Loading...
RECORDED - SECOND AMENDED AND RESTATED DEVELOPMENT AGREEMENT I#: 2004482563 BK: 13996 PG: 2409, 12/13/2004 at 09:11 AM, RECORDING 116 PAGES $987.50 KARLEEN F. DE BLAKER, CLERK OF COURT PINELLAS COUNTY, FL BY DEPUTY CLERK: CLKDMC5 'i; - ;.t ---.-.....-- I 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]}(1em~ r / ~2004 w- 3.:L7-0, (>\ j~ PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2410 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 PlNELLAS COUNTY FL OFF. REC. BK 13996 PG 2411 . " 7_' . , I 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 10,02 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 Project Default by the Developer .............,....,...................................................... 33 Section 12.02 Default by the City .................,..'........................,..................,............................... 35 Section 12.03 Obligations, Rights and Remedies Cumulative.................................................... 36 Section 12.04 Non-Action on Failure to Observe Provisions of this Agreement ....'....... ........... .,.. ....',.,. .,............. .".,...,.. ........ ... .., ......,.,... .... ..,.. .... ...36 Section 12.05 Tennlnation..... ..,..... ..,...., ......,........,............ ......... ......................................... .......36 Section 12.06 Tennination Certificate ,......,...'............,....,.................,.......................,................. 38 ARTICLE 13. RIGHT TO CONTEST ................................................................,.................................... 38 Section 13.01 Right to Contest ..........,......................................,........................ ...............,........, 38 Section 13.02 Conditions '........................................................................................................... 38 ! f f I 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 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2412 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 Assignments ..... ..... ..,.... ...... ..... .... ....,.......... ................... ..............,............... ......... 46 Section 18,02 Successors and Assigns......................................................................................47 Section 18.03 Notices .................................,....................................................,.......................... 47 Section 18,04 Applicable Law and Construction......................,..................................................48 Section 18.05 Venue; Submission to Jurisdiction .,.....................................................................48 Section 18.06 Estoppel Certificates .....,........................,.....,....................,.................,................ 49 Section 18.07 Complete Agreement; Amendments.................,.......,............,.........................,...49 Section 18.08 Captions ............................................,............................".... ...........................,.... 50 Section 18.09 Holidays....... ..... ............ ....... ........ ................ ......, ................ .........,.................. ...... 50 Section 18.1 0 Exhibits..................,......,............................,.......................,...........,..........,...........50 Section 18.11 No Brokers ...........................................................................................................50 Section 18.12 Not an Agent of City ........................... ............,......................... ............,:.............. 50 Section 18.13 Recording of Development Agreement.....,.......................,.................................. 50 Section 18.14 Public Purpose ................,....'............. .....,.....................,....................................... 50 Section 18.15 No General Obligation..........................................................................................51 Section 18.16 Other Requirements of State Law.............,..........,............,..,............................... 51 Section 18.17 Technical Amendments, Survey Corrections....................................................... 51 Section 18.18 Term; Expiration; Certificate.................................:...............................................51 Section 18,19 Approvals Not Unreasonably Withheld ................................................................ 52 Section 18.20 Effective Date ....,........,.........................................................................................52 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2413 EXHIBITS Legal Description of Controlled Property ..,..........................,....................................,...................................A Project Description,.,.,.....,...,..,.,..,..,..."....,..........,.......,....,....,.........,........,.......,.,...",...,..............., ....."...... ..:e Project Site.............,..,. .....,...............,. .......... ..... ....,.... ................., ........................ ................,....... ................ C Project Development Schedule.... ............. ...... ......... ,...,.............. ,... ........................... .................. .............,.. 0 Covenant Trip Generatio,n 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 ~each.Walk Improvement Schedule, .,'. .. ,.".,. ..,. ..".,... ..... .., ... ..,.., ... ..... ,........ .... ..... .', ......, .,., ....""..." ....... .,,1\1I Minimum Hotel Quality Standards....... ............................................ ...~...........................................,.........,..N Parking Rate Comparables" .,..... ... .... .... ,.,...... ."...,.,., .......'. ..,.. ..........., ..,...... ......'..., .... .". ,.,.... .".. ..., ..,.,.,.. ..,0 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2414 r--._~-- This Second Amended Agreement for Development of Property (the "Agreement") is made as of this ~ day of Dt)f'i'~ 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; . TPA:340249:9 Second Amended Development Agreement ADOPTED PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2415 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 ~ 4- 206 and 4-606 of the Community Development Code; WHEREAS, at a duly called public meeting on ~(lembu- ~ , 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, TPA:340249:9 Second Amended Development Agreement ADOPTED Page 2 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2416 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 Pinel/as 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. TPA:340249:9 Second Amended Development Agreement ADOPTED Page 3 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2417 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, 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, 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- TPA:340249:9 Second Amended Development Agreement ADOPTED Page 4 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2418 of-way of South Gultview 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, 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 Gultview, including the removal of parking from the dry sand beach, implementation of the South Gultview 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 TPA:340249:9 Second Amended Development Agreement ADOPTED Page 5 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2419 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 mo~e 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. I I I I 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. 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 3. 2, TPA:340249:9 Second Amended Development Agreement ADOPTED Page 6 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2420 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 prot~ct 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, TPA:340249:9 Second Amended Development Agreement ADOPTED Page 7 PlNELLAS COUNTY FL OFF. REC. BK 13996 PG 2421 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 Desianation. The Project Site is designated Tourist District in the City's land Development Regulations, 2. Amendments to ComDrehensive Plan & Land DeveloDment Reaulations. 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, ADDlications for DeveloDment ADDroval. 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 aU 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 TPA:340249:9 Second Amended Development Agreement ADOPTED Page 8 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2422 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 Coooeration and Assistance, The City shall cooperate with the Developer in obtaining all necessary Permits required for the construction, completion and opening for business of the Project. If requested by the Developer and authorized by law, the City will join in any application for any Permit, or, alternatively, recommend to and urge any governmental authority that such Permit or Permits be issued or approved. 4, City Authority Preserved. The City's duties, obligations, or responsibilities under any section of this Agreement, specifically including, but not limited to, this Section 3.02, shall not affect the City's right, duty, obligation, authority and power to act in its governmental or regulatory capacity in accordance with applicable laws, ordinances, codes or other building regulations, Notwithstanding any other provision of this Agreement, any required permitting, licensing or other regUlatory approvals by the City shall be subject to the established procedures and substantive requirements of the City with respect to review and permitting of a project of a similar or comparable nature, size and scope. In no event shall the City, due to any provision of this Agreement, be obligated to take any action concerning regulatory approvals except through its established procedures and in accordance with applicable provisions of law, 5, Imoact. Fees, The City shall use its best efforts to secure or provide any lawfully available credits against impact fees applicable to the Project which are authorized under existing laws and regulations for public improvements constructed and paid for by the Developer. In the event that the City is unable to secure a credit against any impact fees, the City shall use its best efforts, within the limits of the applicable law, to allocate Impact fees collected from the Developer to the public improvements which are described in 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. TPA:340249:9 Second Amended Development Agreement ADOPTED Page 9 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2423 3.03. Concurrency. 1, Concurrencv Reauired. The parties hereto recognize and acknowledge that Florida law (specifically, Part II, Chapter 163, Florida Statutes, and Rule 9J- 5, Florida Administrative. Code, collectively the "Growth Management Acf') imposes restrictions on development if adequate public improvements are not available concurrently with that development to absorb and handle the demand on public services caused by development. The City has created and implemented a system for monitoring the effects of development on public services within the City. The Developer recognizes and acknowledges it must satisfy the concurrency requirements of Florida law and the City's regulations as applied to this Project, 2, Reservation of Caoacitv, 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 . Resoonsibilitv for Preoaration of Plans and Soecifications, The Developer shall be solely responsible for and shall pay the cost of preparing, submitting and obtaining approval of the Plans and SpeCifications for the Project. 2. Use of Qualified Professionals. The Developer shall retain qualified professionals to prepare the Plans and SpeCifications and shall cause such professionals to prepare ~he Plans and Specifications. 3, Aooroval of Plans and SDecifications for the Parkina Soaces Which Are To Be Available. to the Public. In order to ensure that the TPA:340249:9 Second Amended Development Agreement ADOPTED Page 10 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2424 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, Parkina in the Prolect, 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 fonn 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 TPA:340249:9 Second Amended Development Agreement ADOPTED Page 11 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2425 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. TPA:340249:9 Second Amended Development Agreement ADOPTED Page 12 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2426 l' South Gulfview and Beach Walk Imorovements. 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 Richts-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-ot- 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 ot 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. Parkinc Garace, 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, TPA:340249:9 Second Amended Development Agreement ADOPTED Page 13 PlNELLAS COUNTY FL OFF. REC. BK 13996 PG 2427 5. Authority for Cafe Seating. 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, Garace Access ImDrovement AoDroval. 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, TPA:340249:9 Second Amended Development Agreement ADOPTED Page 14 PlNELLAS COUNTY FL OFF. REC. BK 13996 PG 2428 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, Timelv 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, and inspection program for this Project. 10, Additional Public Parkina, 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 existenc:e 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 in 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. TPA:340249:9 Second Amended Development Agreement ADOPTED Page 15 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2429 11. Garaae Access ImDrovements. 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 TPA:340249:9 Second Amended Development Agreement ADOPTED Page 16 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2430 Improvements, for a period of time not to exceed twenty five (25) years. 5.05. Obligations of the Developer. 1 Resort Hotel and Parkina Garaae 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 AM three diamond or a Mobil 3 star hotel. 2 Resoonsibilitv 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 Parkina, 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 Garaae Access Imorovements. 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. TPA:340249:9 Second Amended Development Agreement ADOPTED Page 17 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2431 b, The Developer shall be responsible for a pro rata share of the cost of the South Gulfview and Beach Walk 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 Paymenf'), 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 TPA:340249:9 Second Amended Development Agreement ADOPTED Page 18 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2432 Improvements as a condition of development approval. 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 Obliaations. 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 ot Riaht-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-ot-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 TPA:340249:9 Second Amended Development Agreement ADOPTED Page 19 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2433 shall give written notice thereof to the City by certified mail, return receipt requested. Such notice from the Project Lender to the City shall state the basis of the default by the Developer and shall include copies of any pleadings in any proceeding instituted by the Project Lender(s) incident thereto. 6.03. City Option to Pay Mortgage Debt or Purchase Project Following Commencement of Construction of Project. 1, Assianment of Mortaaae. 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 Iimitation,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 TPA:340249:9 Second Amended Development Agreement ADOPTED Page 20 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2434 to the. terms and provisions of this Agreement. Copies shall be mailed or delivered to the holder at, or as near as possible to, the same time the notices are given to or served on Developer, The Project lender may, at its option, at any time before the rights of Developer shall be terminated as provided in this Agreement, do any act or thing that may be necessary and proper to be done in the observance of the covenants and conditions of this Agreement or to prevent the termination of this Agreement. All payments so made and all things so done and performed by the Project lender sh.all 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 TPA:340249:9 Second Amended Development Agreement ADOPTED Page 21 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2435 same terms, covenants, conditions and agreements as are contained in this Agreement, provided that the Project Lender or its designee shall: 1, Pay to City at the time of the execution and delivery of said new agreement any and all sums which would have been due under this Agreement from the date of termination of this Agreement (had this Agreement not been terminated) to and including the date of the execution and delivery of said new agreement, together with all expenses, including but not limited to, attorneys' fees (for trials and appeals) in a reasonable amount incurred by City in connection with the termination of this Agreement and with the execution and delivery of the new agreement, and 2. On or prior to the execution and delivery of said new agreement agree in writing that promptly following the delivery of such new agreement, such Project Lender or its designee will perform or cause to be performed all of the other covenants and agreements in this Agreement on Developer's part to be performed to the extent that Developer shall have failed to perform the same to the date of delivery of such new agreement. 6.11 Transfer of New Agreement The Project Lender shall have the right to assign or transfer the new agreement to any person or entity without the City's consent so long as the new agreement is in good standing and Project Lender is current in obligations owed to the City.. Notwithstanding the foregoing, any Project Lender that is assigning the new agreement and the estate created thereby shall provide to the City notice of assignment and shall cause to be executed and delivered in a form reasonably acceptable to the City an assumption agreement from the assignee pursuant to which said assignee assumes the duties, obligations, covenants, conditions and restrictions of the new agreement. Upon such assignment and assumption by the assignee, the assignor shall be released of all liability under the new agreement and, upon request of the assignor, the City shall execute and deliver to the assignor a release agreement in a form reasonably acceptable to the assignor evidencing such release of the assignor from any liability under the new agreement. 6.12 Survival. The provisions of this Article 6 shall survive the termination of this Agreement and shall continue in full force and effect thereafter to the same extent as if Article 6 were a separate and independent contract made by the City, the Developer and the Project Lender, ARTICLE 7. CONSTRUCTION OF GARAGE ACCESS IMPROVEMENTS. TPA:340249:9 Second Amended Development Agreement ADOPTED Page 22 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2436 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, 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 SUDDliers, 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 TPA:340249:9 Second Amended Development Agreement ADOPTED Page 23 PlNELLAS COUNTY FL OFF. REC. BK 13996 PG 2437 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 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," "substantiany complete" or "substantial completion" means, with respect to construction of the Garage Access Improvements. 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, TPA:340249:9 Second Amended Development Agreement ADOPTED Page 24 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2438 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 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 I.n 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, losses, expenses or attorneys' fees through appellate proceedings, for personal injury, bodily injury, death or property damage arising TPA:340249:9 Second Amended Development Agreement ADOPTED Page 25 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2439 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 perfonnance 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 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, TPA:340249:9 Second Amended Development Agreement ADOPTED Page 26 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2440 2. The City shall indemnify, defend and hold harmless the Developer, its officers and employees from any and all liabilities, damages, costs, penalties, judgments, claims, demands, losses, or expenses (including, but not limited to, actual attorneys' fees and engineering fees) arising from or attributable to any breach by the City, as the case may be, of any representations or warranties contained in Section 10.01, or covenants contained in Section 10,02. 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: TPA:340249:9 Second Amended Development Agreement ADOPTED Page 27 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2441 1. The Developer is a Florida Limited Liability Company duly organized and validly existing under the laws of the State of Florida, has all requisite power and authority to carry on its business as now conducted, to own or hold its properties and to enter into and perform its obligations hereunder and under each document or instrument contemplated by this Agreement to which it is or will be a party, is qualified to do business in the State of Florida, and has consented to service of process upon a designated agent for service of process in the State of Florida, 2, This Agreement and, to the extent such documents presently exist in a form accepted by the City and the Developer, each document contemplated or required by this Agreement to which the Developer is or will be a party have been duly authorized by all necessary action on the part of, and have been or will be duly executed and delivered by, the Developer, and neither the execution and delivery thereof, nor compliance with the terms and provisions thereof or hereof: (i) requires the approval and consent of any other party, except such as have been duly obtained or as are specifically noted herein, (ii) contravenes any existing law, judgment, governmental rule, regulation or order applicable to or binding on the Developer, (iii) contravenes or results i'n 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 Develope~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 TPA:340249:9 Second Amended Development Agreement ADOPTED Page 28 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2442 aggregate, to materially adversely affect the consummation of the transactions contemplated hereunder or the financial condition of the Developer. 5. The Developer has filed or caused to be filed all federal, state, local and foreign tax returns, if any, which were required to be filed by the Developer and has paid, or caused to be paid, all taxes shown to be due and payable on such returns or on any assessments levied against the Developer. 6, All financial information and other documentation, including that pertaining to the Project or the Developer, delivered by the Developer to the City was, on the date of delivery thereof, true and correct. 7. The principal place of business and principal executive offices of the Developer is in 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 coveRants 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, the Developer shall cause to be executed and to continue to be in effect those instruments, documents, certificates, permits, licenses and TPA:340249:9 Second Amended Development Agreement ADOPTED Page 29 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2443 approvals and shall cause to occur those events contemplated by this Agreement that are applicable to, and that are the responsibility of, the Developer. 3. The Developer shall assist and cooperate with the City to accomplish the development of the Project by the Developer in accordance with the 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, 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, TPA:340249:9 Second Amended Development Agreement ADOPTED Page 30 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2444 commit, or suffer any waste or impairment of the Project or the Project Site prior to the Completion Date, 9. Intentionally Deleted. 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. TPA:340249:9 Second Amended Development Agreement ADOPTED Page 31 PlNELLAS COUNTY FL OFF. REC. BK 13996 PG 2445 3, This Agreement and, to the extent such documents presently exist in a form accepted by the City and the Developer, each document contemplated or required by this Agreement to which the City is or will be a party constitute, or when entered into will constitute, legal, valid and binding obligations of the City enforceable against the City in accordance with the terms thereof, except as such enforceability may be limited by public policy or applicable bankruptcy, insolvency or similar laws from time to time in effect which affect creditors' rights generally and subject to usual equitable principles in the event that equitable remedies are involved. 10.02. Covenants. The City covenants with the Developer that until the earlier of the Termination Date or the Expiration Date: 1. The City shall timely perform, or cause to be performed, all of the obligations contained herein which are the responsibility of the City to perform. 2. During each year that this Agreement and the obligations of the City under this Agreement shall be in effect, the City shall cause to be executed and to continue to be in effect those instruments, documents, certificates, permits, licenses and approvals, and shall cause to occur those events contemplated by this Agreement that are applicable to and are the responsibility of the City, 3. The City shall assist and cooperate with the Developer to accomplish the development of the 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. TPA:340249:9 Second Amended Development Agreement ADOPTED Page 32 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2446 5. The City shall maintain its financial capability to carry out its responsibilities as contemplated by this Agreement and shall notify the Developer of any event, condition, occurrence, or change in its financial condition which adversely affects, or with the passage of time is likely to adversely affect, the City's financial capability to carry out its responsibilities contemplated hereby, ARTICLE 11. CONDITIONS PRECEDENT. 11.01. 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 I 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 pursuantto 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 TPA:340249:9 Second Amended Development Agreement ADOPTED Page 33 PlNELLAS COUNTY FL OFF. REC. BK 13996 PG 2447 bankruptcy, or shall be adjudicated a bankrupt or insolvent, or shall file a petition seeking any reorganization, arrangement, composition,' readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation or shall file an answer admitting, or shall fail reasonably to contest, the material allegations of a petition filed against it in any such proceeding, or shall 'seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of the Developer or any material part of such entity's properties; or c. Within one hundred twenty (120) days after the commencement of any proceeding by or against the Developer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, such proceeding shall not have been dismissed or otherwise terminated, or if, within 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 2. 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. . a, TPA:340249:9 Second Amended Development Agreement ADOPTED Page 34 PINELLAS COUNTY FL OFF, REC. BK 13996 PG 2448 c. Any time periods or deadlines provided in this Agreement shall be tolled or extended by the amount of time to cure ~ny event of default hereunder if such event affects the Developer's or City's ability to perform by such deadline or the expiration of such period, 3. Subject to the rights of the Project Lender, if the City elects 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 TPA:340249:9 Second Amended Development Agreement ADOPTED Page 35 PlNELLAS COUNTY FL OFF, REC. BK 13996 PG 2449 entitled; provided, however, if the event of default by the City occurs, any monetary recovery by the Developer in any such action shall be limited to bona fide third-party out-of-pocket costs and expenses, including reasonable attorneys' fees, incurred by the Developer in connection with this Agreement and the transactions contemplated hereby, unless any such default by the City was willful and committed in bad faith with reckless disregard for the rights of the Developer, 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 perfonn 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. TPA:340249:9 Second Amended Development Agreement ADOPTED Page 36 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2450 1, The Developer and the City acknowledge and agree that as of the Effective Date certain matters mutually agreed by the parties hereto to be essential to the successful development of the Project have not been satisfied or are subject to certain conditions, legal requirements or approvals beyond the control of any of the parties hereto or which cannot be definitely resolved under this Agreement, including, but not limited to, failure of a governmental authority to grant an approval required for development of the Project or insurable title to the Project Site has not been obtained. In recognition of these events or conditions, the parties hereto mutually agree that, provided the appropriate or responsible party therefor diligently and in good faith seeks to the fullest extent of its capabilities to cause such event or condition to occur or be satisfied, the failure of the events or conditions listed in subsection (2) below to occur or be satisfied shall not constitute an event of default by any party under this Article 12, but may, upon the election of any party hereto, be the basis for a termination of this Agreement in accordance 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 riecessary 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 TPA:340249:9 Second Amended Development Agreement ADOPTED Page 37 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2451 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, 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 ~ther 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 descri.bed 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 TPA:340249:9 Second Amended Development Agreement ADOPTED Page 38 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2452 charges of a similar nature that may from time to time be levied upon or assessed by any appropriate governmental authority against the Developer, the Project (or any part thereof), the Project Site, furniture, fixtures, equipment or other personal property thereon, and the revenues generated from the use or operation of any or all of the above, any other payment specifically identified in this Agreement, or compliance with any law, rule, regulation, or other such legal requirement. 13.02. Conditions. The right to contest any charge, payment or requirement. pursuant to Section 13.01 is subject to the following: 1, Such proceeding shall suspend the execution or enforcement of such charge, payment or requirement; 2, Such proceeding will not create any risk of impairment of the acquisition or preparation of the Project Site, the construction, completion, operation or use of the Project, the Project Site, or any part thereof, in any material respect, and neither the Project or Project Site, nor any part of the Project or the Project Site, would be subject to any risk of being involuntarily sold, forfeited or lost or the acquisition of the Project Site or the construction, equipping, or completion of the Project or any part thereof be delayed or prohibited; 3, Such proceeding will not subject any other party to criminal liability or risk of material civil liability for failure to comply therewith, or involve risk of any material claim against such party; and 4. The party seeking the benefit of this Article shall have furnished to the other parties such security, if any, as may be required in such 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 TPA:340249:9 Second Amended Development Agreement ADOPTED Page 39 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2453 affects the performance of any party hereunder, then any time periods provided herein for such performance by that party shall be tolled during the pendency of the arbitration proceeding affecting such performance. 14.02. Appointment of Arbitrators. 1, 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 TPA:340249:9 Second Amended Development Agreement ADOPTED Page 40 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2454 notice of such failure to agree to the parties, and, if the parties then fail to agree upon the selection of such third arbitrator within fifteen (15) days thereafter, then within ten (10) days thereafter each of the parties upon written notice to the other parties hereto may request the appointment of a third arbitrator by the office in or for the State of Florida ,(or if more than one office, the office located closest to the City) of the American Arbitration Association (or any successor organization thereto), or, in its absence, refusal, failure or inability to act, request such appointment of such arbitrator by the United States District Court for the Middle District of Florida (which' request shall be filed in the division of that court responsible for the geographic area including the City), or as otherwise provided in Chapter 682, Florida Statutes, known and referred to as the Florida Arbitration Act, as amended. 14.03. General Procedures. In any arbitration proceeding under this part, those parties appointing arbitrators shall each be fully entitled to present evidence and argument to the sole arbitrator or panel of arbitrators, The arbitrator or panel of arbitrators shall only interpret and apply the terms of this Agreement and may not change any such 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. TPA:340249:9 Second Amended Development Agreement ADOPTED Page 41 PlNELLAS COUNTY FL OFF. REC, BK 13996 PG 2455 1, If any decision reached by arbitration as provided in this part requires performance by the Developer, the Developer covenants and agrees to comply with any decision of the arbitrator(s} promptly after the date of receipt by the Developer of such decision, and to continue such performance to completion with due diligence and in good faith, 2, If any such decision requires performance by the City, the City covenants and agrees to comply promptly with any decision reached by arbitrators} promptly after the date of receipt by the City of such decision, and to continue such performance to completion with due diligence and in good faith. 3. Nothing in this part, nor in any arbitration decision rendered under this part, shall be construed to require any payment by the City to the Developer not otherwise provided for herein, 14.07. Expense of Arbitration. The expenses of any arbitration proceeding pursuant to this part shall be borne equally by the parties to such proceeding, provided, however, for the purpose of this Section 14.07, "expenses" shall include the fees and expenses of the arbitrators and the American Arbitration Association with respect to such proceeding, but shall not include attorneys' fees or expert witness fees, or any costs incurred by attorneys or expert witnesses, unless (and to the extent) agreed to by the parties to such proceeding, which in the absence. of such Agreement shall be the responsibility of the party incurring such fees or costs, 14.08. Accelerated Arbitration. 1. 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 TPA:340249:9 Second Amended Development Agreement ADOPTED Page 42 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2456 organization thereto) with the consent of the parties to such proceeding within three (3) days after receipt of the request and to decide such matter within five (5) days after such appointment. c. If an arbitrator is not so appointed with consent of the parties to the proceeding within three (3) days after the notice referred to in paragraph (2) is received by the American Arbitration Association, the accelerated proceeding under this Section 14,08 shall terminate and the procedures otherwise set forth in this Article 14 shall apply, unless the parties mutually agree to an extension of such time period. 2. The Developer and the City hereby agree to use such accelerated procedure only when reasonably necessary, to not contest the appointment of the arbitrator or his or her decision except as may be permitted by law, and that all other provisions of this part, except as are in conflict with this Section 14,08, remain in effect and applicable to an accelerated arbitration proceeding. 14.09. Applicable Law. To the extent not inconsistent with this article, any arbitration proceeding under this article shall be governed by the provisions of Chapter 682, Florida Statutes, as amended, known and referred to as the Florida Arbitration Code. 14.10. Arbitration Proceedings and Records. Any arbitration hearing under this article shall be considered a meeting subject to Section 286,011, Florida Statutes, and shall be open to any member of the public. Unless otherwise rendered confidential pursuant to or by the operation of any applicable law or order (other than an order by a sole arbitrator or 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 TPA:340249:9 Second Amended Development Agreement ADOPTED Page 43 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2457 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, lightning, hurricanes, earthquakes, tornadoes, floods, extremely abnormal and excessively inclement weather (as indicated by the records of the local weather bureau for a five-year period preceding the Effective Date), strikes or labor disturbances, delays due to proceedings under Chapters 73 and 74, Florida Statutes, restoration in connection with any of the foregoing, or any other cause beyond the reasonable control of the party performing the obligation in question, including, without limitation, such causes as may arise from the act of the other party to this Agreement, or acts of any governmental authority (except that acts of the City shall not constitute an Unavoidable Delay with respect to performance by the City), 3, An application by any party hereto (referred to in this paragraph (c) and in paragraph (d) as the "Applicant") for an extension of time pursuant to this'subsection must be in writing, must set forth in detail the reasons and causes of delay, and must be filed with the other party to this Agreement within seven (7) days following the occurrence of the event or condition causing the Unavoidable Delay or seven (7) days following the Applicant becoming aware (or with the exercise of reasonable diligence should have become aware) of such occurrence, 4, The Applicant shall be entitled to an extension of time for an Unavoidable Delay only for the number of days of delay due solely to the occurrence of the event or condition causing such Unavoidable Delay and only to the extent that any such occurrence actually delays that party from proceeding with its rights, duties and obligations under this Agreement affected by such occurrence, ARTICLE 16. RESTRICTIONS ON USE. 16.01. Project. Prior to the earlier of the Termination Date or the Expiration Date, no use of the 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 TPA:340249:9 Second Amended Development Agreement ADOPTED Page 44 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2458 such terms, conditions and limitations as the City may reasonably require. Unless specifically requested and approved, a release of the restriction imposed by this Section shall not release the Developer from any obligations or restrictions imposed by this Agreement or any agreement, instrument or document contemplated hereby, ARTICLE 17. FIRE OR OTHER CASUAL TV; CONDEMNATION. 17.01. Loss or Damage to Project. 1. Until the 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 TPA:340249:9 Second Amended Development Agreement ADOPTED Page 45 ;Il PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2459 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. 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. Bv the Develocer. TPA:340249:9 Second Amended Development Agreement ADOPTED Page 46 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2460 a, Prior to the Commencement Date, the Developer may sell, convey, assign or otherwise dispose of any or all of its right, title, interest and obligations in and to the Project, or any part thereof, only with the prior written consent of the City, provided that such party (hereinafter referred to as the "assignee"), to the extent of the sale, conveyance, assignment or other disposition by the Developer to the assignee. shall be bound by the terms of this Agreement the same as the Developer for such part of the Project as is subject to such sale, conveyance, assignment or other disposition. b. 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 TPA:340249:9 Second Amended Development Agreement ADOPTED Page 47 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2461 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 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, TPA:340249:9 Second Amended Development Agreement ADOPTED Page 48 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2462 18.04. Applicable Law and Construction. The laws of the' State of Florida shall govern the validity, performance and enforcement of this Agreement. This Agreement has been negotiated by the City and the Developer and the Agreement, including, without limitation, the Exhibits, shall not be deemed to have been prepared by the City or the Developer, but by all equally, 18.05. Venue; Submission to Jurisdiction. 1. For purposes of any suit action, or other proceeding arising out of or relating to this Agreement, the parties hereto do acknowledge, consent, and agree that venue thereof is Pinellas County, Florida. 2. Each party to this Agreement hereby submits to the jurisdiction of the State of Florida, Pinellas County and the courts thereof and to the jurisdiction of the United States District Court for the Middle District of Florida, for the purposes of any suit, action, or other proceeding arising out of or relating to this Agreement and hereby agrees not to assert by way of a motion as a 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 TPA:340249:9 Second Amended Development Agreement ADOPTED Page 49 PlNELLAS COUNTY FL OFF. REC. BK 13996 PG 2463 party is then in default hereof, stating the nature and details of such default), it being intended that any such statement delivered pursuant to this Section 18,06 may be relied upon by any prospective purchaser, mortgagee, successor, assignee of any mortgage or assignee of the respective interest in the Project, if any, of any party made in accordance with the provisions of this Agreement. 18.07. Complete Agreement; Amendments. 1. This Agreement, and all the terms and provisions contained herein, including without limitation the Exhibits hereto, constitute the full and complete agreement between the parties hereto to the date hereof, and supersedes and controls over any and all 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, TPA:340249:9 Second Amended Development Agreement ADOPTED Page 50 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2464 18.12. Not an Agent of City. During the term of this Agreement, the Developer hereunder shall not be an agent of the City with respect to any and all services to be performed by the Developer (and any of its agents, assigns, or successors) with respect to the Project. 18.13. Recording of Development Agreement Pursuant to ~163,3239, Florida Statutes (2004), the City authorizes and hereby directs the City Clerk to record this Agreement in the public records of Pinellas County, Florida, within fourteen (14) days after City Council approval of this Agreement. The Developer shall pay the cost of such recording, A copy of the recorded development agreement shall be submitted to the state land planning agency within fourteen (14) days after the agreement is recorded, 18.14 Public Purpose. The parties acknowledge and agree that this Agreement satisfies, fulfills and is pursuant to and for a public purpose and municipal purpose and is in the public interest, and is a proper exercise of the City's power and authority, 18.15. No General Obligation. In no event shall any obligation of the City under this Agreement be or constitute a general obligation or indebtedness of the City, or 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 Amendmentsj 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 TPA:340249:9 Second Amended Development Agreement ADOPTED Page 51 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2465 technical matters arising during the term of this Agreement, the parties agree that amendments to this Agreement required due to such inaccuracies, unforeseen events or circumstances which do not change the substance of this Agreement may be made and incorporated herein, The City Manager is authorized to approve such technical amendments on behalf of the City, respectively, and is authorized to execute any required instruments, to make and incorporate such amendment to this Agreement or any Exhibit attached hereto or any other agreement contemplated hereby. 18.18. Term; Expiration; Certificate. 1. If not earlier terminated as provided in Section 12.05, this Agreement shall expire and no longer be of any force and effect on November 18,2014, 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. As provided by ~163,3239, Florida Statutes (2004), this agreement will become effective after being recorded in the public records in the county and 30 days after having been received by the state land planning agency. TPA:340249:9 Second Amended Development Agreement ADOPTED Page 52 PlNELLAS COUNTY FL OFF. REC. BK 13996 PG 2466 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. THE CITY OF CLEARWATER, FLORIDA ~:~st:(I ~ G: Ji, fb-- ~k Approved as to form: I)j;~. Pamela K, Akin City Attorney [SIGNATURES CONTINUED ON NEXT PAGE] STATE OF FLORIDA ) ) COUNTY OF PINELLAS ) . '-:--. The forpgoing instru~. nt was acknowledged before me this q~ day of~ , 200~ by Brian Aungst and Cynthia Goudeau, Mayor and City Clerk, respectively, for the City of Clearwater, Florida, on behalf of the City, te.qLl1~ H, L'i fA) ,'"f{. Printed, typed or stamp BY:~"" )1I..d~ Sign tu of Notary Public My Commission Expires: [SIGNATURES CONTINUED ON NEXT PAGE] TPA:340249:9 Second Amended Development Agreement ADOPTED 1IJ ftegIna M. o.wllt \: ~; Mr~DD31m3 PJI" EJCpIrea ~ 02. 2008 Page 53 PlNELLAS COUNTY FL OFF. REC. BK 13996 PG 2467 Beachwalk Resort, LLC, a Florida limited liability company By: Clearwater Beach Resort, LLC, a Florida limited liability company, Managing Member ~:~~~ ~~ 'C 'aub, Managing Member STATE OF FLORIDA ) ) COUNTY OF PINELLAS ) ~ The foregoing instrument. was acknowledged before me this J~+"\. day of ~ ~ 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 limited liability company, on behalf of Beachwalk Resort, LLC. By: My Commission Expires: 1/) RegInI M. DeWIll . . My CoIMlIulan Db311m ~ ~ ExpIra May 02, 2001 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2468 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 Lloyd-White-Skinner Subdivision, as recorded in Plat Book 13, Page 12, of the public records of Pinellas County, Florida. PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2469 -----~---:-.__.._..... -..-............. -. -... Exhibit B Consisting of 22 pages PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2470 Seashell Project Description - as defmed 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 faniily 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 retaiV 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 Bv DesilPl. 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 .-l r-- .., C'l t!> Pol \0 0\ 0\ ('t) .-l tll:: In u ~ iii iii o H rz, :>< E-t 5 o u ~ GRlUID FI.OOIl PLAN ""-"WI'.t4 ~ H riI Z H Pol GENfW NOTES o KfTNOTES 6 IQTNl7TE5 LE'END .-- .-- c..._...... c. ....."- PAIlKING CQJIIT IQ5 WALlT ~ J Aal( M.t. f1111J.K o 6 GROUND flOOR PlAN ...... .....An CLEARWATER BEACH RESORT AND SPA JS;L COLLMANUKARSKV -.... ARCHITeCT. _MGGI'\oU.Io.........'.......IIUI..... ~.....-..am ....-....... ~...~.-..---..- ..- ...,. - Dt.26..2OOf - A300 t!> Pi I i ! (.J (.J ;01 (.J 0 0 I (.J (0) 01 (.J 6.) 0 (0) fW-rI "4 ;I"n -! ..... ! "r , ,,-r J .... 11' ..... Iw"" ..... J !! i! i ! ! ! i! ! ! i ! !i ! ~ L :. Lj' 1. - --'-.l..-'--.l-..-r' ----I--.-----4--------l--i-I---_____L___l.______l. ,'-'. ..-..-,!-, - ,--., . , . -. I' " ., : I I :. I I I' I I ' , I I I : . -___I.' - . , ,-==""..n.,.J,_-=o, ==,= . , , , I , ----f ! '-'-, --.-f i :-=1_1 ! . ----I ! 1 ----I ! -='=j GENERAl. NOTES o I(fYNOTES o 6 ~ETNOTES 6 C'oI l' "<l' C'oI 1.0 en en ('t') ...... LEGEND ~ III u ~ !:z.l !:z.l o H !:z.l ~ 8 5 o u 00 ~ H r1l Z H Pi 1ST FlCOR PLAN ~"'ltn CLEARWATER BEACH RESORT AND SPA _.. i i 'J ! I ! ! . i I $ . ~ T FLOOR PlNI r"""~ _TB f3D.-oGt'UUi........ ......IL.....tlXIl-.a. .r........ ......~'-1Iqo_......,,~ ..- COLLMAN&KARSKV J=L ..... Ol.lfi.2ClO4 A301 (Y) r-- '<:l' C'l j o 0 ;€J10 . 0 0 0 0 010 IV e 0 ~.....! .~ !,,", .~ ! ..~ , r ! ..~ , ..-# "'j"l .-# !"-#! ,,-#! ! '1'1 i ! , 'i! ! ! i ! !! ! r+'---~-'-'--- ~t-!------_._+._~,.-:-.!-_...:..t----!--"""'._+----'-+.H--..____!._"-!-___,._I., i!! I ' I ! ., '! , ' . I !! ! ! . '-'--1- -- ---_.f-t-- , I im I : : , I . ----I- . : I ! :------.- '---i ----t i 4 '-'-1 --'-, ,. . .-.-1 ! ! .-,-1 i '::;:=j '-.-1 i ! t!> Ai 1,0 0\ 0\ (Y) .-t ~ III u f;! ~ ~ o H ~ ~ E-l 5 o u I ! I ~!~ PlAN ~ H ~ H Ai GENERAl. NOTES o ICEYIIOTES o {:; KETNOTES {:; LEGEND --- --- ..... - .... ............. PAf/J(ING CQ/l(T I) Wll..[J PAAaIC . fIla.l(lI",~ MIl ",*I(NIlr.~ J IGJIl GtlI!lr ".c. P.dlIC 2ND FLOOR PlAN ~IR'An CLEARWATER BEACH RESORT AND SPA ---...~ J=:'L COLLMAN&KARSKV AACNTIiCTII ..MOGtftMA.........,......""'... .gz.-.caaa.~--....o .....~~-................- - -- ....... 0I.l5.1OO. A302 ~ I"- ~ (\.I I I i i I i - ! , f-f .~ ;~+f .~ ~ .~ 7 + f .~ f.~ ~+f .~ ?~~ II~ ~ !! :! i ! !.! i! ! ! i ! !! ! rl---t-----ht-----t----:----t----r----i-----1-r-:-------:---t---11 I' , "'. '" ! .1.. .-..L.-'-H.- '-'-r i' i i: : . . , I ._--~ . : I ! :.-.-.-.- '---, . .-.-1 i .-.~l '-. ! '-,-1 i i .-.-! ! -=:=j . "_._~ i i , , . , ~ III i r"~ . I i ' , I -+-.-+--- i i :f=:=f=:= : i .~._-,_.- : I I , : I I ' : I +-.-t-.- i! i I ' . I .!--.-+-.- i i . i i l!.... - .. -.-. . .- -. .. .. .. .. ..J---t-.- :=:=:b:=:'=:=:=:i=i~:=:=:=;:=:=:=-:'f:=:4=:=:f:=:=:='F:=:=:=#=:=:=:::!:=:d:::=:=L:= !! ' 'I ' 'I' . ,. !! ! ! .~! II~! ,. II" ! . .! J, ! .u! ,! II~ !.~! II~ ! Ji 4 :g t ~ I -~ t ~ .1, 4 4 i ~~PlAH i .'" . I t!> Pol . ., 1'3'1 SPACES ! i ! is! . \0 0\ 0\ ('/') .-l . .... ,. u ~ ~ ~ o H ~ ~ E-t 5 o u ~ H r:iI Z H Pol o 6 ......- "-- ......-- c...... ...... o WUl~ 12& ,.."......... GENERAL NOTES KETNOTES o KETNOTES 6 lfGfNO PARKING CQJHT 3RD FlOOll PlAN ...... NYA" EARWATER BEACH RESORT AND SPA -.. J5L COLLMAN&KAI'lSKV AACMTECTa ..MOG......llaWr.ut................... .............-.....oa ....,,~~.... ......-......~- ..- - -- ..." - 09.11.2004 A303 10 I"- ~ (\.I I ! I i (0) C!l 10iC!l 0 0 0 C!l Glil!.>. lD @) l!.> f"~! .~ Pr! .~ I." ! r ! ..~ ! ..~ I~(! .~ I-"r .~! ! !.. I!i!. ! ! i! ! ! i , !! ! r1 . l L1....L..-..-...L..-..-.I-.--t. -..-1.-n-..4.-n----1..i'-I._.._.._L_..l..._.._l., ."~_... .._..-r-.. . . '. . 1 I . '. _. : , 1 . I' 1 1 I' I 1 . . I I 1 .1 : I' . "" ", , . '-',t- .-.t--'-H-- . , , I .---i' . : I I , ----I . .-.-! i '='=1 ----I ! i ----i ! -=:=j . ----I i ! ......- '-- .........- c....... ,... o 6 t!) Pol I r"~ : I I . : ! '-!-'--I--- i i :f=:=f=:= : i -~._._-- : . j I , : I I ' : I +---t-.- 'I ' I: I 'I ' . I -~--+--- i i . I i L.!.... . .. _n .. .. .. .. ., ..J-.-t-- :=:=:b:=:'=:=:=:=j~:=:=:=;:~:=:=::::F'=:+:=:f:=:=:=F:=:=:=#=:=:=:::!:=::h:=:==L:== !! . 'I ' 'I' , " !! I I 1 .!. ! !,! ! ., I I I '.~' -+I .~ + + + + + Ii '.,~_ , ~ .~ ~ ~ @l lee ~ ~ rb 0 . _ J ml Fl1XlR Pl.AIl . ! ~"'..~ ! . I I I \0 0\ 0\ ('/') .-l ~ III G VN.fT ,..... QI rt.IllC,....... u ~ ~ ~ o H ~ ~ E-t 5 o u {/.) ~ H ~ H Pol GENERAL NOTES KETNOTES o KETNOTES 6 LEGEND PARl:IfoI(; Cll.WT 4TH FlOOll PLAN PIaJrOam MY4n LEARWATER BEACH RESORT AND SP COLLMhN&KARSKV -" J=L ARCN'TECT8 ..MGGIUbo..........OO.,.....""..... ...~....-...om ..... ...-.-...- -~....- ..- ...,. - at.M.2GtJ4 A304 \0 I"- ~ (\.I I i i i (1) C!l '0 I C!l 0 (1) I (i) G) 0 i G) lD ""' l!.> !.~! .~ :r.'(! ..~ I .4 ! ..( I .~ ! -~ 'T! ." !.~: ..~ ~ !! i! i ! !.! i! ! ! i ! !, I rl-----t-oo_---..t-j.t..-..---t-------:----t----:'----"i.-..----q-:.-------/----t------h ; , , '." ", I --__,1..,' - . ._-t--'-H-- , , , I .-.-i' , : I ! :.---.-.- ! '---1 I .-.-, '-'-, ----i ! i ----! i -=:=j , ----! ! 1 . . \0 0\ 0\ ('/') .-l i r,,-:J : , I ' . I --f,---+--- i i :f=:=i=:= : i '~--"-'- : I I , : 1 I ' : I -!----t--- " . I: I I ' , I - .j....-+-.- 'j i . I i · u.__ . -- --. -- .. .. ..J-.-t--- u :=:=:d:::=:b:=:=::f=;~:=:=:9:=:=:=~=f'=:+=:=:f:=:=:=f=:=:=:=tr=:=::;:::::::!::=:b:=:=L:= !, ' 'I ' , I' , I' I! ! I I ; !, ! .! ,! ! .! I I I ~ .~ ~ : g "" ~ .~. ~ t ~ II~ ~ II~ ~ u.. ~ .~ ~ U~ i J . --f.~ ' : I ~ f1lXJl PlAN I i . .....~ , . I . I I t!> Pol . ,I 113'1 SPACES ! i . " ._' :m:i: ::l:: III u ~ ~ ~ o H ~ ~ E-t 5 o u ~ H r:iI Z H Pol o 6. --- --- ......-..... 11:0_,- . 1<olUT_ 11 """'_ . tOflL Q,O' ~ GENERAl NOTES I(ETNOTES o KETNOTES 6 LEGEND PARICiNG ca.m 6TH fLOOR PLAN ~HYA" CLEARWATER BEACH RESORT AND SPA --" J5L.. ARCNTEcTe .........I\Aa........m.UWIt,."-......... -.zaoo............ .....v ~~~_ COLLMAN&KAI'lSKV ..." II.H.!OIM A305 I' I' .., (\.I ! I I i i i - I i ~Hf .~ :7+~ ..~ ~ .... ~ + ~ II.' ~II~ ~jr~ .~ ?,,~... r I! ! ! j ! ! ! i! ! ! i ! !! I I L ; Li L._oo_ooL._---.l--.-t-..-I._oo_oo-!--_.____+.t-I__..____L___L___ J, n--_OOj oo_oo~:"i .- i ii' ii' . i i i -j-: I' , , " , , , '--_,_1..1 . --t'---H'- , , . I --.-i' . : I ! :,-.-.--- '---, .-,-! I '-'-1 ----I --.-! !--:t I --'-1. ! '=:=i , ._--~ i ! ~ III i roo...w : I I ' , I .-!-.-+--- i i :i=:=i=:= -L_L._ : i I , i ! : I +---;-.- i! i , I . . I -~'-.f-.- i j . I i :=:=:I;;=:b;~:~j~i~:=:=:=;;=';=:~:'f:=::i=:=:f~~:~:~,:=:=:=#=:=:=:J:~:1~=::t:: ) I : Ii Iii! i Ii I I : '.~' II. .ll .~ + + 4- + .~ + ..~ Ii II" '.~' ..~' ~ ~ ~ ~. I ~ . ~ ~ ~ ~ i ...J ~ ~~ Pl.AH i j'l i t!> Pol 'I~ . LEVEljr. , ! I~ . LEVEL 4.~ I I J~' . "II!! lIl! ...'. ~I!II . . . . . - \0 0\ 0\ ('/') .-l .....1.4..4...,,,.,.1............ .; .. ~. ;. ;. .. -.. ".. ".. u ~ ~ ~ o H ~ ~ E-t 5 o u (J) ~ H r:iI Z H Pol o 6 ......- --- ..--...... c_-...,- GEHEllAl NOTES KETNOTES o KfTNOTES 6 LEGEND Q V.tllT~ .. tGTtl,. ~, ,..... II ID1'lL""""" IU lftl8.} PARKING CQJHT eTH FLOOII PI.AH NtWOIID MYAn CLEARWATER BEACH RESORT AND SPA -....~ ...../5L AACHlTECTe ... 'O"lUlallliM...._...."'~. a:I: .........,...~ ....~.....-.---...............- ..- COLLM^N&K^I'lSKV ..." OI.)&.lOO4 A306 (X) I' '" (\.I I i i , 1 i ~ w.. ~ ..~ i ~jrf .... ~ II~ ~ + ~ - ~ II~ <fj(~ .., ?~ ~ .~ P i! I ! ! ! ! ! i! ! ! 1 !!! ! r+---L1. ..~..~..L" l'.L,' .._.~_..+.._.._-!-..-t-'--!'_.'-"-+-"-"-i"r~'-"-"-l.---t,,-..-!-1 '. , I I ' , ._._++_ '---j i: ' . I ----i --.-H.- : i I I ,: '---1 '-'-n'---'-'- : II --.-! '-'-rr- .-.-1 , ''=''''~1''= --'-, i, --.-i '-'-iT'- : r~ I . I : i ' I . I I .L_~._ ~-_.-! .L_ '_._ '=:=j '1'-,=.- . : " . -_._~ ,.l-'~"_'_ i I ! ' : I ! 1 i -!--'-'r-'- i! i , I . I .!-.-+-.- i i i i ':-'-'r-'- ~ LL ... . -.... [' -- " "r" " .. .. ".J , :=:=:b';=;'=;~:~~=i~:=:=:=;:=:=:=:'f:=::j=:=:f:=:=:=r:=:=:=tp=:=:=:::!:=:b:=:=L:= J I 'I . , I' , I' I I I i i !, ! !, I ! ,! Iii . ....' .... il +..... + J. + -~ + ,,~ U ' .~' ,,~ -1 ~ .~ ~ 0 @l i 0 e ~ cb cb 6 ! ~~~ PlAN i I I t!> C4 \0 0\ 0\ ('/') .-l ~ III u ~ . ~ ~ o H ~ ~ E-t 5 o u fJ) ~ H r:iI Z H Pol GENfRAl. NOTES o ICETNOTES o 6 ICETNOTES 6 lEGEHD 7TH FlOOR PI.AH ......-.- MY.." CLEARWATER BEACH RESORT AND SPA .--.. J5L COLLMAN&KAI'lSKV AftCIoITECTa ....lJOG.ula........GD~......""_._-.za..._ ......~......-........----...- ..- ...,. - lJIf.16.1OO4 A307 0\ I' ~ (\.I t!> Pol \0 0\ 0\ ('/') .-l ~ III . u ~ ~ ~ o H ~ ~ E-t 5 o u ~ H ~ H Pol i i i i i i i I i ~ .-~ f .~ !~Jr~ .... ~ II.' f ' + ~ .... ~ II~ 9jr~ ... ?~.. ~ .~ ~ I ! 1 ! i ! ! ! i ! !.! i , !, ! ~--_--L._..-l..L1...L.._.._..L_.._.I-..:-t-"-!'-"_"+_"_"'+'H._n____1'---+------1., =11: i :i ' i I' ! T .! !l . , I !! ! , .1.. L ---_.J..--l...-'-H'- ----f i -- i -_.~. gj i i j I -1.+ +--.-H-- .-- . - , 'j i i r: ! !; '-'-:T' - -T'----n------'- I , '. ' ' I II i.!- _+.___.~._ '-'-,! - .! ._._' i._ '....'..."'1".. -~----'!t-- !' i, . 'i, i 0 i i: ,1 I . ,I ----It. '-'-','-'+'-'T'-'-' 'T'-'-rr'- !i i ! i j i roof i iLl!' i' i .---1+- -----~-_.t---+----- .+-~--i-.:- . i i ! . i i i i - -=:=j=f='. : -----'F---::b--.T.-.-- :=f=', 'r, :=f=, :=:: -----, '-', --. , ----- .---l-!-. .-.--L--+.__-!..____ -.!-.L__~._ :1 I ' I I: I I, , 1 ., ,I _ =I I . I I I: I " - I,. , I ' :! I 'I I !: ! . ----ft-- -----Tf-.-.+---#------ T+---r-- I' - i ! i 0 , I ' :1 , I ' I: I Ii ! i ! I 1 1 . .-.-#-. .---.-!-.-.t----!---.-- ++----/-.- ii i , i ! i i i i :' , :. I , I " i i i , :::~~E~~~~~:-~;;:::~::+;:~~:-:~~~~;;:=;;EE:[: ! ! i '/ ' 'I' , I' !! I 1 I .!' ! !,! ! '! I I I ~ r..~ ~"i ~ ." 4 ~ t ~ ~... ~ ~ r..~ W~ ~ i -'-. ani FlQJl PlAN i I ---,""'1....,., 1 GENERAl NOTES o KETNOTES o (;, KETNOTES 6 UGENO 8TH FLOOR PlAN ....... WAn CLEARWATER BEACH RESORT AND SPA J5L COLl MAN&KARSKY AACHIT&CT. GDMOClI'lAZallil:lll...............,........_.... -....0 .... ~_........-....-..~- ..- -- ...,. - 0I.H.2OCM A308 o (X) ~ (\.I , I , i i ... If... ~ "" ~ t!> Pol \0 0\ 0\ ('/') .-l ~ III u f;1 ~ ~ o H ~ ~ 8 u GENERAl NOTES o KETNOTES o 6 ~ETNOTES t:. lEGEND 11TH FLOOR PLAN I'IIGPOIIDtn"An . CLEARWATER BEACH RESORT AND SPA ~ H r:iI Z H Pol -... J5L ARCHITacTa ...uGI'LIlIl....aJIIClD..........................Nlr~ .....~~~- COLLMAN&KARSKV ""'" - 09.26.2004 A309 .-l <Xl ~ (\.I t!> Pol \0 0\ 0\ ('/') .-l ~ III u ~ ~ ~ o H ~ ~ E-t 5 o u ~ H r:iI Z H Pol 1 i , cp.4f ..~ I~+f"" ~ ..'. 7 -+ f.... ~ .... cp+~.~ ?w..~..~ ~ !! i! i ! ! ! i! ! ! i ! !! ! r+.-..L-'_._--l-.Lj...L--__----+-.----.!----t-n-!----_._-!-__..__.+.t-!---.----!--.-+..----!., ~:! :i.j I! ! T', !1 "I!! !, .-._,.L_ L._._; , ._.__-+.__~____++_ !i i : ~..!! 'i -i.+ ' - ~. '+--.-H.- .-. :,' ii-'ll, 'j II ~! !: .---:t- -T'---'r!'-'----- I , '. . ' I II --.~i..L.. _+'___"'__ : I ! I! 1+, '~'-'-:l:.r.- ''''''-1 , -T'---~ r'- ! i i . i ! i I ' --.-!t. ----T.-..t----T-.-- T'---rr'- . , I . , r--~ ! ii' I I: I i i j! ii' i --.-!+- '----f.---+---+.-.-. ++.-t-.- i i ! . ! !! ! '. -,=:='}',=f, : '-'-''F.-.L--T'-'-' :=r, :::F :='Fj := --'-', ---j;'--- , .-----. j 1 .-.--!-._-+.__-/-____. .-l-.~-_._.- .----:1' I ' 1 I: i !i i ! i i! i Ii i ! i i 1 i '---H-- '--Tf----.t-, .--tT-----. -t.L--t--- I' I ' " 'il ' ., . I ' : !i ! i ! i! i , --,-4-. ,---.l..-.t.-.L---. _+.~._.~._ !! i i i ! i i i . , I ' I , ! i I ' '---'iT'-r'---~-!' ----- ,.-,-.-.-t--.. ---'!-----.-t-. . . " -. . '1' -T','-r-'- l!.. ...;.. if "-r-"----r---+"-",------ool,,-oo----Ir----"---_oo_..-, , ~ :=:=:b';:;b;;::?~i~~::9:=:=:=:=t:=:+::=:r=:=:=:=r=:=:=:=tr=:=:=:d::=:b:=:=L:= !! ; 'I ' , I' . I' !! ! I Ii!' ! !.! ! '! I' I ~...~ .~I~ - ~ .~~ t ~ ..~~.... ~ ..~ ~r~~..~~ i ....i JoT/. FlOOR PlAN i i -'i........ I GENERAL NOTES o KETNOTES o 6 KETNOTES 6 LEGEND 10TH FlOOR PLAN 1I'flIQIItoaID.,.,.n ClEARWATER BEACH RESORT AM1 SPA _.. ..../:=L COI LMAN&KAI'lSKV ....CHITEcT. ..-'OOtIUlA........IIlO......"'.",.02 _.,.~ ....""l'~....... ...~_........~_ ..- 0t0J. - ot..JS..2ClO4 A310 (\.I co ~ (\.I t.!) Pol \0 0\ 0\ ('/') .-l ~ III U r:iI ~ ~ ~ o H ~ ~ E-t 5 o u ~ H r:iI Z H Pol GENERAl NOTES o KEYNOTES o tc:. KETNOTE~ tc:. LEGEND 1lTK FlOOR PLAN fIROIJOem HY4TT lEARWATER BEACH RESORT AND SPA --" J...L COLLMANUKARSKV AJOCHITECTa GDMGCItf\AlA....UliCD-.....'L.......-.a>>.,...~ .... - u. ...-...-.-....---.........._ ..- -- 04(1,).- - 09.1!I.HlO.t A311 ('/') CXl ~ (\.I I i I ! i ! (0) C!l i (i)llO). 0 (i) 1 (0) l!.> CDI (0) lD @) l!.> ! ~.. !.~ : ! r! - !. II~! "i'..! II~ f ..~ I r! ... ! ."! "" ~ !, 'I ! i! ! ! i! ! ! i ! !! ! I . L L1'..L - .-...L..-..-.I-..-t' -..-I.-..-n4._..-.....J..i-I._.._n_I._..l..._.._1. n"-" ..-.....,.. . .. . , I I ' " , , ~I:! ji'i Ii i r i '1 "1 ! i!, . -___}.L_ L.__-+ .-._.~.-..L-'-H'- , Iii I Iii: .-.-i+.' , , -+._--+1-- i i i i! .-.-:t. .t----'r+-'-'-'- I, . , : : I II It ''T''--'--~'- ----j!. .! .-.-' '.- ""'''=1+=_ '+'-'-*1"- ',i ! ' ! ! j I ----.t. .---T.-.-!-.--T---- 'r-'-rr-- i i i ! i i r"f ! i i ! i i! i --.-i+- :-.--~--+.-.+--.-. .+.1.-+-__ Ii. ! . i i I i '=:=jt=: '-'=:r.--J:.--=,=:=.=. :t=:f=:=f=:=:: ' '-' ,'-',--', " '. , .-.-it. .-.-..l.-.+.-.l.___. .t-L_.!_._ :1 I ' I I: I I. " I .. , , I , ' j! !! i!! ! I ! :! 1 I' I . I !: ! -_._ft-. , --.--it.-.-!-.-.tT-'---. 'rt---r--- I' D ,'! " D ' I ' .1 I I, , I., ,:: '/ ' i ,,' , . I "'0.", i ' I, I '----H-' -----+.--t--.J-.---. _+.~._+-__ ii ! ' ! i i i :- I ! I i I I :' .::E.E:=:~:f~=:~:-:.:~~:~::~:;;;::f:~~:::EE::[.: I I 'I ' 'I' , I' 1 I I Ii. !, ! !,! ! '! i i i '.~'.,,~ jJ + ,,~ + J, + + Ii ....' ,,~' cb~ ~ 8 @l i t) @ ~ ~4 4 i --1IJ FI.OO! PlAN i I ~'i""'~ I t!> Pol \0 0\ 0\ ('/') .-l ~ III U r:iI ~ ~ ~ o H ~ ~ E-t 5 o u ~ H ~ H Pol GENERAL IIOTES o Ic:ETNOTES o 6 KETNOTES 6 If(;fNO 12TH FlOOll PlAH PROPel-. NYAn ClEARWATER BEACH RESORT AND SP -" J5L ARCHITECTS ClDftNlllUU.~"_"""",,~_.aq,~_.,.-.am .... ~--_...... -.............- ..- COLLM^N&K^RSKV -,... ...... - 09.21.200<1 A312 qo <Xl qo (\.I ! i I ! i i i i ~.~~ .~ !'P+~ .~ f .~ ~ r f ... ~ "~ CPt~ .~ ?..~ "" ~ i i i i i i ! ! i! ! ! i ! !! ! r+----L"-"-:--H-+-----_ooL._.._.!-.--t----!.----..-J-'-"-"'__H'____"_!'___+.._.._I., ~: i il'j I! ! r! !1 "I !! 'j . ._._..L_ L._._. ' L._._.L_'-j-'_'l.._.__....l . .-.-...l.-.L-'-H.- , ! ! i' '--' ! i i! ! '_" ! j i i ._._~+- .---+.-.t--.+---.-j +.-.-++- i i H i i. i i i i ! --'-:1" r-.-.-.t-'-'+'--i'---'-; '1'.---.rt.-.-.-.- ! ' " I" , " .-.-i-!-- .-.-.!-.-.-t---.-!..-,-.-- _-!-.___.!-+._ J! I . ! i! !! !, '==.==I=!-. '='='~'-'f'''''''*'-='=' '*'''='='1=1''= 1 i i . i i i i: I' , ..L . , ,I .-.-: r .----r--' '-T-'-' 'r---rr'- I' , f . , r....:.J .1 1 ill: I ! i ! i i i 1 i . --.-!+. .-.-+.--t.-.+-.-- -++--.J-.- !i ! 1 i. Ii! . -=:=j'f" :=:=:f=:=:_:=:T:=:=: : : :;=:r'=F:=:: .' , I" '. , .-.-i-!-. --.-.!-.-+.-.-!-_.__ --!--L_.!_._ :, I 'I I I: I I, , I" , 1 . j! .. l&i5! ! i!! ! I ! --.-4.- H..~m._ .~._.*.--i._.4--._. I .+.~__+-._ I' , I ! I 'I ' :! , I . I: I !! ! i ! I! ! . .-.-++-. --.-...J-'-'T' .-../-.-.-. +-L--.J-.- :' 1 I ' ': . !! : 'I ' i ' I'! !, ! . I . I , I , I i I . --'-'If--'r'-'-'li ._-_.~.-._._-t-_.+, .--t-.-.---, '-'-. '1' -'-'--i.--t.J-:---t--- ..... . ------;--- I:---..----r-------r-oo -----r---..---l------oo- r---- "- :' :=:=:b'::;b:=:=;=ji=:=:=:=j:=:=:=:=r:=:i::=:f:=:=:=r-:=:=:=tt=--'._:I=l-_._L.- !! ;.j , , i' , j. '---'1'-'1'-'-,'- I I !' ! ,,! ! ,! i i i ~ ~~ ~ W~: ~ .~ ~ .~. ~ t ~ "" ~ "~ ~ u ~." ~ u ~ ! i -.J ,J FI.lXI! PlAN. i I ----,1........ I t!) Pol \0 0\ 0\ ('/') .-l ~ III U r:iI p:; ~ ~ o H ~ :>i E-< g U ~ H ~ H Pol GENERAL NOTES o KETNOTES o ~ KETNOTES ~ lE'ENO 13TH FlOOR PLAN ......... NY"" ARWATER BEACH RESORT AND SPA --...... J5L.. COLlMAN&KARSKV AIlCKTIICTa -lNIGfUI.a........IID...,..,....~.-..:z.~.H.>>-..uao ... W'Ldl", ~",,-.....- ~aIO ..- -- ...,. OI.B.lOIM A313 10 <Xl ~ (\.I i I . I ~ w.. f .~ I ~+f ~ f .... 7 r . ~ .~ ~ .~ cpjr~ .~ ?~ ~ .~ f !! I !i ! ! ! i! ! ! i ! !! ! ~l ~ Li .1.._.._..L._..-.I_..-t-..-I.-..-..4.-..-..+.j:-l._.._.._L_..l..._.._L, I :---.. j "-"-,' i .- i I' i T i '1 . , i ! i i ! . ._._~.L._ L._--r L._._.L_.t-._.1.._._..J. , .-.-..l.--.L.---H'- . ! i! I '..' i i i i i .... i!! i . ._.~+. .-.-+.-.t.-.+-.-.-/ +.-.-++- Ii ii ii' i i !i i i! '-'-It. r,-._.t'--+'-'i'-'-'~ -t'---'H'-'-'-'- " " I., , '. .-.-i-l- .-.-.L-.-.t-.-.-J..---. .-l.-.-U,- I! ! Ii!! I Ii ''''''''''''I~' ,-.......f=.=:f'='''f'''''',-, '~'''''''''''''M',= . ! I I ' I I I : I' , 1. ' , ,I . '-'-:T- '-'-'1'--' '-'T'-'-- -T----rr.- I' , I ' , r"~ ,I I i I I: I !! i i j '1 i . --.-!+. .-.-+---.t--.+-.-- ++._~.- !i . j 1 Iii ! '='=j'f" '=:=:'F:=:_:=:'T'=:=: :y:r=:='F'= .' , I,. '. , .-.-i-L-- .---..!-.-.t---.-!-.-.-- I. ..L-L-.!_._ :, I ' I I: I " " I., , I ' =I I I' I I I: , Ii i i! i i i! i . ----~. -j---.--lJ---.+---tf-.-.---; 'T' '~--' .- :1 " I', . r I,' I ,I I ',I " . , I', . .,~ i . . 1 . I I ~ i i i ' ._._.I-f-._'i-._._~-!r-._._.~._._._.+._.t._-L_._._L._._.-#_.-.-.4.-.+.L-_-i-.- !I i 'j ! ,,! ! .j i, i j jl I !' ! !!! ! . !! I Iii ' --.-.rt-'-'j-'-'-'-IL.-.-.-+-.-.-.+_.L_+._._._t-._._.-!+_ - - i '. , l!... -,.-,,----,,+,-oo----i'-"-"-r--"+"---r---"-"i---------fr-':- . . '-TT'-r'- o' :=:=:b;=:'=:=:=;=i~:=:=:=r=:=:=:T:=::i=:=:f:=:=:=f=:=:=:==+r=:=;:;J~1:=:=L:= !! 'j ' , i' , i' ! I I I I !' ! !,! ! .! Iii '.~'. jJ,,~ + ..~ + .l + + Ii .... '.~' >r# J> .~ {i 8 @J i ~ @J ~ ~ 4 ~ ! _ J ,.J FLrol PlAN i . ! -'''''1-.'~ I t!l Pol \0 0\ 0\ ('/') .-l ~ III u ~ ~ ~ o H ~ ~ E-t 8 u ~ H r:iI Z H Pol G[HEIlAl NOTES o KETIlOTES o {', KETNOTES 6 LEGEND 14TH FlOOR PlAN PIIDPOIIIt WATT ClEARWATER BEACH RESORT AND SP J=L COLLMAN&KAI'lSKV ARCHITECT. GO '-O">>lI\.Qal'llllllll......'......""'....e..............-.oD:I ...-. r..... ""A_......~_ ..- -- ...,. - M. H.2004 A314 \0 <Xl ~ (\.I C!) Pol \0 0\ 0\ ('/') .-l ~ III u ~ GENERAl NOTES ~ ~ o H 111 ~ E-t 8 u 00 ~ H ~ H Pol ~.~r W~ :j i " i ! I ~...-. .~ ... .4- r .~ r ... r.~r w.. r.~ T f I I i i i i i I --- I --- -- w::.w....... --- ....-... --- - -- 01 GUlFIiIEH DRIVE flEVATIlJI (HEST) -1ColUo....I'4' .... EXTERIoR B.EV A TIOH8 ~ MYATT LEARWATER BEACH RESORT AND SP -" J5"L _Te ..IIIGG.........~ ao....,.,....,...... e-.DI)............... ... .......................,~- ..- COLLMAN&KARSKV ...,. 0,.21.:1004 A400 I' CD ~ (\.I t!> Pol \0 0\ 0\ ('/') .-l ~ III u ~ GENERAL NOTES ~ ~ o H ~ ~ E-t 8 u 00 ~ H r:iI Z H Pol --- ~-= - --- --- --- - l' ~ cr CD ~~<p .~ - I - .~ i I ! i i j I I I 01 CORaWlO AVE, ElEVATot (EAST I LCtER PARlCINC; lEVEL _:IUI6~.r~ .... -- - EXTElUOJI ELEVATIONS ~H'fAn LEARWATER BEACH RESORT AND SPA -...... J=L COLLMANUKAI'lSKV ARCHnECTa ....aotfUM.....LII_.,......I'I..-.....-.......~ ....~ If II '"4IIr_......~ ..- ...,. 01.11.2004 A401 ~~.~r .~ f .~ ... ~ ~ cp .~ ~.-.~.~cp ~ i i I i I i i i i i ! i 1 I I I I I I I I ....- - I I I ! j I i i i i I ::;-- i j ! B__.... ... i i ..., I I I i i --- --- --- (Xl (Xl ~ (\.I l!> Pol -- \0 0\ 0\ ('/') .-l ~ ,,<~~'~::~::-=~~~~~::~:::"~~-=-~~~:'::.=:;:~-:'.=,'.:::=~~~.:~~~~--~.''-=- .. !-----! j'-.......j ~::~:j ....'--~_ ,.f.>.... ..,.0... ,.:.:.;~i'~:~'~.~:_=~~? -...-.-..- !--"--"--'1 ~ III ..!.~.~EVA~_ u ~ GlNERAl. NOTES ~ ~ o H ~ ~ E-t 8 u EXTEIIlClA ElEV A TION8 ~HYAn CLEARWATER BEACH RESORT AND SP ARCHITECT8 41ao-.f\.tDfIII1III'...........I\._._~....___ --..~......~~~~.- COLl-MAN&KAI'lSKV -./;:L ...,. ~ H ~ H Pol OI.21.zaot A402 i ! , --- .4 <f.~t...? ._r ~ i ! i ! I l I I ! j! I I l I i .~~~? i _ i i i I I i i .~ f "" '.411 1 !!! I !! ! I I I i i i I I I i I I i i ! ! m....= ==w.._. 0\ (Xl ~ (\.I ==--=-..... --- --- --...= --- Cl Pol -- \0 0\ 0\ ('/') .-l ~_''''''''V'''-''_ ~ ~. .._ 'd,~_~.._. V..~___..__.__ . ..- --.--.......~--..... n___'___'._n__._...__. __. ..... -"-....Il.&.r............/<,"'_ =-::.~. $ " ~ III ~R_._'~..~..i ~"'-'. 'I !--.....--, ; "I ~ .. . ..2!.~JJ~~AT~ u ~ GENERAl NOTES ~ ~ o H ~ ~ E-t 5 o u EXTERIOR REVATIONS PWOfIOB N't.n ClEARWATER BEACH RESORT AND SPA AJlCHIftcTa ...MlDGI'\ItIl.......I>>. ,......"....... -....ao 'l'I>>_ ........-....~......................- ..- COLLMAN&KARSKV J5L -..... 0"034 ~ H ~ H Pol - DI.a..lOCI" A403 o 0\ ~ (\.I t.!> Pol \0 0\ 0\ ('/') .-l ~ C!I u ~ GENfRAl NOTES ~ ~ o H ~ ~ E-t 8 u ~ H ~ H Pol ~ H' 0 1> i i ~,.., .:~ .:~,4 .~ II!'II !~I: I I I I , . ! '.Ar- 1 R'~ -!i .::,:! 0 '-I';! 0 "-!i '-,:! 0' -:, '-I'! lIT -: =!: ! 0 ]D ,. I . T 1: ]0 ~, .'. II'" i f1l JJ - i ! ! ! ! i~ .. : I i ... .J! .1m . ,Ia: ! .Ia: ! 'bJ..lT'm ~! ,L ; .~ i~ ~:~ j-"-l .:~ ~J ..r ~ I~I I I I 71 I ---r+..' ! l- T ! T ! -r 1 I ! T ! I : ' T' i 1 i ..r , i i ! I J Jl~ , CD, ! m, ! OJ. TTf !T~' -:::r r~~ II lID lmillm' ,...., tTI ..r l..,;i:~~ .. ....,... ~ II r'Tr' :ilIII]M ..2!..~~}~ ~TI(M 1: Iq ~ n ~ I~ n . I ! I I jO jCl JO I~ I~ In I~ In I GJ "" J h I I I I I I I I I I :- .! i I BUILDING llECTIONS NClf'aMD MYAn ClEARWATER BEACH RESORT AND SP --.. J5L COLLMAN&KAI'lSKV ~CTa ..MOCIt.............IllII..oIIlIN.l\......_____-...~ --~...........,~ ..- -- ..." --- 0I.26.H04 A500 ~.- ~' ~ WI ~ .)t~... J ..~ i ij j i ii i , I, , , " I , ~ .~ ~ I I I I I , I I o >>4' + .-# I i I I f W~ ~...,~ i !! I I I i i I ~ ,.. 1 I I ! I I !! I I i i i i i ! .-l 0\ ~ (\.I ),- ~L_ t!> Pol ~,- ~I.- \0 0\ 0\ ('/') .-l .. ~ ~ III .:.. ~L~ LOGITr- SECTDI u ~ GENERAl NOTES ~ ~ o H ~ ~ E-t 5 o u 00 ~ H r:iI Z H 01 BI.IILDING SECTIONS ~""An CLEARWATER BEACH RESORT AND SPA COLLMAN&XARSKV J5L ARCNTI!:CTe ...ao.:::~_-:.~.~~_.::=;..":..~ - -- ...,. IIt..lUIlO4 A501 t!j x 0- .... 0" .... rt n r I ! r ; f . c I . . 4 , I " . f ~ ; ) I I I~ lor 9 :$ <... 'v. ... -- ;....~I ...... ""... ~... ....... .... .... .... ......... 'ID.. .... .... ....... .... .- .- - ,~ I -... ...... 1. i LOT 10J I I .:5 'S , . ; I E . , I lOT 104 , . I - LOT 56 I I ..... ---- LOT '0 I , , ----1 , , __~or" I g ---: 6 lor " ! I 'i? -----J I , , wi ~I , 81 ~, ~ I "'I ~ f!E, '" ~I " ~ , ", 88 I. I -'- ----- I F:- M- I ~/' I '" · : ~...n f / LECEND : ./' : rs:--:.-t- ,....--. ,....--- , /' I 'i~~ M:_....+-- LOT-12 1/2/ lOT 105 "'- ~. --I ;; ..-....... -............. lOT 106 =-L.... ..-..:;.;.~..,i4t..if~ c'l Lor 107 ._.~ .. ~ ,.... yr ....,......,.,- ~. : . ~ I .. ~ "oP. "_:...t "'..OC'''T... ""'C. g --- .. .-. .......... - -- .... .....1IlJ....... hi .....___ 1:_ V" _ Marriott Ae.ort Development Cl..,w.t., Beach BOUNDARY SURVEY j , I .-- ~~~~~~~...... ra:= :\c-'::-.~~~"'''I:.:~"",ftrt _II. .......wc---=_..................... - -.......... ---........ -... ~;~--=::IUt_Il...a,. ==:-'.=.:. ":. V :r,;; .::.1 iiiiiii~..ew" ...... - .....- -......- -.. -.....-.........18 ......... -. .. -" -.."............... ~.... -. .. -" ..-.......-4afuc. NI =~-;..::~~=.,.,~':.-:.-::.':.-:.. ..... -IC... _lID.. ................ &It .. ~ .. -... --. ....." ac..." =-=::r~=:\f=.:c~~=.." -Ul~".".IIIL1_._ -- \. ....... -...... · -. ac_. . c-. .....-...................... ---- 1 um8II__ _................,..... =-=::~~E::5il..~ ~~ ~-c::.-=--_"'-.'1':'= ~..=. ...-----~...- ..to.....-Irr --.. -..... ":..-;-:: ..... .. =-=-=:-~ :..~--- -=:.r.:::=-.n. . -.--. --...... ~ K......._.__._....... =s~&'&::.r-=s:. ... . -..... .. .....----....-....-... --- '- --- -..... -...... --. ~ .... ........... --- .. -. .. .... , .........._~.......-...-.- ~ --............ ..."............ ... - -..."...... . -..... --- .... ..... .... ,.,.... . ...... ...... .... .... ...,... . .. --... - -..... .......... -.... -. -...... r. '--............. IAIJk .. -....--.~----fta..c.__ "- -----...... -.,....-...:.. -........ ~-r=--=--~-.:=-.:.::...~.-I ... ---............ .... ..-.. .. ..._~_..."---.....'" -- -.--.~IIC. CDrMI:a1( . ....... ... II _ IIUM ..--.. ... ...-. --....- "iir ":" 1 't1 H ~ t'l ~ () ~ t-3 ~ I'Ij t'l o I'Ij I'Ij ~ () b:l ~ I-' W \0 \0 0\ 't1 Q f\) ,., \0 f\) ..-1- Pl ~ ::r' .... 0" .... rt n 5{CTOril . - lo.SWIP l' - 1I"Nc;( t, EASl .. .... fur :uo ....... ... u. / .. UI /.~ Lit &II ... .... 111 ..." / I I / / .. "'fU'l ... a._"" ... .. .. ,.. ... ... ~.. UJ ~ i . . i i ! i ~ LEGEND ....--........ ... ....---- C._ ~;,.--...... _.- .......--- ,........... ...._W_............. -ret.::::.... D -.-...___ .............. -- e,- I J ~ ..'..c.....~.;_ . '. .:+:'ll ... .~~~,'.~~;;:. "'....Oc."'y.... _co g --- -~--=- ::c-~ -- ~_...... -~ Marriott Rllort Oevel4pment CI..rweter .e.ch TOPOQRAPHICSURVEY ". ""'IJJ'_ ( .. IJJ'_ I 1 ... , I , I I , ..J LOT. 1.0,,, t 1-.... _ :~." f) !4q<J' , ., . I~ . , , I I'd H Z t>:l t'i E I " " ,~'~e-J.I , I (1 o ~ 8 t-< I'lj t'i o I'lj I'lj , , I _ ~__ f ~nr j; )i .... !i fI. ,.. , I ! ".-.., ...~~!.-.:!''''-.......f..r....~~-~!"!_~''-.......' , , ".....It' i."---~ , , I . . . . , ~..-..... . .. . . , , , , , , UJ 1 Lor'r I ... ( ---J ~ J :-7 r ---.: 1! ,! i! at_ .- ..- .. .. , i 1.0"'2 'n I , ..I . , JI d, l!' ~I I: if '" r ~I sl ~. 8j -.-...., 1.0' IJ J .. I UI, --1 ..--~----.,,- .. ..............-- d___.._. -.......u-.....a_... - -"............. Ie -.-....,. --.:..... -----....... ==~-:--~;:.c::..':: .-IlU"u",~.__""",,, ....,...... ......._-~ ~-..:.-~:r=-==:r-=.. .... ... "".. -...... -..... ... ....-=--........ -- .._.,..._-~....-.. ::'':.-:'s:=-.,:u.. -- ..",..1......_........-.- - ....,..~....... .........- .......1lIC. . .... . . , I . LOt 57 '... I , . ~'U.II". : i , --...-_ i I 'M ----....:_1 ,- I ... .!'-..-.--..... ------ r.... .::'/ i I.Or 105 I .........- '''}-....... .:.......... lOr Sf : I .. ~~.. t~oo LOT 10 ~Lor I:~r.a.. .l.Or ,. 1Io...._....~ lOllOJ tor :04 ~ (1 III ~ --- ...... W \0 \0 0\ I'd Ii) j . IS . . I Ii::.." . -. . .... I\) ~ \0 W ,~ 'N 1-- ....... - -- -....... --... ..... --..... Il__.......... .......,"-...~-.._-- iil~=~=~, = :".:;.pt~ t:f'.::r,::=. =---: ::-..-"'-:u.:=. -:.."='~... =:r.=.:. ~":. -=............ -.- e.-.. :.=...... ~ -L- -L- - a.. on '" = c:r.> .,.., on .,.., <0 <:> :z: ........ '" on 00"": .....U> ~........ go- lL_ . .. La "'~ ~ '- .,= 0= ~ '" 1::- ~- ~ .,ii 0\ iI ~ (\.I t!) ~; Pol c:~.. \0 '~6 0\ f. 0\ N~ ('/') ~~ ...- .-l O~ g. ~ olp:; III ~~ -. N.... u ~.!! r:iI i~ ll: .~~ ~ ~I ~ Il<I:!!, 0 ::IE ...... H l:W ~ t:i " ~ I S ~ 0 S tJ ~ ~ S H ~ r:iI if: Z H Pol HYATT CLEARWATER BEACH RESORT HOTS. PRELIMINARY PROJECT SCHEDULE ID 1 2 3 Tille Name MID D A110H 0esIgn CcInIdIrt 8efedIat 8egrn DeaVt ",.... - Sc:heIhelk PIJase o.Jgn Devwlap..-r P'-e CGnsIrucIJan Dacurn.c...... ~ eo..tn.c8onCumpeny. u.c Pag. I 1) SEPTEMBER 24,2004 ~ ~ "" ,.Q "" .c ~ ~ PlNELLAS COUNTY FL OFF. REC. BK 13996 PG 2495 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 COnlmunity 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 . Beachwa1k: 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 of the allocation of bonus resort units to Clearwater and the designation of Clearwater Beach as a Community Redevelopment District, which rights, duties, obligations and responsibilities shall be binding on any and all successors and assigns and will run with the title to the Real Property. THEREFORE, in consideration of the covenants and restrictions herein set forth and to be observed and performed, and in further consideration of the allocation of bonus resort units to 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 Preoare and Imolement a Trio 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 of this Declaration. TPA:345813:1 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2496 Exhibit E 2.1 Trio Generation Manae:ement Proe:ram. Beachwalk Resort, LLC shall prepare a Trip Generation Management Program which includes, at a minimum, the progran;t 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. Govemine: Law. This Declaration shall be construed in accordance with and governed by the laws ofthe State of Florida. 5. Recordine:. This Declaration shall be recorded in the chain of title of the Real Property with the Clerk of the Courts of Pine lIas County, Florida. 6. Attorneys Fees. Beachwalk Resort, LLC shall reimburse the City o~ 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 circwnstance will be or is declared to any extent to be invalid or unenforceable, the remainder of this Declaration, or the application of such provision or portion thereof to any person or circumstance, shall not be affected thereby, and each and every other provision of this Declaration shall be valid and enforceable to the fullest extent permitted by law. IN WITNESS WHEREOF, Beachwalk Resort, LLC has caused this Declaration of Covenants and Restrictions to be executed this 10#\ day ofue..ent.b.e.Y ,2004. Signed and sealed and delivered in the presence of: k1::~A/ Beachwalk Resort, LLC, a Florida limited liability company By: Clearwater Beach Resort, LLC, a Florida limited liability company, Managing Member .~~ ( . aub, . Managing Member TPA:345813:1 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2497 Exhibit E , STATE OF FLORIDA ) ) COUNTY OF PINELLAS ) This instrument was acknowledged before me this~daY of ~ 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~ }y rlOiv~ No Public State of Florida My commission expires: R-eBI n ~ H. Dd.u d-l- ~ ReginI Ill, DeWItt \: ~; ~.Com,I""'" 00315373 " EllPhI MIy oz. 2008 TPA:345813:1 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2498 Exhibit E EXHffiIT 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 bv Desim 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 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2499 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 I()~ day of )\;(7&h,h..cnr ,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 ...Qy. - 36 , passed and approved onJI'&1l~.:1 ~~eveloper'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 PlNELLAS COUNTY FL OFF. REC. BK 13996 PG 2500 consideration, the sufficiency of which is hereby acknowledged, Developer hereby declares, covenants and agrees as follows: 1. Benefit and Enforcement. These covenants and restrictions are made for the benefit of Developer and its successors and assigns and shall be enforceable by them and also for the benefit of the residents of the City 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 provisions of this Declaration. 2.1 Use. The use of the resort on the Real Property is restricted as follows: 2.1.1 A minimum of two hundred 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 lmorovements 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 TPA:345468:1 PlNELLAS COUNTY FL OFF. REC. BK 13996 PG 2501 hurricane watch. In the event that the National Hurricane Center shall modify the terminology employed to warn of the approach of hurricane force winds, the closure and evacuation provisions of this Declaration shall be governed by the level of wamlng employed by the National Hurricane Center which precedes the issuance of a forecast of probable landfall in order to ensure that the guests, visitors and employees will be evacuated 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 the Hotel is a part ("Project") 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 Govemina Law. This Declaration shall be construed in accordance with and governed by the laws of the State of Florida. 5 Record inc. This Declaration sh~1I 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 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2502 IN WITNESS WHEREOF, Developer has caused this Declaration to be executed this , day of 2004. Signed, sealed and delivered in the presence of: 4~ . Print Name:' U+t.s~ 'TY-e~h~-r WI/; ~ Print N~ ~".. BEACHWALK RESORT, LLC., a Florida limited liability company By: Clearwater Beach Resort, LLC, a Florida limited liability company, Managing Member ~~ C; ~~aging Member STATE OF FLORIDA COUNTY OF PINELLAS ".Df Thi~rument was acknowledged before me this J {J~ day of ~ ern.. y 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 identifiCalR)lI. ~ ' -- , /1t .J r1tu~ No ry ~, State of Florida My commission expires: <<~e'~a.. H. f:~j.)j(~ TPA:345468:1 ~ .... M. DeWlII . . ~ CommIIIlon D031A73 \; ~ EllplIw __ 02. 2008 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2503 APPROVALS & PERMIT LIST · Piling & foundation pennit · Demolition permit · Site alteration/drainage pennit · Utility relocation permit · Vacation condition & replat approval · Building permits package -- ----,----..------o.-Stnrc1Ul'a1--.... . .n, o Mechanical o Electrical o Plumbing · Beach hnprovements pennits o CCCL permit -from Florida Beaches and Shores o. Utility & Drainage pennit - 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) E:chib11: G ~ o 10 (\.I t!l Pol \0 0\ 0\ ('/') .-l ~ III . .J U r:iI ~ '.... .' ~ .. --------...: ' . . --:...::. ---- ~ ~ o H ~ ~ E-t 8 u tIl j H r:iI Z H Pol t: lID ~I Jr t17 - /); .. "I : w - ... ; ~ & ... ; - . !.~ - .. II PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2505 Exhibit I Appraisal Instructions Typically, an appraisal of this type will use three appraisal methods, separately assessing Comparable Sales Value, Income Approach, (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 323.2.1. 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 --------~y!!f:_~mt s~!t~_each -actiD-9-p-rU..d.entlY-I-JmQ.w'-edgea~and..asSUmin9.tbapricejs__ ....___._~_..___~ 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 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2506 Exhibit 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 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2507 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 ~W ,20cJ.t (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 ~e City of Clearwater (the "City") are parties to that certain development Agreement dated ~ ~ 20~ (the "Development Agreement'') pursuant to which the City has agreed that Owner may deve op 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 acknowledged, Owner does hereby agree that the Property shall be developed and operated as a unified mixed-use project such that the residential hotel unif!; constructed upon the Property shall be occupied and ~ a single hotel. Th. e restrictions set forth in the preceding sentence shall survive for a period of ~ (:J.cl 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, lU1J'elated 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 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2508 Exhibit J IN WITNESS WHEREOF, the undersigned has executed this Covenant effective the day and year first above written. ~ Print Name:U 1I\k- ~.~ (!...l Y'~d{,-r rl.~::f1t::::-r~<U" BEACHW ALK RESORTS, LLC, a Florida limited liability company By: Clearwater Beach Resort, LLC, a Florida Limited liability company, Managing Member ~.~~ . ... /' B' aub, Managing Member STATEOFF~AJI COUNTY OF ~ tl.'5 The foregoing instrument was acknowledged before me this / D~daY of February, 2001, by Brian Taub, as Managing Member of CLEARWATER BEACH RESORTS, LLC, a Florida limited liability company, Managi~g. Mem~er .~f BEACHW ALK RE~~~~~ ; ~~: H;::tp,: liabili~ company, on behalf of the hrmted hablhty company, who 1 I ,. or ."s produced as identification. ~3~- n"hLU~ N Y PUBLIC Name: Serial No. My Conunission expires: ~-e S ,,,' D..... N. J:u..W,tf 1/) RegIna M, DeWItt ;'c ""; _ConwnIulon 00311373 ... , ExpftI ~ 02. 2008 TPA:34S820: 1 ..c PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2509 Exhibit K J~ . THIS LICENSE AGREEMENT, made and entered into thlsiday of::.bte~ 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 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2510 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 Riahts. 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 ClealWater Beach. 6. Hours of Ooeration. The Beach Service Facility shall be open at normal periods of beach use. 7. Ooeration 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. Assianment. 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 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2511 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. Comoliance with Government Reaulations. 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:34SB23:1 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2512 AVlZ to form: City Attorney's Office TPA:345823: 1 Exhibit K -4- ~~r;fftff:::.!~-;q:- City Manager ~ ~ [: )L.. Q~a. Ci lerk BEACHWALK RESORT, LLC, a Florida limited liability company By: Clearwater Beach Resort, LLC, a Florida limited liability company, Managing Member ~ B' aub, '..~ anaging Member PlNELLAS COUNTY FL OFF. REC. BK 13996 PG 2513 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. PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2514 Exhibit L HYATT CLEARWATER BEACH RSORT BEACH CONCESSION CRITERIA QUALITY STANDARDS FURNITURE (l00) Chaise lounge Manufacturer: Tropitone Spinnaker chaise IOWlge chair with anns (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 resistantllN resistant) CUSTOM BEACH CABANAS _78tt X 64tt X 64tt (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 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2515 (., r ,f. " i. 'i ~\ ' ~' ~. "~~~"':~.i'14Ii.:...';\. 159924 Dining Chair, stackable .... .~~/":. ... . <.:. ..... ~, 26'1/2"W x 27'1/2"0 x 32'1/4"Hit' ..i.':"~. ;'1" '.';W'~"'...". . i 'I. . ..H'n.. .' .~~ '\:: 1 .. ~,~ \..:: ~-;, { IF',,....,.~,:~. '~.. '. .t.'It".~.,-,,,,,\\::~1I. (..",:"",,..~ ... ; .',- ~i~ ;:~ ~{ ~, i ~~...'.. ~i ff ~ i 159924 Dining Chairs. stacked ~ l 159901 Dining Chair with high back 26-1/2"W x 3.2-1/4"0 x 39-1/4"H It ~.. !~-".. ~1. , ."\1'. .. '. ' fl. [i , ',:;..''''' . " .~ .,' . ,,' '.~""....I.). ;,~~~., '. ,'. . ..,~'.:;;."..' ' -- J.." . " Jt....... . .. f'-.~ . .; ,......;". : ~-' -',';..' "11,),.~,,,,:":'ll t' ,~~. 'j'5993o Swivel Rocker "Ultra Action" {24-1/4"W x 26.t/4'O x 33.t/4"H '159903 Swivel Rocker "Ultra Action" JWith high back ,24-1/4"W x 30"0 x 42-1/4'H .. ~:.. .' f! J .... 159916N Double Glider with high back 50.l/2"W x 32"0 X 39'S/S"H - ."':'".f.::~..,,,,, .,. .~IJ~ ffJ~~'r~tt. ~ 159932 Chaise lounges, nested f....'.:.'........... f.r'~ I'" (. .... ~. ..' I: 4', , . ~'59932 Chaise'lOUnge. nesting '\29'3/4"W x 79:3/4"Down 'Seat Height: 15'1/2" f'. '-. ",";":<~" .;:"/- :.; ,f I \ ..' ..' ! 159933 Chaise Lounge, stackable 28"W x 79'3/4"Down , Seat Height: 15'1/2" PlNELLAS COUNTY FL OFF. REC. BK 13996 PG 2516 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 Constroct S. Gulfview detour & Coronado 12 months April 2006 Improvements Constroct 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 proiect clean-up & Grand Ooenine 4 months November 2008 PlNELLAS COUNTY FL OFF. REC. BK 13996 PG 2517 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 TPA:34543 1:2 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 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2518 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 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2519 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 unique 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 hannony with the theme of the property. e. LobbylRegistration 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: I. 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: ExcelIent 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 PlNELLAS COUNTY FL OFF. REC. BK 13996 PG 2520 Exhibit N a. Free Floor Space: Obvious degree of spaciousness allowing increased ease of movement for guests. b. Floor Coverings: Excellent qualitycazpet, 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 annoire. 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: I. Excellent quality plush towels; oversized. 11. Facial tissues of excellent quality in decorative container. iii. Free-standing hair dryer. iv. Bathroom area rug. TPA:34S431 ;2 PlNELLAS COUNTY FL OFF. REC. BK 13996 PG 2521 Exhibit N v. Make-up mirror. VI. Telephone. Compliance Assessment Initial Ratine 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 Monitorine of Compliance with Minimum Oualitv 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:34S431 :2 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2522 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 hoteVresort industry with regard to the compliance ofthe Hotel with the Upgrade Requirement. Failure to ComDlv In the event that a Rating Service Quality Report, an Independent Quality Assessment or the opinion of an independent expert in hoteVresort 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 hoteVresort industry expert that the Hotel continues to meet the Upgrade Requirement every two (2) years after the default is cured until the expiration or tennination 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:34543I :2 PINELLAS COUNTY FL OFF. REC. BK 13996 PG 2523 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. R~ewesuDOnEventofDefuutt 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 r~ain uncured. In the event that an Event of Default occurs, the accumulated tines shall be a lien against the Hotel component of the Developer's Property which may, at the City's sole discretion, be enforced through a foreclosure proceeding. TPA:345431 :2 PlNELLAS COUNTY FL OFF. REC. BK 13996 PG 2524 ..~ --- Exhibit 0 Parking Rate Comparables 2004 Visitor Parking Garage Com parables Location Hourlv Rate Dailv Rate Miami Beach $1/hr_lsl. 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 $11hr $6 Max Hollywood $S 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