04
Page 21
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.
ARTICLE 7. CONSTRUCTION OF GARAGE ACCESS IMPROVEMENTS.
7.01. Site Work. The Developer shall be responsible for all site investigation,
environmental testing, demolition and site clearing in regard to the construction of
the Garage Access Improvements.
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ADOPTED 12-2-04
Page 22
7.02. Construction.
1. Commencement. The Developer shall construct the Garage Access
Improvements, substantially in accordance with the Plans and
Specifications therefor. The Developer shall commence
construction by March 2006 in accordance with Section 5.05(12).
a. 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 completion of that part of the Project.
b. All obligations of the Developer (including deadlines in the
Commencement Date) with respect to commencement and
continuation of construction in regard to the Garage Access
Improvements, shall be subject to delays and extensions
from time to time for Unavoidable Delay (see Article 15).
The 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, the
Developer shall continue, pursue and prosecute the construction of
the Garage Access Improvements 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 work.
For purposes of this subsection (b), "abandoned" means to have
ceased any construction work which effectively advances the
construction of the work toward completion, including removing all
or substantially all of the construction work force from the site of the
Garage Access Improvements.
3. Payment of Contractors and Suppliers. The Developer shall
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 to the Developer or any
Contractors in connection with construction of any part of the
Garage Access Improvements.
4. Maintenance of Construction Site. During the construction of the
Garage Access Improvements, the Developer shall, at its own
expense, keep the site of the Garage Access Improvements in
good and clean order and condition, and the Developer shall
promptly make all necessary or appropriate repairs, replacements
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and renewals thereof, structural or nonstructural, ordinary or
extraordinary, foreseen or unforeseen. All repairs, replacements
and renewals shall be equal in quality and class to the original
work. When making such repairs, replacements or renewals, the
Developer shall comply with all laws, ordinances, codes and
regulations then applicable to that part of the Garage Access
Improvements. The Developer shall have the right, after written
notice to the City, to contest by appropriate legal proceedings
conducted in good faith, the validity or applicability of any such law,
ordinance, code or regulation, and to delay compliance therewith
pending the prosecution of such proceeding, provided that such
contest shall be in accordance with the Right to Contest provisions
of Article 13.
7.03 Construction Completion Certificate.
1. For purposes of this Section 7.03, "completion, "complete,"
"substantially complete" or "substantial completion" means, with
respect to construction of the Garage Access I mprovements, shall
be the acceptance of the Garage Access Improvements by the City.
2. Upon the substantial completion of the construction of the Garage
Access Improvements in accordance with the provisions of the
Plans and Specifications, the Developer shall prepare and execute
the 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 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
the Developer. The date of the Construction Completion Certificate
shall be the date when all parties shall have executed said
certificate.
3. The Construction Completion Certificate shall constitute a
conclusive determination by the parties hereto of the satisfaction
and termination of the obligations of the Developer hereunder to
construct the Garage Access Improvements 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.
4. If the City shall refuse or fail to execute the Construction
Completion Certificate after receipt of a request by the Developer to
do so, then the City shall, within ten (10) days after its receipt of
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ADOPTED 12-2-04
Page 24
such request, provide the 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 the Developer to satisfy such objections so that the City
would sign the certificate. Upon the Developer satisfying the City's
objections, then the 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.
5. If the City refuses to execute the certificate and the Developer does
not agree with the objections set forth in the City's statement, then
the Developer may invoke the arbitration procedures set forth 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.
6. 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 the
Developer who shall record the certificate in the public records of
Pinellas County, Florida, and pay the cost of such recording.
7.04 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.
7.05 Construction Sequencing and Staging Area. Subject to the limitations
caused by the City's construction of the Beach Walk Improvements, the
Developer shall construct the Garage Access 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.
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 I
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
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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.
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, or
which are alleged to have arisen out of, in connection with, or by
reason of, the performance of such services.
2. The City shall indemnify, defend and hold harmless the Developer,
its officers and employees from any and all liabilities, damages I
costs, penalties, judgments, claims, demands, losses, or expenses
(including, but not limited to, actual attorneys' fees and engineering
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fees) arising from or attributable to any breach by the City, as the
case may be, of any representations or warranties contained in
Section 10.01, or covenants contained in Section 10.02.
3. The City's indemnity obligations under this Section 10.02 shall
survive the earlier of the Termination Date or the Expiration Date,
but shall only apply to occurrences, acts or omissions that arise on
or before the earlier of the Termination Date or the Expiration Date.
The City's indemnity hereunder is not and shall not be interpreted
as an insuring agreement between or among the parties to this
Agreement, but is in addition to and not limited by any insurance
policy provided that said obligation shall not be greater than that
permitted and shall be limited by the provisions of Section 768.28,
Florida Statutes, or any successor statute thereto.
8.03. Limitation of Indemnification. Notwithstanding anything to the contrary
contained herein, with respect to the indemnification obligations of the Developer
(as set forth in Section 8.01) and the City (as set forth in Section 8.02), the
following shall apply:
1. The indemnifying party shall not be responsible for damages that
could have been, but were not, mitigated by the indemnified party;
2. The indemnifying party shall not be responsible for that portion of
any damages caused by the negligent or willful acts or omissions of
the indemnified party; and
3. There shall be no obligation to indemnify hereunder in the event
that the indemnified party (1) shall have effected a settlement of
any claim without the prior written consent of the indemnifying
party, or (2) shall not have subrogated the indemnifying party to the
indemnified party's rights against any third party by an assignment
to the indemnifying party of any cause or action against such third
party.
ARTICLE 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF
THE DEVELOPER.
9.01. Representations and Warranties. The Developer represents and
warrants to the City that each of the following statements is currently true and
accurate and agrees the City may rely upon each of the following statements:
1 . The Developer is a Florida Limited Liability Company duly
organized and validly existing under the laws of the State of Florida,
has all requisite power and authority to carry on its business as now
conducted, to own or hold its properties and to enter into and
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ADOPTED 12-2-04
Page 27
perform its obligations hereunder and under each document or
instrument contemplated by this Agreement to which it is or will be
a party, is qualified to do business in the State of Florida, and has
consented to service of process upon a designated agent for
service of process in the State of Florida.
2. This Agreement and, to the extent such documents presently exist
in a form accepted by the City and the Developer, each document
contemplated or required by this Agreement to which the Developer
is or will be a party have been duly authorized by all necessary
action on the part of, and have been or will be duly executed and
delivered by, the Developer, and neither the execution and delivery
thereof, nor compliance with the terms and provisions thereof or
hereof: (i) requires the approval and consent of any other party,
except such as have been duly obtained or as are specifically noted
herein, (ii) contravenes any existing law, judgment, governmental
rule, regulation or order applicable to or binding on the Developer,
(iii) contravenes or results in any breach of, default under or, other
than as contemplated by this Agreement, results in the creation of
any lien or encumbrance upon any property of the Developer under
any indenture, mortgage, deed of trust, bank loan or credit
agreement, the Developer's Articles of Incorporation, 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.
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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 Tampa, 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 or
Hillsborough Counties.
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.
10. The Developer is the holder of fee simple title to the Project Site
with the exception of the property to be vacated.
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.
2. During each year that this Agreement and the obligations of the
Developer under this Agreement shall be in effect I 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.
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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 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.
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 retains a
controlling interest in the consolidated or merged corporation I 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 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. Intentionally Deleted.
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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 Project Completion
Date.
ARTICLE 10. REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE CITY.
10.01. Representations and Warranties. The City represents and warrants to
the Developer that each of the following statements is currently true and accurate
and agrees that the Developer may rely on each of the following statements:
1. The City is a validly existing body corporate and politic of the State
of Florida, has all requisite corporate power and authority to carry
on its business as now conducted and to perform its obligations
hereunder and under each document or instrument contemplated
by this Agreement to which it is or will be a party.
2. This Agreement and, to the extent such documents presently exist
in a form accepted by the City and the Developer, each document
contemplated or required by this Agreement to which the City is or
will be a party have been duly authorized by all necessary action on
the part of, and have been or will be duly executed and delivered
by, the City, and neither the execution and delivery thereof, nor
compliance with the terms and provisions thereof or hereof (i)
requires the approval and consent of any other party, except such
as have been duly obtained or as are specifically noted herein, (ii)
contravenes any existing law, judgment, governmental rule,
regulation or order applicable to or binding on the City, (iii)
contravenes or results in any breach of, or default under or, other
than as contemplated by this Agreement, results in the creation of
any lien or encumbrance upon any property of the City under any
indenture, mortgage, deed of trust, bank loan or credit agreement,
applicable ordinances, resolutions or, on the date of this
Agreement, any other agreement or instrument to which the City is
a party, specifically including any covenants of any bonds, notes, or
other forms of indebtedness of the City outstanding on the Effective
Date.
3. This Agreement and, to the extent such documents presently exist
in a form accepted by the City and the Developer, each document
contemplated or required by this Agreement to which the City is or
will be a party constitute I or when entered into will constitute, legal,
valid and binding obligations of the City enforceable against the
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Second Amended Development Agreement
ADOPTED 12-2-04
Page 31
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 I 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 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
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Second Amended Development Agreement
ADOPTED 12-2-04
Page 32
time is likely to adversely affect, the City's financial capability to
carry out its responsibilities contemplated hereby.
ARTICLE 11. CONDITIONS PRECEDENT.
11.01. 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 5.04(1) hereof.
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 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
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ADOPTED 12-2-04
Page 33
2.
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 one hundred twenty (120) days after the
commencement of any proceeding by or against the
Developer seeking any reorganization I arrangement,
composition, readjustment, Iiquidation, dissolution or similar
relief under any present or future statute I law or regulation,
such proceeding shall not have been dismissed or otherwise
terminated, or if, within one hundred twenty (120) 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
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 or such default is
not capable of cure or the Developer ceases its good faith
efforts to cure such default 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.
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.
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ADOPTED 12-2-04
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3. Subject to the rights of the Project Lender, if the City elects under
Section 6.03 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 under Section 6.03, 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
and event of default by the City under this Subsection 12.02.
2.
a.
If an event of default by the City described in 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
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Second Amended Development Agreement
ADOPTED 12-2-04
Page 35
default by the City was willful and committed in bad faith with
reckless disregard for the rights of the Developer.
c. Any attempt by the Developer to pursue any of the remedies
referred to in paragraphs (a) and (b) above will not be
deemed an exclusive election of remedy or waiver of the
Developer's right to pursue any other remedy to which it
might be entitled.
d. Any time periods or deadlines provided in this Agreement
shall be tolled or extended by the amount of time to cure any
event of default hereunder if such event affects the
Developer's or City's ability to perform by such deadline or
the expiration of such period.
12.03. Obligations, Rights and Remedies Cumulative. Unless specifically
stated herein to the contrary, the specified rights and remedies to which either
the City or the Developer are entitled under this Agreement are not exclusive and
are intended to be in addition to any other remedies or means of redress to which
the City or the Developer may lawfully be entitled and are not specifically
prohibited by this Agreement. The suspension of, or delay in, the performance of
its obligations by the Developer while the City shall at such time be in default of
their obligations hereunder shall not be deemed to be an "event of default." The
suspension of, or delay in, the performance of the obligations by the City while
the Developer shall at such time be in default of its obligations hereunder shall
not be deemed to be an "event of default" by the City.
12.04. Non-Action on Failure to Observe Provisions of this Agreement. The
failure of the City or the Developer to promptly or continually insist upon strict
performance of any term, covenant, condition or provision of this Agreement, or
any Exhibit hereto, or any other agreement, instrument or document of whatever
form or nature contemplated hereby shall not be deemed a waiver of any right or
remedy that the City or the Developer may have, and shall not be deemed a
waiver of a subsequent default or nonperformance of such term, covenant,
condition or provision.
12.05. Termination.
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,
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ADOPTED 12-2-04
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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 I 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, this Agreement may be terminated as provided in
subsection (3) of this section by the Developer after the occurrence
of any of the following events or conditions:
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 1 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.
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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 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.
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
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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
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. Appointment of Arbitrators.
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1. a.
2.
Unless accelerated arbitration as provided in Section 14.08
hereof is invoked, any party invoking arbitration herewith
shall, within five (5) days after giving notice of impasse in the
dispute resolution process or upon following the expiration of
the time period for such dispute resolution occurrence of the
event permitting arbitration to be invoked, give written notice
to that effect to the other parties, and shall in such notice
appoint a disinterested person who is on the list of qualified
arbitrators maintained by the American Arbitration
Association or a disinterested person not on such list to
whom an objection is not made by any other party hereto
within five (5) days of receipt of the notice of such
appointment as the arbitrator or, if more than one (1)
arbitrator is to be appointed, as one of the arbitrators.
b. Within ten (10) days after receipt of the notice described in
paragraph (1), the other parties shall by written notice to the
original party acknowledge that arbitration has been invoked
as permitted by this Agreement, and shall either accept and
approve the appointment of such individual set forth in the
original notice as a sole arbitrator or shall appoint one (1)
disinterested person per party of recognized competence in
such field as an arbitrator.
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
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third arbitrator by the office in or for the State of Florida (or if
more than one office, the office located closest to the City) of
the American Arbitration Association (or any successor
organization thereto), or, in its absence, refusal, failure or
inability to act, request such appointment of such arbitrator
by the United States District Court for the Middle District of
Florida (which request shall be filed in the division of that
court responsible for the geographic area including the City),
or as otherwise provided in Chapter 682, Florida Statutes,
known and referred to as the Florida Arbitration Act, as
amended.
14.03. General Procedures. In any arbitration proceeding under this part, those
parties appointing arbitrators shall each be fully entitled to present evidence and
argument to the sole arbitrator or panel of arbitrators. The arbitrator or panel of
arbitrators shall only interpret and apply the terms of this Agreement and may not
change any such terms, or deprive any party to this Agreement of any right or
remedy expressed or implied in this Agreement, or award any damages or other
compensation to any party hereto. The arbitration proceedings shall follow the
rules and procedures of the American Arbitration Association (or any successor
organization thereto) unless specifically modified by this Agreement, or as then
agreed to by the parties hereto.
14.04. Majority Rule. In any arbitration proceeding under this part, the
determination of the majority of the panel of arbitrators, or of the sole arbitrator if
only one (1) arbitrator is used, shall be conclusive upon the parties and judgment
upon the same may be entered in any court having jurisdiction thereof. The
arbitrator or panel of arbitrators shall give written notice to the parties stating his
or their determination within thirty (30) days after the conclusion of the hearing or
final submission of all evidence or argument.
14.05. Replacement of Arbitrator. In the event of the failure, refusal or inability
of any arbitrator to serve as such, promptly upon such determination being made
by the affected arbitrator, the affected arbitrator shall give notice to the other two
(2) arbitrators (if applicable) and to the parties hereto, and then a new arbitrator
shall be promptly appointed as a replacement, which appointment shall be made
by the party or the arbitrators who appointed the affected arbitrator in the same
manner as provided for in the original appointment of the affected arbitrator in
Section 14.02 hereof.
14.06. Decision of Arbitrators.
1. If any decision reached by arbitration as provided in this part
requires performance by the Developer, the Developer covenants
and agrees to comply with any decision of the arbitrator(s) promptly
after the date of receipt by the Developer of such decision, and to
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continue such performance to completion with due diligence and in
good faith.
2. If any such decision requires performance by the City, the City
covenants and agrees to comply promptly with any decision
reached by arbitrators) promptly after the date of receipt by the City
of such decision, and to continue such performance to completion
with due diligence and in good faith.
3. Nothing in this part, nor in any arbitration decision rendered under
this part, shall be construed to require any payment by the City to
the Developer not otherwise provided for herein.
14.07. Expense of Arbitration. The expenses of any arbitration proceeding
pursuant to this part shall be borne equally by the parties to such proceeding,
provided, however, for the purpose of this Section 14.07, "expenses" shall
include the fees and expenses of the arbitrators and the American Arbitration
Association with respect to such proceeding, but shall not include attorneys' fees
or expert witness fees, or any costs incurred by attorneys or expert witnesses,
unless (and to the extent) agreed to by the parties to such proceeding, which in
the absence of such Agreement shall be the responsibility of the party incurring
such fees or costs.
14.08. Accelerated Arbitration.
1.
a.
If any of the parties to any arbitration proceeding under this
part determines the matter for arbitration should be decided
on an expedited basis, then after an initial election to invoke
arbitration pursuant to Section 14.02 hereof has been made,
either party to such proceeding may invoke accelerated
arbitration by giving notice thereof to the other parties no
later than three (3) days after arbitration has been initially
invoked and the other parties do not object within three (3)
days thereafter.
b. Accelerated arbitration, for purposes of this Section 14.08,
shall be accomplished by either party notifying the American
Arbitration Association (or any successor organization
thereto) that the parties have agreed to a single arbitrator,
qualified to decide the matter for arbitration, to be appointed
by the American Arbitration Association (or any successor
organization thereto) with the consent of the parties to such
proceeding within three (3) days after receipt of the request
and to decide such matter within five (5) days after such
appointment.
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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 I 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 I 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 a 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 lay, unavailability of materials after timely ordering of same,
epidemics, quarantine restrictions, freight embargoes, fire,
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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 I
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 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 I 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.
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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 if
the same is practicable and economically viable, 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. The Developer
shall have sufficient time to adjust insurance claims and to obtain a
replacement construction loan if the original lender does not make
insurance proceeds available for rebuilding.
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, which for this purpose shall include the time
necessary to adjust insurance claims and obtain a replacement construction loan
if the original lender does not make insurance proceeds available for rebuilding.
17.03. Project Insurance Proceeds.
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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 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.
17.06. Approvals. The provisions of this Article 17 shall be subject to (i) the
ability to obtain the approval of all property owners within the project whose
approval is required, (ii) any lender whose approval is required, as well as (iii)
having received adequate proceeds of insurance to fund redevelopment.
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 (hereinafter referred to as the
"assignee"), to the extent of the sale, conveyance,
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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. In connection with any assignment or sale of a portion or all
of the Developer's right, title, interest and obligations in and
to the Project, if the assignee assumes the Developer's
obligations hereunder the Developer shall be released from
liability for the obligations or liabilities 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, general
partnership, or joint venture, in which the Developer is the
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 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.
2. City's Riaht to Assian Riahts. The Developer agrees that the City
shall have the unqualified right to assign its rights under Section
5.04 and 6.03 of this Agreement to any person, subject only to
applicable laws in regard to the disposition of an interest in real
property.
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
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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:
Beachwalk Resort, LCC
2905 Bayshore Boulevard, Suite 202
Tampa, FL 34629
Attn: Brian Taub
City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
with copies to:
with copies to:
Jeffrey T. Shear, Esquire
Ruden, McClosky
401 East Jackson Street, Suite 2700
Tampa, FL 33602
Pamela K. Akin, Esquire
Clearwater City Attorney
112 S. Osceola Avenue
Clearwater, FL 33756
2. Notices given by courier service or by hand delivery shall be
effective upon delivery and notices given by mail shall be effective
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 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.
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1. For purposes of any suit action, or other proceeding arising out of
or relating to this Agreement, the parties hereto do acknowledge,
consent, and agree that venue thereof is Pinellas County, Florida.
2. Each party to this Agreement hereby submits to the jurisdiction of
the State of Florida, Pinellas County and the courts thereof and to
the jurisdiction of the United States District Court for the Middle
District of Florida, for the purposes of any suit, action, or other
proceeding arising out of or relating to this Agreement and hereby
agrees not to assert by way of a motion as a defense or otherwise
that such action is brought in an inconvenient forum or that the
venue of such action is improper or that the subject matter thereof
may not be enforced in or by such courts.
3. If at any time during the term of this Agreement the Developer is
not a resident of the State of Florida or has no office, employee,
City or general partner thereof available for service of process as a
resident of the State of Florida, or if any permitted assignee thereof
shall be a foreign corporation, partnership or other entity or shall
have no officer, employee, agent, or general partner available for
service of process in the State of Florida, the Developer hereby
designates the Secretary of State, State of Florida, its agent for the
service of process in any court action between it and the City, or
both, arising out of or relating to this Agreement and such service
shall be made as provided by the laws of the State of Florida for
service upon a non- resident; provided, however, that at the time of
service on the Florida Secretary of State, a copy of such service
shall be delivered to the Developer at the address for notices as
provided in 18.03.
18.06. Estoppel Certificates. The Developer and the City shall at any time and
from time to time, upon not less than ten (10) days prior notice by another
party hereto, execute, acknowledge and deliver to the other parties a
statement in recordable form certifying that this Agreement has not been
modified and is in full force and effect (or if there have been modifications
that the said Agreement as modified is in full force and effect and setting
forth a notation of such modifications), and that to the knowledge of such
party, neither it nor any other party is then in default hereof (or if another
party is then in default hereof, stating the nature and details of such
default), it being intended that any such statement delivered pursuant to
this Section 18.06 may be relied upon by any prospective purchaser,
mortgagee, successor, assignee of any mortgage or assignee of the
respective interest in the Project, if any, of any party made in accordance
with the provisions of this Agreement.
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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 pari
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, or any proposed improvement,
use, disposition, lease, conveyance or acquisition of any or all of the
Project Site.
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
TPA:340249: 1 0
Second Amended Development Agreement
ADOPTED 12-2-04
Page 50
"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 general obligation or indebtedness of
the City, or a pledge of the ad valorem taxing power 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 under takings
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
TPA:340249:10
Second Amended Development Agreement
ADOPTED 12-2-04
Page 51
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 March 13,
2011.
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.
[SIGNATURES BEGIN ON NEXT PAGE]
TPA:340249:10
Second Amended Development Agreement
ADOPTED 12-2-04
Page 52
IN WITNESS WHEREOF, the parties hereto have set their hands and
their respective seals affixed as of the date set forth in the first paragraph of this
Agreement.
Att~j Li.
By~ / ...... - - -: ~. .0.. .
. City rlh,-.. -
- -' - ~
- .-
-. ... " -." ':'."
AP~f.Oy..ed 40 .for. m. . .;-,.:.,
]JjL'. ...
Pamela K. Akin
City Attorney
OF CLEARWATER,
STATE OF FLORIDA )
)
COUNTY OF PINELLAS )
~ The foregoing instrument was acknowledged before me this :1,..t;( day
of ~g)L~ ,2002 by Brian Aungst and Cynthia 0., Mayor and City
Clerk, respectively, for the City of Clearwater, Florida, on behalf of the City.
UJ>>1-
re of Notary Public
r:;e~ I ~ '" Li)Jil' It
Printe ,typed or stamp
My Commission Expires:
~ a\. Regina M. OeWllt
. ~ . My CommIIIion 00315373
\;01".'.1 Expires MIy 02. 2008
[SIGNATURES CONTINUED ON NEXT PAGE]
TPA:340249:10
Second Amended Development Agreement
ADOPTED 12-2-04
Page 53
Beachwalk Resort, LLC,a Florida
limited liability company
By: Clearwater Beach Resort, LLC, a
Florida limited liability company,
Managing Member
~~~st:fM~ b )Ij~
, / -
STATE OF FLORIDA )
)
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me this 9 ye( day of
lli(lD~ , 2004 by Brian Taub as Managing Member of Clearwater Beach Resort,
LLC, a Florida limited liability company, Managing Member of Beachwalk Resort, LLC,
a Florid imited liability company, on behalf of Beachwalk Resort, LLC.
By:
i ature of Notary Public
j<f~I~Q H. u.d.-Urt+-
Print ,typed or stamp
My Commission Expires:
~J\ RegIne M. DeWItt
. ~ j My CommIulon 00315373
'\:., ~ ExpIres MIy 02. 2008
Exhibit A
CONTROLLED PROPERTY LEGAL DESCRIPTION
A parcel of land lying in Section 8, Township 29, Range 15 East, Pinellas County,
Florida, being more particularly described as follows:
Lot 57, Lot 104, the South 20.00 feet of Lot 56, and the South 20.00 feet of Lot 103 of
the L1oyd-White-Skinner Subdivision, as recorded in Plat Book 13, Page 12, of the public
records of Pinellas County, Florida.
Together with Lot 105, Lot 106, and the North one-half of Lot 107 of the L1oyd-White-
Skinner Subdivision, as recorded in Plat Book 13, Page 12, of the public records of
Pinellas County, Florida.
Together with Lot 58 and Lot 59 of the L1oyd-White-Skinner Subdivision, as recorded in
Plat Book 13, Page 12, of the public records of Pinellas County, Florida.
Exhibit B
Consisting of 22 pages
Seashell Project Description - as dermed in presentations and applications
The properties are developed with The Glass House Motel at 229 South Gulfview Boulevard,
The Beach Place Motel at 301 South Gulfview Boulevard, and a single family house and out
buildings at 300 Coronado Drive abutting the Beach Place Motel and operated under a common
ownership. The proposed project assembles these parcels into a single development site, which
incorporates the vacated Third Street right-of-way. Under the terms of the proposed development
agreement, Gulfview Boulevard is proposed to be rebuilt to the west; this parcel seeks rights to
use the eastern ~ of the vacated Gulfview Boulevard right-of-way.
Surrounding land uses are: Gulfview Boulevard to the west, a single family unit and the Spyglass
Motel to the north, Legends Steakhouse to the south and Coronado Drive to the east. Across
Gulfview Boulevard, there is a public parking lot abutting the Gulf of Mexico.
The existing buildings consist of two hotel which contain 66 units. The existing properties
contain several structures, all of which were built between 1941 and 1956.
Redevelopment is proposed for these obsolete structures. The proposed use is a 250-unit full
service hotel with banquet and meeting rooms, restaurant and retail/ beach club facilities, health
club and spa facilities, and a 750-space (min.) parking garage which will serve both hotel uses,
and the general public. The proposed development is the catalyst for the Beach Walk
Improvements outlined in Beach By Design. Beach Walk will provide landscaping, pedestrian
and bicycle routes and a limited amount of surface public parking, as well as a relocated
travel way for vehicles. This travelway will be built in a curvilinear design and will include
"traffic calming" features. Public parking will be replaced in the parking garage to be built as
part of the hotel. The public and hotel guests may access the beach by a pedestrian overpass.
TPA:345212:1
GENERAL NOTES
o
KEYNOTES
o
6.
KEYNOTES
6.
LEGEND
"lMll'NaIlG.
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PARKING W.JNT
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GROUND FLOOR PLAN
PROPOSED HYATT
CLEARWATER BEACH RESORT AND SPA
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ARCHITECTS
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09.26.2004
A300
GENERAL NOTES
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LEGEND
1ST FLOOR PLAN
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CLEARWATER BEACH RESORT AND SPA
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COLLMAN&KARSKV
ARCHITECTS
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09.26.2004
A305
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I' VAlET PARKIN(,
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8TH FLOOR PLAN
PROP08ED MY"'n
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COLLMAN&KARSKV
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09.26.2004
A306
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GENERAL NOTE5
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6.
KEYNOTE5
6.
LEGEND
7TH FLOOR PLAN
PROPOSED HYATT
CLEARWATER BEACH RESORT AND SPA
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09.26.2004
A307
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I
~ IlT~ FLOOR PLAN
- "I,,...r..ff
GENERAL NOTES
o
KEYNOTES
o
u
KEYNOTES
u
LEGEND
8TH FLOOR PLAN
PAOP08I!D HYATT
CLEARWATER BEACH RESORT AND SPA
l&DIlWAftR, ...
J=L
COLLMAN&KARSKV
ARCHITECTS
.30 NOOlI'l..AZA~.!UlCOO """A.F\..1w.' 'lUE>l93I3&UXlO o FA>> l/I3lB&.t,OXlO
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04034
09..26.2004
A308
I
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I """"i",,.'4 I
GENERAL NOTES
o
o
KEYNOTES
6.
6.
KEYNOTES
LEGEND
9TH FLOOR PLAN
PROPOSED HVAn
CLEARWATER BEACH RESORT AND SPA
a.&MW~T1R.f\.
J=,,--
COLLMAN&KARSKV
ARCHITECTS
.t3OMOOlI\.AZAPlCWf,EUreDCl"INi'A.R..3.363-"YlXEI~'~A>>l83lll&ol.OXXl
tmd11~tIuIl......-~~,.......~-klnkr.LO'O'i
04034
-.
09.26.2004
A309
C'l
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i -.J IOT~ FLOOR PLAN i
1 ,""j'....'.. I
GENERAL NOTES
o
KEYNOTES
o
/::,
KEYNOTES
/::,
LEGEND
10TH FLOOR PLAN
PROP08I5D HYATT
CLEARWATER BEACH RESORT AND SPA
~AT&l R..
J='L-
COLLMAN&KARSKV
ARCHITECTS
.30MOGlF\AlAPlQ\'f.am:1OO.11M'A.FL~''IOC:' ~"AP~m
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.........
04034
M_
09.26.2004
A310
I
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!
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--'{SCAli I"" ol'-ll'
GENERAL NOTES
o
KETNOTES
o
f::.,
KETNOTES
[:,
LEGEND
11TH FLOOR PLAN
PROPOSeD HVAn
CLEARWATER BEACH RESORT AND SPA
J=,,-
COLLMAN&KARSKV
ARCHITECTS
"30 MOa!FUZAPlI:WT.am:.QO.t~A.R..~ o'lOJ:>lllllll8.UXO.I'A>> ~1OO
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0403-4
09.26.2004
A311
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""'~"""
GENERAL NOTES
o
KEYNOTES
o
[',
KEYNOTES
[',
LEGEND
12TH FLOOR PLAN
PROPOSED HYATT
CLEARWATER BEACH RESORT AND SPA
CUNlW'A1Wl, I'\.
J='L-
COLLMAN&KARSKV
ARCHITECTS
.QONOGPU.Z.l~.EUlEIOO "~A.FL33d4. \ICIF:Il8lIlllUXlO . Pi>> r&:IlI84Om
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--
04034
09.26.2004
A312
(;;J (OJ
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GENERAL NOTES
o
KEYNOTES
o
{\,
KEYNOTES
{\,
LEGEND
13TH FLOOR PLAN
PROPOSED HYAn
CLEARWATER BEACH RESORT AND SPA
J=L
COLLMAN&KARSKV
ARCHITECTS
.3OI/1lOGIUlAPIQ'O.QJlEOO .1N,PA.R.. ~. VOQ:o ra)ll6lJQOO .f'A>> ra3l!l84Om
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04034
09.26.2004
A313
GENERAL NOTES
o
KEYNOT ES
o
D
KEYNOTES
D
LEGEND
14TH FLOOR PLAN
PROP08eD HYATT
CLEARWATER BEACH RESORT AND SPA
GLaMWA'- I'L
J=L
COLLMAN&"KARSKV
ARCHITECTS
4:10 MOOlIUZ.APll.Wf. 6.JfE 00. '~A.FI.. ~. vmB t838&UXX1.t'A1I/~;t)()
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04034
M_
09.26.2004
A314
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_~.Vll.'.r." ICTES
GENERAL NOTES
EXTERIOR ELEVATIONS
PROP08!D MYAn
CLEARWATER BEACH RESORT AND SPA
---,",,="L-
COLLMAN&KARSKV
ARCHITECTS
43CJMOOlR.AlAPl(WT.Q.flEOO"~"A.. ~. ~ rB3l8Elo1.2OOO'''A>> fil3M.tDJOO
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09.26.2004
MOO
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_!oUlE>I",,'.f-4f tIOTB
GENERAL NOTES
PROPOSED HYATT
CLEARWATER BEACH RESORT AND SPA
EXTERIOR ELEVATIONS
a.uRWA1IIl.fL
J=L
COLLMAN&KARSKV
ARCHITECTS
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09.26.2004
A401
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_SUlE.lI1Ioo.r..(l'
GENERAL NOTES
EXTERIOR ELEVATIONS
PROP08B) HYATT
CLEARWATER BEACH RESORT AND SPA
J=L
CUAAWA1W\ ...
COLLMAN&KARSKV
ARCHITECTS
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04034
09.26.2004
A402
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01 NORTH ELEVATION
_~'U.I"".~4' IlOTES
GENERAL NOTES
PROPOSED My",n
CLEARWATER BEACH RESORT AND SPA
EXTERIOR ELEVATIONS
.""...
J=L
COLLMAN&KARSK V
ARCHITECTS
A3OINOOlI\AZ.&PICWT.am:IXl.'INPA.R..~'VCX8~.~b~XXl
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04034
09.26.200-4
M03
GENERAL NOTE5
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_5Ul.E,I,....t-(/
BUILDING SECTIONS
PROPOSED HVAn
CLEARWATER BEACH RESORT AND SPA
~ATIIl,'"
J=L
COLLMAN&KARSKV
ARCHITECTS
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04034
09.26.2004
A500
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01 BUILDING L~GITUDINAL SECTION
_5C.Ali.Iillo',f-/f NOTES
GENERAL NOTES
BUILDING SECTIONS
PROPOSED HYAn
CLEARWATER BEACH RESORT AND SPA
CUlNIWA_1'L
J='"L
COLLMANC;rKARSKV
ARCHITECTS
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PRELIMINARY PROJECT SCHEDULE
SEPTEMBER 24.2Q04
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DESIGN AND DOCUNlENTAll0N MCIII 9127104 :
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Design COOSIJllant Selecllm Man 9J21104 :
BegIn Design Frl10115r04 !
PJllF1nlngam Schemallc Phe1l8 Sa! 10116104 i
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Construction AdmInlslrallon Sat 7/16i05 , FrI 612!l107
CONSTRUCTION PRICING 111\1 12116104 i Frl8I121U5
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Exhibit E
DECLARATION OF COVENANTS AND RESTRICTIONS
THIS DECLARATION OF COVENANTS AND RESTRICTIONS is made as of the
day of ,2004 by Beachwalk Resort, LLC.
Beachwalk Resort, LLC 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 use and operation of the Real Property.
The City of Clearwater has granted, by City Commission Resolution passed
and approved on , Beachwalk Resort, LLC's application for an allocation
of bonus resort units pursuant to the provisions of the designation of Clearwater Beach as a
Community Redevelopment Districts subject to compliance with the requirements of the
designation of Clearwater Beach as a Community Redevelopment District. Beachwalk Resort,
LLC 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 ofthe 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
Beachwalk Resort, LLC and other good and valuable consideration, the sufficiency of which is
hereby acknowledged, Beahwalk Resort, LLC hereby declares, covenants and agrees as follows:
1. Benefit and Enforcement. These covenants and restrictions are made for the
benefit of Beachwalk Resort, LLC 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 by the City Commission of the City of Clearwater.
2. Covenant to Prepare and Implement a Trip Generation Management Program.
Beachwalk Resort, LLC hereby covenants and agrees to the development, use and operation of
the Real Property in accordance with the provisions ofthis Declaration.
TPA:345813:1
Exhibit E
2.1 Trip Generation Management Program. Beachwalk Resort, LLC shall
prepare a Trip Generation Management Program which includes, at a minimum, the
progr~ elements which are set out in Exhibit 2 which is attached hereto and incorporated
herein.
2.2 Implementation. Beachwalk Resort, LLC shall take all necessary and
appropriate steps to implement the approved Trip Generation Management Program and
the selected management strategies.
3.
recording.
Effective Date. This Declaration shall become effective immediately upon its
4. Governing Law. This Declaration shall be construed in accordance with and
governed by the laws of the State of Florida.
5. Recording. This Declaration shall be recorded in the chain of title of the Real
Property with the Clerk of the Courts of Pin ell as County, Florida.
6. Attornevs Fees. Beachwalk Resort, LLC 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 these
Declarations and the City obtains relief, whether by agreement of the parties or through order of
the court.
7. Severability. If any provision, or part thereof, of this Declaration or the application
of this Declaration to any person or circumstance will be or is declared to any extent to be invalid
or unenforceable, the remainder of this Declaration, or the application of such provision or
portion thereof to any person or circumstance, shall not be affected thereby, and each and every
other provision ofthis Declaration shall be valid and enforceable to the fullest extent permitted by
law.
IN WITNESS WHEREOF, Beachwalk Resort, LLC has caused this Declaration of
Covenants and Restrictions to be executed this day of ,2004.
Signed and sealed and delivered
in the presence of:
Beachwalk Resort, LLC, a Florida limited
liability company
~~
By: Clearwater Beach Resort, LLC, a
Florida limited liability company,
Managing Member
~
Bri ,
. . - anaging ~ember
TPA:345813: 1
Exhibit E
STATE OF FLORIDA )
)
COUNTY OF PINELLAS )
This instrument was acknowledged before me this ~ day of 21 ~ 2004 by Brian
Taub as Managing Member of Clearwater Seashell Resort, LLC, a Florida limited liability
company, Managing Member of Beachwalk Resort, LLC, a Florida limited liability company, on
behalf of Beachwalk Resort, LLC.
~-,^,~A. lJ'f.~
otary Public
State of Florida
My commission expires:
...."..':.~"""t'. L8SA MIELKE
?~;j):.\ MY COMMISSION # DO 250699
l' .. EXPIRES: October 31.2007
'~iif., : . Bondecl Thru Notary Public Und8lWllte1l
TPA:345813:1
Exhibit E
EXHIBIT 2
Trip Generation Management Program
1. Prior to issuance of a Certificate of Occupancy for the Seashell Resort, 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 Seashell Resort, 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 Seashell Resort when a
hurricane watch is issued for Clearwater.
TPA:345813:1
EXHIBIT F
COVENANT REGARDING HURRICANE WATCH CLOSURE & USE &
OCCUPANCY OF RESORT HOTEL
DECLARATION OF COVENANTS AND RESTRICTIONS
THIS DECLARATION OF COVENANTS AND RESTRICTIONS
("Declaration") is made as of the day of , 2004, by
Beachwalk Resort, LLC (individually and collectively, "Developer").
Developer is the owner of fee simple title to the real property described in
Schedule 1 attached hereto and made a part hereof (hereinafter, the ("Real
Property"). The City of Clearwater, Florida (the "City"), has amended its
Comprehensive Plan to designate Clearwater Beach as a Community
Redevelopment District pursuant to the Pinellas County Planning Council Rules
in order to implement the provisions of Beach By Design, a plan for the
revitalization of Clearwater Beach.
The designation of Clearwater Beach as a Community Redevelopment
District (the "Designation") provides for the allocation of bonus resort hotel units
("Bonus Units") as an incentive for the development of destination quality hotel
resorts with a full complement of resort amenities. Pursuant to the Designation,
the allocation of Bonus Units is subject to compliance with a series of
performance standards, including a requirement that resorts containing a hotel
developed with Bonus Units ("Hotel") shall be closed and all Hotel guests
evacuated from such resorts as soon as practicable after the National Hurricane
Center posts a hurricane watch that includes Clearwater Beach. The purpose of
such evacuation is to ensure that such a Hotel is evacuated in advance of the
period of time when a hurricane evacuation would be expected in advance of the
approach of hurricane force winds.
The City has granted, by City Council Resolution ,
passed and approved on Developer's application for Bonus Units
pursuant to the Designation, subject to Developer's compliance with the
requirements of the Designation. Developer desires for itself, and its successors
and assigns, as owner, to establish certain rights, duties, obligations and
responsibilities with respect to the use and operation of the Real Property in
accordance with the terms and conditions of the allocation of the Bonus Units to
the City and the Designation, which rights, duties, obligations and responsibilities
shall be binding on any and all successors and assigns and will run with the title
to the Real Property.
THEREFORE, in consideration of the covenants and restrictions herein
set forth and to be observed and performed, and in further consideration of the
allocation of Bonus Units to Developer, and other good and valuable
TPA:345468:1
TPA:345468:1
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 and shall be enforceable on behalf of said
residents by the City Council of the City.
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 provisionsofthis---
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 and nine (209) units,
which is the number of hotel units allocated to
DEVELOPER, shall be used solely for transient
occupancy of thirty (30) days or less, 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. No hotel unit
shall be used as a primary or permanent residence.
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. No hotel unit shall be used as a
primary or permanent residence.
2.1.3 As used herein, the terms ''transient occupancy,"
"public lodging establishment," "hotel," "resort
condominium," and "operator" shall have the meaning
given to such terms in Chapter 509, Part I, Florida
Statutes (2004).
2.2 Closure of Imorovements and Evacuation. The Hotel
developed on the Real Property shall be closed as soon as
practicable upon the issuance of a hurricane watch by the
National Hurricane Center, which hurricane watch includes
Clearwater Beach, and all Hotel guests, visitors and
employees other than emergency and security personnel
required to protect the resort, shall be evacuated from the
Hotel as soon as practicable following 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 in advance of the issuance
of a forecast of probable landfall.
3 Effective Date. This Declaration shall become effective upon issuance of
all building-permits required to build the project of which theHotelisapaFt-- ---------
("Projecr) and Developer's commencement of construction of the Project,
as evidence by a Notice of Commencement for the Project. This
Declaration shall expire and terminate automatically if and when the
allocation of Bonus Units to the Developer expires or is terminated.
4 Governina Law. This Declaration shall be construed in accordance with
and governed by the laws of the State of Florida.
5 Recordina. 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 for any expenses,
including reasonable attorneys' fees, which are incurred by the City in the
event that the City determines that it is necessary and appropriate to seek
judicial enforcement of this Declaration and the City obtains relief, whether
by agreement of the parties or through order of a court of competent
jurisdiction.
7 Severabilitv. If any provision, or part thereof, of this Declaration or the
application of this Declaration to any person or circumstance will be or is
declared to any extent to be invalid or unenforceable, the remainder of this
Declaration, or the application of such provision or portion thereof to any
person or circumstance, shall not be affected thereby, and each and every
other provision of this Declaration shall be valid and enforceable to the
fullest extent permitted by law.
[SIGNATURES CONTINUED ON NEXT PAGE]
TPA:345468:1
IN WITNESS WHEREOF, Developer has caused this Declaration to be
executed this , day of 2004.
Signed, sealed and delivered
in the presence of:
BEACHWALK RESORT,
LLC., a Florida limited
liability company
By: Clearwater Beach
. ResOft,-tt;,G,-a--
Florida limited
liability company,
Managing Member
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Member
STATE OF FLORIDA
COUNTY OF PINELLAS
This instrument was acknowledged before me this ~ day of
-n. ~ by Brian Taub, Managing Member of Clearwater Beach Resort,
LLC, a Florida limited liability company, Managing Member of Beachwalk Resort,
LLC, a Florida limited liability company. On behalf of the limited liability company
he is personally known to me or produced as
identification.
AM~~7vt~
Notary Public, State of Florida
My commission expires:
........... LEIBA WaKE
I~~~,,\ MY CoMMISSION, # DD 260699
~ .: I EXPIRES: 0c\0beI' 31, 2001
""',y ,.; Bonded T!lrU NClIIY P\dlIIC lJ/1dBIWI1IIlI
"~"In ,
TPA:345468:1
APPROVALS & PERMIT LIST
. Piling & foundation permit
. Demolition permit
. Site alteration/drainage permit
. Utility relocation permit
. Vacation condition & replat approval
. Building permits package
--- --- - - -0 . -Structural
o Mechanical
o Electrical
o Plumbing
. Beach Improvements permits
o CCCL permit -from Florida Beaches and Shores
o Utility & Drainage permit - with City Engineer & SWFMD approval
o Roadway Permit - approved by City Engineer
o Landscape, Irrigation (graywater) & Lighting - approved by Recreation & Parks
o Pedestrian Bridge, Elevated Walk & Beach Elevator Public Service Facility
(building permit)
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EXHIBIT
t-I
Exhibit I
Appraisal Instructions
Typically, an appraisal of this type will use three appraisal methods, separately
assessing Comparable Sales Value, Income Approach I (Net Present Value of
Future Income Stream), and Replacement Cost. Furthermore, a typical appraisal
is to determine fair market value, as defined under Title XI of the Financial
Institutions: Reform, Recover)' and Enforcement Act of 1989, 12 CFR Part
323.2.f. This definition is: The most probable price which a property should bring
in a competitive and open market under all conditions requisite to a fair sale, the
.. _t:>LJ},~Lf:mct~~U~LeClGh . actiogprudently, knowledgeably and. assuming the price-is-
not affected by undue stimulus. Implicit in this definition is the consummation of a
sale as of a specified date and the passing of title from seller to buyer under
conditions whereby:
1. Buyer and seller are typically motivated;
2. Both parties are well-informed or well-advised, and acting in
what they consider to be their own best interests;
3. A reasonable time is allowed for exposure to the open
market;
4. Payment is made in terms of cash in U. S. dollars or in terms
of financial arrangements comparable thereto;
5. The price represents the normal consideration for the
property sold unaffected by special or creative financing or
sales concessions granted by anyone associated with the
sale.
There is no known open market with comparable garage sales within the Florida
West Coast market area, which precludes use of the Comparable Sales
Approach to valuation. This public garage is to be held as a commercial
condominium and will form one of the components of a mixed-use project
comprised of a hotel, restaurants, retail, and additional parking used by the other
components. The underlying land is therefore owned by the condominium, and a
determination of the value of the portion of land to be attributed to the public
garage would be subjective, at best. If the appraiser were to assume the garage
were free-standing using a Replacement Cost method, the land would have to be
valued at its Highest and Best Use, which would not be as a parking garage.
Therefore, the Replacement Method is not useful for this. appraisal. The
remaining, the Income Approach, is the only reasonable method for
determination of the transaction value under these conditions.
Therefore, for purposes of calculating the fair market value of the public parking
garage to equal to the projected net operating income to be generated from the
Exhih it I
operation percent (6%), said rate exceeding the City's cost of funds at the
Effective Date of this Agreement.
The projected net operating income shall equal the projected gross revenue
minus the operating expenses. The operating expenses shall equal the owner's
actual cost.incurred if the public parking garage has been operated for a period
of one (1) year, or in the event that the garage has been operated for less than
one (1) years, the owner's budget.
2
Exhibit J
THIS INSTRUMENT PREPARED BY
AND WHEN RECORDED, RETURN TO:
Jeffrey T. Shear, Esquire
Ruden, McClosky
401 East Jackson Street, Suite 2700
Tampa, FL 33602
COVENANT OF UNIFIED USE
THIS COVENANT OF UNIFIED USE (the "Agreement") is executed this _ day of
, 2004 (the "Effective Date") by BEACHW ALK RESORT, LLC, a Florida limited
liability company ("Owner").
WITNESSETH
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 , 2004 (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 750 parking spaces (of which not less than 400 shall be public parking spaces),
up to 50,000 square feet of retail space and 250 residential hotel units, 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 of Ten Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby aclmowledged, Owner does hereby
agree that the Property shall be developed and operated as a unified mixed-use project such that the
residential hotel units constructed upon the Property shall be occupied and operated as a single hotel. The
restrictions set forth in the preceding sentence shall survive for a period of ( ) years from
the Effective Date of this Agreement. Nothing in this Agreement shall preclude the purchase and sale of
the residential hotel units and all other components of the mixed use project constructed upon the Property
to separate, unrelated third party owners, so long as the residential hotel units are operated and occupied
as a single hotel throughout the term of this Agreement. Owner agrees that the City shall have the right to
enforce the terms and conditions of this Agreement.
TPA:345820:1
IN WITNESS WHEREOF, the undersigned has executed this Covenant effective the day and year
first above written.
Witnesses:
BEACHWALK RESORTS, LLC, a
Florida limited liability company
By: Clearwater Beach Resort, LLC,
a Florida Limited liability
company, Managing Member
~,/~
, -~--- --. -~ub,
'- . Managing Member
STATEOFF~~ I
COUNTY OF fr-
The foregoing instrument was acknowledged before me this A- day of November, 2004, by Brian
Taub, as Managing Member of CLEARWATER BEACH RESORTS, LLC, a Florida limited liability
company, Managing Member of BEACHW ALK RESORT, LLC, a Florida limited liability company, on
behalf of the limited liability company, who is ~rsonally known to me or has produced
as identification. --- .
X-iA.~ '7r1~
NOTARY PUBLIC IIJ' IV~
Name: Lt- (S^. , VL (e.-.- f-<--
Serial No.
My Commission expires:
~~
f~TA'7;;~ MY COM~~~~~':o 250699
~~j EXPIRES: October 31,2007
'JIr..~.., Bonded ThIll Notary PIbIk: Undetwr1t...
TPA:345820:1
Exhibit K ,.J.
THIS LICENSE AGREEMENT, made and entered into this~day Of~
2004, by and between the CITY OF CLEARWATER, FLORIDA, a Florida municipal
corporation ("Licensor") and BEACHWALK RESORT, LLC ("Licensee"):
WITNESSETH:
WHEREAS, Licensor is the owner of fee simple title to the area described in
Exhibit A attached hereto and incorporated herein;
WHEREAS, Licensee is the developer of a mixed use resort project on
Clearwater Beach which will include at least four hundred (400) parking spaces which
will be open to the public;
WHEREAS, in conjunction with the construction of the mixed use resort project
Licensee is constructing an elevated beach access facility between the parking spaces
which will be open to the public and the public beach ("Elevated Beach Access
Facility");
WHEREAS, the support structures for the Elevated Beach Access Facility on the
gulfside of South Gulfview will be improved for the public convenience and benefit with
public beach service improvements ("Beach Service Facility");
WHEREAS, the Elevated Beach Access Facility and Beach Service Facility wilt
be dedicated to the public;
WHEREAS, the City has determined that it is in the best interests of the residents
of the City of Clearwater to have the Beach Service Facility operated by the Licensee;
WHEREAS, the Licensor is willing to grant a license to Licensee to use and
operate the Beach Service Facility for the purposes stated in this agreement;
NOW, THEREFORE IT IS MUTUALLY AGREED, AS FOLLOWS:
1. License Granted. The City hereby grants a license to use and operate the
Beach Service Facility.
2. Term. The term of the license is fifty (50) years, beginning on the first (1st) day
that beach service facilities are available for use, and ending on the same day, fifty (50)
years thereafter, unless terminated pursuant to paragraph 3 of this License Agreement;
TPA:345823:1
Exhibit K
3. Termination. The license may be cancelled by the Licensor at any time,
ninety (90) days after providing Licensee written notice that the Beach Service Facility is
not being operated in accordance with the requirements of this License Agreement. The
written notice shall specify each and every way in which the Licensee has failed to
operate the Beach Service Facility in accordance with the requirements of this License
Agreement and the Licensee shall have ninety (90) days to reasonably cure such
failures.
4. Exclusive Riqhts. The Licensee shall have the exclusive right to conduct
the activities described in Exhibit "1", which is attached hereto and incorporated herein
in or at the Beach Services Facility.
5. Pavment for Services. The goods and services provided by Licensor shall
be available to the general public, however, the City agrees that the Licensee may
make special provision for payment of services rendered to the public through the
Licensee's resort or other resort properties on Clearwater Beach.
6. Hours of Operation. The Beach Service Facility shall be open at normal
periods of beach use.
7. Operation and Maintenance. Licensee shall be responsible for the
operation and maintenance of the Beach Service Facility including operation,
maintenance, upkeep, repair and replacement. Licensee shall maintain the Beach
Services Facility in good order, condition and repair, reasonable wear and tear
excepted.
8. Use of the Facilitv. Licensee hereby covenants and agrees to make no
unlawful, improper, or offensive use of the Beach Service Facility. Licensee shall not
permit any person other than Licensee to conduct a business in or from the Beach
Service Facility without the written consent of the Licensor.
9. Assiqnment. Licensee hereby covenants not to assign, pledge,
hypothecate the license created herein, in whole or in part, without the prior written
consent of the Licensor except to the hotel operator for which no consent shall be
required. The paragraph is intended to and shall be construed to include a prohibition
on the assignment of the license by operation of law.
10. Taxes. Licensee shall promptly pay any and all taxes, including but not
limited to state sales taxes, occupation license taxes, beverage license and permit fees
due in regard to the operation and use of the Beach Services Facility, but not ad
valorem taxes or personal property taxes, if any, which shall be paid by Licensor.
-2-
TPA:345823:1
Exhibit K
11. Utilities. Licensee agrees to be responsible for all costs related to any
utilities provided to the Beach Services Facility.
12. Modifications to Structure. Licensee is not authorized to make any material
change to the Beach Services Facility without the written approval of the City.
13. Indemnification. Licensee agrees to indemnify and hold Licensor and its
employees harmless from and against any and all claims, demands, causes of action or
lawsuits of whatever kind or character arising out of this License Agreement and/or
performance hereunder. Licensee agrees to investigate, handles, provide defense for
and defend any such claims, demands, causes of action or lawsuits at its sole expense
and agrees to bear all other costs and expenses related thereto, even if the claim,
demand, cause of action or lawsuit is groundless, false or fraudulent.
14. Insurance. Licensee shall at his own expense purchase and maintain
during the term of this License Agreement the following insurance coverages:
[to be inserted at time of execution]
Licensee shall provide the City with copies of all insurance policies required by this
License Agreement.
15. Destruction of Facilitv. In the event that the Beach Service Facility is
destroyed, by whatever means, Licensee shall be required to rebuild the Facility in
accordance with the original plans and specifications. The City agrees that any
insurance proceeds received by the City in conjunction with the destruction of the facility
shall be provided to Licensee for use in rebuilding the Facility.
16. Compliance with Government Requlations. Licensee agrees to comply
with the requirements of all agencies of government.
17. Siqns. All signage shall be in conformance with the City of Clearwater's
Land Development Regulations.
18. Costs of Enforcement. In the event that Licensor incurs any cost to
enforce any of the provisions of this License Agreement, including but not limited to
attorneys fees, Licensee agrees to pay said costs.
-3-
TPA:345823:1
Exhibit K
Mayor
APP'tl;; form
City Attorney's Office
-4-
TPA:345823: 1
~~~~~II
City: nager
Attest: '
~_l.~!j... O~
City lerk "---:".-. .' . ,,'.
/-. '
- .
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...... .
BEACHWALK RESORT, LLC, a
Florida limited liability company
By: Clearwater Beach Resort,
LLC, a Florida limited
liability company,
Managing Member
~
Br' aub,
'. - - Manag~ng -M-:be,
Exhibit 1
1. Rental of beach towels.
2. The sale of packaged snacks and non-alcoholic beverages.
3. The sale of beach sundries.
4. The rental of showers and lockers.
Exhibit L
HYATT CLEARWATER BEACH RSORT
BEACH CONCESSION CRITERIA QUALITY STANDARDS
FURNITURE (100)
Chaise lounge
Manufacturer: Tropitone Spinnaker chaise lounge chair with arms (Model # 159932) (if
suitable for beach use)
Otherwise: Steamer/Deck Chair - Canvas
Manufacturer: Harrison & Todd
UMBRELLAS (60)
Aluminum pole
Cast aluminum stand alone bases
Manufacturer: Galtech: Market Umbrella - 9' (or equal)
Sunbrella Fabric (mildew resistantIUV resistant)
CUSTOM BEACH CABANAS - 78" X 64" X 64" (40)
Marine grade fabric
SIDE TABLES (25)
Cast Aluminum - 22" round X 17"
Maunfacturer: Tropitone (or equal)
UNIFORMS
Tropical Shirt with Khaki shorts and skirt
White tennis shoes with white ankle socks
EMPLOYEES (2)
Properly groomed hair
Clean shaven or well groomed facial hair
Clean, neat overall appearance
Professional, courteous attitude
KEY ISSUE
Ability to change hotel guests on room account
EXHIBIT M
BEACH WALK IMPROVEMENT SCHEDULE
ITEM DURATION COMPLETION DATE
Complete design and construction plans January 2005
Bid & award construction contract 3 months April 2005
Construct S. Gulfview detour & Coronado 12 months April 2006
Improvements
Construct S. Gulfview & Beach Walk 12 months May 2007
from Central Plaza north to Coronado
Construct S. Gulfview & BeachWalk 12 months June 2008
from Central Plaza to southern end
Final project clean-up & Grand Opening 4 months November 2008
Exhibit N
MINIMUM QUALITY STANDARD
Hotel Quality Standard
Minimum Quality Standards
The Development Agreement ("Agreement") between the City of Clearwater, Florida
(the "City") and Beach Walk Resort, LLC ("Developer") provides for the allocation of two
hundred and nine (209) resort hotel units from the Beach by Design hotel unit pool ("Hotel
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, 250 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 Hotel 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 three (3) alternative ways in which the
Developer may satisfy the quality requirements of Beach by Design (the "Minimum Quality
Standards"):
1) operation of the Hotel by a branded hotel operator or operation
of the Hotel as a franchised national brand that is generally
regarded as operating or franchising hotels at a standard regarded
as being higher than the minimum standard required of a AAA
three diamond or a Mobil 3 star hotel; or
2) 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
TPA:345431 :2
Exhibit N
"Other Rating Service") and obtaining a quality rating comparable
to the AAA and MTG ratings described in (a) and (b) of this
subparagraph;
or
3) 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) or (b),
inclusion in the Hotel of 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 compliance with the following (the "Upgrade Criteria"):
1.
Exterior.
1.
Curb Appeal.
1. A combination of exterior elements which create an impressive well-
integrated and excellent level of curb appeal.
1. Excellent variety of landscaping professionally planned and
maintained.
2. Impressive architectural features well-integrated into the
surrounding area.
2.
Parking.
1.
Lighting fixtures reflect characteristics of the design of the
property.
2.
Physical evidence of added security exists.
3.
Excellent overall illumination.
TPA:345431 :2
Exhibit N
II. Public Areas.
a. Furnishings and Decor: Upscale, well-appointed, and in the theme of the
property; high degree of comfort, featuring professionally fitted coverings; an
abundant variety of live plants or unique dried floral arrangements.
b. Floor Coverings: Excellent quality carpet, wood, marble, or granite floors with
umque area rugs.
c. 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.
d. Signage: Design is well-defined in harmony with the theme of the property.
e. Lobby/Registration Area: Spacious registration area; upgraded luggage carts;
recognizable guest-service area and bellstand.
f. Miscellaneous: Multiple recessed phones with notepads and pens, located away
from traffic areas. Pressing is available at specific times.
g. Restaurant and Dining Facilities: Upscale, full-service restaurant; separate lounge
or bar area.
h. Recreational Facilities:
1. 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.
J. On-site exercise facility with state of the art equipment; lockers and dressing area
provided.
k. Meeting Rooms. Variety of well-appointed meeting rooms with upscale design
elements. Audiovisual equipment available.
1. Restrooms. Upscale facilities appropriate for the number of meeting rooms.
m. Additional Recreational Facilities: Excellent variety of additional recreational
facilities is available on site or arrangements are made for off-site services.
n. Sundries and Other Shops: Upscale gift shop.
III. Guestroom.
TPA:345431 :2
Exhibit N
a. Free Floor Space: Obvious degree of spaciousness allowing increased ease of
movement for guests.
b. Floor Coverings: Excellent quality carpet, wood, marble, granite or other
high-end stone floors with unique area rugs.
c. Clothes Hanging Space: At least eight open-hook wood hangers.
d. Clothes Storage Space: Sufficient space for two pieces of luggage; upgraded
racks or benches.
e. Illumination: Excellent overall illumination; free standing fixtures in appropriate
places.
f. Television Placement: Television located in closed armoire.
IV. Guestroom Amenities.
1. Multiple or cordless telephone. High-speed internet access. Enhanced
guest- service directory in folder.
2. Upgraded stationery. Framed or beveled full-length mirror.
3. Full-size iron and ironing board.
4. Minibar.
VI. Bathrooms:
a. Wall and Floor Coverings. Excellent quality, including ceramIC tile,
marble, or granite flooring.
b. Free Floor Space. Excellent size bathrooms affording guests increased
ease of movement and comfort.
c. Amenities:
1. Excellent quality plush towels; oversized.
11. Facial tissues of excellent quality in decorative container.
111. Free-standing hair dryer.
IV. Bathroom area rug.
TPA:345431 :2
Exhibit N
v. Make-up mirror.
VI. Telephone.
Compliance Assessment
Initial Rating Period
As soon as is reasonably possible after the date on which the hotel shall first open for
transient rental business to the public ("Hotel Opening"), 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 Hotel Opening ("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. In the event that 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 Hotel Opening, 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 Ouality Standards
1. The Developer shall maintain compliance with the Minimum Quality Standards
throughout the term of this Agreement.
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 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 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
TPA:345431 :2
Exhibit N
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 rated the Hotel
has given notice stating that such service has downgraded the Hotel's rating to a lower rating
level ("Rating Downgrade 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 it is not reasonably 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. 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
favor of the City, the Developer shall then cure the default within thirty (30) days after resolution
of the dispute.
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 continues 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 Developer if the Developer must make
modifications or take actions to restore the Hotel to the Minimum Quality Standard where such
TPA:345431 :2
,
Exhibit N
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 thirty (30) days,
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.
In the event that an Event of Default occurs, the accumulated fines shall be a lien against the
Hotel component ofthe Developer's Property which may, at the City's sole discretion, be enforced
through a foreclosure proceeding.
TPA:345431 :2
'--- '.
Exhibit 0
Parking Rate Comparables
2004 Visitor Parking Garage Comparables
Location Hourlv Rate Dailv Rate
Miami Beach $1/hr - 1 st. hr $16 max
$2/hr - 2nd. hr $10 (9pm - 6am, Fri. - Sun.)
$6/hr - after 3 hrs.
Lowes Miami Beach $2/hr $16 max
Crowne Plaza Miami Beach $2/hr $20 max
Biscayne Bay Miami Beach $7/hr $16 max
Ft. Lauderdale Marriott Portside $2/hr $12 max
Ft. Lauderdale Marriott Marina $2/hr $12 max
Hyatt Pier 66 - Ft. Lauderdale $3/hr $10 max
Adams Mark Clearwater Beach $2/hr $10 max
Adams Mark Daytona Beach $1/hr $6 max
Hollywood $5 max
· City's recommendation for new parking garage rates:
$ 1.75/hr (Mon. - Thurs. ) wi $12 max
$ 2.25/hr ( Fri. - Sun. ) wi $15 max