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DVA2009-00004
0 0 DVA2009-00004 311 S GULFVIEW BLVD URF STYLE PARKING GARAG PLANNER OF RECORD: WW ATLAS # 276A ZONING: T LAND USE: RFH RECEIVED: INCOMPLETE: COMPLETE: MAPS: 09/01/2009 PHOTOS: STAFF REPORT: DRC: CDB: CLW CoverSheet .h h??? Planning Department l/1/' 100 South Myrtle Avenue Clearwater, Florida 33756 may, ?y Telephone: 727-562-4567 Fax: 727-562-4865 ? SUBMIT ORIGINAL SIGNED AND NOTARIZED APPLICATION ? SUBMIT 12 COPIES OF THE ORIGINAL APPLICATION including folded site plans ? SUBMIT APPLICATION FEE $ CASE #: DATE RECEIVED: RECEIVED BY (staff initials): ATLAS PAGE #: ZONING DISTRICT: LAND USE CLASSIFICATION: ZONING & LAND USE CLASSIFICATION OF ADJACENT PROPERTIES: NORTH: SOUTH: WEST: EAST: DEVELOPMENT AGREEMENT APPLICATION (Revised 05/22/02) PLEASE TYPE OR PRINT- A. APPLICANT, PROPERTY OWNER AND AGENT INFORMATION: (Section 4-202.A) APPLICANT NAME: L.O.M., Inc. MAILING ADDRESS: 4100 N. 28th Terrace, Hollywood, FL 33020 PHONE NUMBER: 954-926-6666 FAX NUMBER954-608-2565 CELL NUMBER: EMAIL ADDRESS: PROPERTY OWNER(S): L.O.M., Inc. (Must include ALL owners) AGENT NAME: Alex L. Azan, P.E. MAILING ADDRESS: 14001 63rd Way North, Clearwater, FI 33760 PHONE NUMBER: 813-205-3615 FAX NUMBER: B. PROPOSED DEVELOPMENT INFORMATION: .f M1 I. STREET ADDRESS: 311 Gulfview Blvd. & 320 Coronado Drive, Clearwater, FL 33767 I :. .... .LI j ? ?? Y rte C? . LEGAL DESCRIPTION: See Attachment A Jt y 0 '" " - PARCEL NUMBER: 07-29-15-52380-000-0600, 07-29-15-52380-000-1100 -' - `U PARCEL SIZE: 0.99 acres, 43,543 SF I ? 3(?Ts, square feet) PROPOSED USE AND SIZE: 34f-space parking garage, retail store and restaurant (number of dwelling units, hotel rooms or square footage of nonresidential use) DESCRIPTION OF ANY RELATED REQUEST(S): See Attachment B (approval of a developmentinclude all requested code deviations; e.g. reduction in required number of parking spaces, specific use, etc.) DOES THIS APPLICATION INVOLVE THE TRANSFER OF DEVELOPMENT RIGHTS (TDR), A P VIOUSLY APPRUVED PLANNtU UNI I DEVELOPMENT, OR A PREVIOUSLY APPROVED (CERTIFIED) SITE PLAN? YES NO (if yes, attach a copy of the applicable documents) Page 1 of 5 - Development Agreement Application - City of Clearwater 9 0 B.2 DEVELOPMENT AGREEMENTS SUPPLEMENTAL SUBMITTAL REQUIREMENTS: (Section 4-606.6) An application for approval of a development agreement shall be accompanied by the following (use separate sheets or include in a formal report): ? STATEMENT OF THE REQUESTED DURATION OF THE DEVELOPMENT AGREEMENT,WHICH SHALL NOT EXCEED TEN YEARS ? DESCRIPTION OF ALL EXISTING AND PROPOSED PUBLIC FACILITIES AND SERVICES THAT SERVE OR WILL SERVE THE DEVELOPMENT; ? DESCRIPTION OF THE USES DESIRED TO BE PERMITTED ON THE LAND, INCLUDING POPULATION DENSITIES AND BUILDING INTENSITIES AND HEIGHTS; ? INDENTIFICATION OF ZONING DISTRICT CHANGES, CODE AMENDMENTS THAT WILL BE REQUIRED IF THE PROPOSED DEVELOPME PROPOSAL WERE TO BE APPROVED; ? ZONING AND LAND USE CATEGORIES OF ALL ADJOINING PROPERTIES; ? COMPLETE NAMES AND ADDRESSES OF ALL OWNERS OR PROPERTIES ABUTTING OR LYING WITHIN 200 FEET OF THE SUBJECT PROPERTY AS CURRENTLY LISTED IN THE COUNTY RECORDS AS OF ONE WEEK PRIOR TO THE FILING OF AN APPLICATION. C. PROOF OF OWNERSHIP: (Section 4-202.A) ?---- T SUBMIT A COPY OF THE TITLE OR DEED TO THE PROPERTY OR PROVIDE OWNER SIGNATURE ON PAGE OF THIS APRtq `ICA711? D. WRITTEN SUBMITTAL REQUIREMENTS: (Section 4-606.G) C ? Provide the following contents to the development agreement, as follows: 2 Contents. The approved development agreement shall contain, at a minimum, the following information: I C7 ?....s a. A legal description of the land subject to the development agreement. fly _.. b. The names of all persons having legal or equitable ownership of the land. % c. The duration of the development agreement, which shall not exceed ten years. n_; W d. The development uses proposed for the land, including population densities, building intensities and building height. e. A description of the public facilities and services that will serve the development, including who shall provide such public faciliti s and..servicest;- I date any new public facilities and services, if needed, will be constructed; who shall bear the expense of construction of any new publi- ilitc ac" ies ai services; and a schedule to assure that the public facilities and services are available concurrent with the impacts of the development. TI development agreement shall provide for a cashier's check, a payment and performance bond or letter of credit in the amount of 115 percent of tl estimated cost of the public facilities and services, to be deposited with the city to secure construction of any new public facilities and servio required to be constructed by the development agreement. The development agreement shall provide that such construction shall be complete prior to the issuance of any certificate of occupancy. f. A description of any reservation or dedication of land for public purposes. g. A description of all local development approvals approved or needed to be approved for the development. h. A finding that the development approvals as proposed is consistent with the comprehensive plan and the community development cod Additionally, a finding that the requirements for concurrency as set forth in Article 4 Division 10 of these regulations have been satisfied. i. A description of any conditions, terms, restrictions or other requirements determined to be necessary by the city commission for the public heall safety or welfare of the citizens of the City of Clearwater. Such conditions, terms, restrictions or other requirements may be supplemental requirements in existing codes or ordinances of the city. j. A statement indicating that the failure of the development agreement to address a particular permit, condition, term or restriction shall not retie, the developer of the necessity of complying with the law governing said permitting requirements, conditions, terms or restrictions. k. The development agreement may provide, in the discretion of the City Commission, that the entire development or any phase thereof I commenced or be completed within a specific period of time. The development agreement may provide for liquidated damages, the denial of Tutu development approvals, the termination of the development agreement, or the withholding of certificates of occupancy for the failure of tl developer to comply with any such deadline. 1. A statement that the burdens of the development agreement shall be binding upon, and the benefits of the development agreement shall inure 1 all successors in interest to the parties to the development agreement. m. All development agreements shall specifically state that subsequently adopted ordinances and codes of the city which are of general application not governing the development of land shall be applicable to the lands subject to the development agreement, and that such modifications a specifically anticipated in the development agreement. I G ? LU w L,3 LLJ 0 Page 2 of 5 - Development Agreement Application - City of Clearwater 0 0 E. SUPPLEMENTAL SUBMITTAL REQUIREMENTS: (Section 4-202.A) ? SIGNED AND SEALED SURVEY (including legal description of property) - One original and 12 copies; ? COPY OF RECORDED PLAT, as applicable; ? PRELIMINARY PLAT, as required; X LOCATION MAP OF THE PROPERTY. TREE SURVEY (including existing trees on site and within 25' of the adjacent site, by species, size (DBH 4" or greater), and location, including drip lines.) wl GRADING PLAN, as applicable; F. SITE PLAN SUBMITTAL REQUIREMENTS: (Section 4-202.A) SITE PLAN with the following information (not to exceed 24" x 36"): _ All dimensions; _ North arrow; Engineering bar scale (minimum scale one inch equals 50 feet), and date prepared; Location map; Index sheet referencing individual sheets included in package; Footprint and size of all buildings and structures; All required setbacks; All existing and proposed points of access; All required sight triangles; _ Identification of environmentally unique areas, such as watercourses, wetlands, tree masses, and specimen trees, including description and location of understory, ground cover vegetation and wildlife habitats, etc; Location of all public and private easements; Location of all street rights-of-way within and adjacent to the site; Location of existing public and private utilities, including fire hydrants, storm and sanitary sewer lines, manholes and lift stations, gas and water lines; All parking spaces, driveways, loading areas and vehicular use areas; Depiction by shading or crosshatching of all required parking lot interior landscaped areas; _ Location of all refuse collection facilities and all required screening (min. 10'x12' clear space); Location of all landscape material; _ Location of all onsite and offsite storm-water management facilities; Location of all outdoor lighting fixtures; and Location of all existing and proposed sidewalks. SITE DATA TABLE for existing, required, and proposed development, in written/tabular form: Land area in square feet and acres; Number of dwelling units proposed; Gross floor area devoted to each use; Parking spaces: total number, presented in tabular form with the number of required spaces; Total paved area, including all paved parking spaces and driveways, expressed in square feet and percentage of the paved vehicular area; Size and species of all landscape material; Official records book and page numbers of all existing utility easement; Building and structure heights Impermeable surface ratio (I.S.R.); and Floor area ratio (F.A.R.) for all nonresidential uses. ? REDUCED SITE PLAN to scale (8 % X 11) and color rendering if possible; ? FOR DEVELOPMENTS OVER ONE ACRE, provide the following additional information on site plan: One-foot contours or spot elevations on site; Offsite elevations if required to evaluate the proposed stormwater management for the parcel; All open space areas; Location of all earth or water retaining walls and earth berms; Lot lines and building lines (dimensioned); Streets and drives (dimensioned); Building and structural setbacks (dimensioned); Structural overhangs; Tree Inventory; prepared by a "certified arborist", of all trees 8" DBH or greater, reflecting size, canopy (drip I 0 ? E 0 ? '?-- -- tai U I`r es)-and ?o?ndlJn of!s?ch 1.. __ . Page 3 of 5 - Development Agreement Application - City of Clearwater G. LANDSCAPING PLAN SUBMITTAL REQUIREMENTS: (Section 4-1102.A) !, s K _ LANDSCAPE PLAN: § ?---' All existing and proposed structures; ? L4? L ? '-? ?1' •; . _ I Names of abutting streets; ^ LC r ` Drainage and retention areas including swales, side slopes and bottom elevations; t `i ! U? I_ i _ Delineation and dimensions of all required perimeter landscape buffers; ? Sight visibility triangles; - Delineation and dimensions of all parking areas including landscaping islands and curbing; C.7) vi U_ 0 s Z> _ Proposed and required parking spaces; "- - _ Existing trees on-site and immediately adjacent to the site, by species, size and locations, including dripline; 3- :- Location, size, description, specifications and quantities of all existing and proposed landscape materials, incl Wvb. tanical and .u common names; b- --?--` y V Typical planting details for trees, palms, shrubs and ground cover plants including instructions, soil mixes, bad in f wing ndn — protective measures; I -_.. _ Interior landscaping areas hatched and/or shaded and labeled and interior landscape coverage, expressing in`bldth-9401057eet an 1c-°+` percentage covered; Conditions of a previous development approval (e.g. conditions imposed by the Community Development Board); Irrigation notes. ? REDUCED LANDSCAPE PLAN to scale (8 %X 11) (color rendering if possible); ? IRRIGATION PLAN (required for level two and three approval); ? COMPREHENSIVE LANDSCAPE PROGRAM application, as applicable. H. BUILDING ELEVATION PLAN SUBMITTAL REQUIREMENTS: (Section 4-202.A.23) Required in the event the application includes a development where design standards are in issue (e.g. Tourist and Downtown Districts) or as part of a Comprehensive Infill Redevelopment Project or a Residential Infill Project. BUILDING ELEVATION DRAWINGS - all sides of all buildings including height dimensions, colors and materials; REDUCED BUILDING ELEVATIONS - four sides of building with colors and materials to scale (8'/2 X 11) (black and white and color rendering, if possible) as required. 1. SIGNAGE: (Division 19. SIGNS / Section 3-1806) Ca?T'??NhfGlvsiv? J,v ASP. 76 8,F ? Comprehensive Sign Program application, as applicable (separate application and fee required). ? Reduced signage proposal (8 '/ X 11) (color), if submitting Comprehensive Sign Program application. J. TRAFFIC IMPACT STUDY: (Section 4-801.C) Include as required if proposed development will degrade the acceptable level of service for any roadway as adopted in the Comprehensive Plan. Trip generation shall be based on the most recent edition of the Institute of Transportation Engineer's Trip General Manual. Refer to Section 4-801 C of the Community Development Code for exceptions to this requirement. K. SIGNATURE: I, the undersigned, acknowledge that all representations made in this application are true and accurate to the best of my knowledge and authorize City representatives to visit and photograph the property described in this application. Signature of property er or representative STATE OF FLORIDA, COUNTY OFQWEAA.®$ VYO"4,r-d S orn to and subscribed befo a this ) I day of NO , r A.D. 20re to me and/or by who is nay known has produced as identificatio NOTARY PUBLIC-STATE OF RIDA Lauren Weeks , Commission # DD6 4429 Notary public, - . , s: DEC. 30 2010 My commission expiresIll;O , D BONDED THRL Ailkl; HC BONDING 0., INc. Page 4 of 5 - Development Agreement Application - City of Clearwater L. AFFIDAVIT TO AUTHORIZE AGENT: 4 ? (Names of all property owners) 1. That (I am/we are) the owner(s) and record title holder(s) of the following described property (address or general location): 2. That this property constitutes the property for which a request for a: (describe request) ) f 3. That the undersigned (has/have) appointed and (does/do) appoint: as (his/their) agent(s) to execute any petitions or other documents necessary to affect such petition; 4. That this affidavit has been executed to induce the City of Clearwater, Florida to consider and act on the above described property; 5. That site visits to the property are necessary by City representatives in order to process this application and the owner authorizes City representatives to visit and photograph the property described in this application; 6. That (I/we), the undersigned authority, hereby certify that the foregoing is true and correct. ?P" A0 Property Owner Property Owner STATE OF FLORIDA, COUNTYOF?tld>'L'CRS -bYO"a Before me the undersigned, an officer duly commissioned by th laws of Ille State of Florida, on this I I day of NwMi2ey , ? personally appeared ( V who h ing been first duly sworn Deposes and says that he/she fully understands the contents of the affidavit that he/she signed. NOTARY pumic-STATE OF FLORID Notary Public My Commission Expires:12.1.7, 011 Co Lauren Weeks Commission # DD614429 '•.,,, ,,,? t _ni es: DEC. 30, 2010 NG CO., S:1Planning DepartmentlApplication Forrnsldevelopment reviewldevelopment agreement application3.doc Pu l l f? ?J pr t ?_? l? i Vol w? V LLJ Page 5 of 5 - Development Agreement Application - City of Clearwater I#:`2005468543 BK: 14759 PG: 315,0/23/2005 $10.00 D DOC STAMP COLLECTION $5425.00 KEN COUNTY, FL BY DEPUTY CLERK: CLKDM03 O cL?^ WARRAWN DEED Repued By end RUMRN p: DrM W. Griffin, P.A. 565 South Dineen Avenue Clarnrer.FL 33756 (727) 466-M role (727) 4669777 Fa M2 /28,431 THIS INDENTURE, rrw.r.r rr. r.s ti.a• rr r.r o..+. n-.i ?n--rr.. rrrr ? 0" M. rwpirr?ies.Yb? r M+e, re.r.rr?. •rw• ?.a r.rr r r r. ?awod e wYr Made this WT* day of Between at 08:52 AM, RECORDING 1 PAGE BURKE, CLERK OF COURT PINELLAS EVELYN L. GIBSON, a single woman, whose address is: 77840, party of the first part, and NOVEMBER, A.D. 2005 105 Houk, College Station, ;Fyx9r iL.O.M., INC., a Florida corporation, whose mailing address is: 4100N. 28" Terrace, Hollywood, Florida 33020, party of the second part, - - Witnesseth, that the said party of the first part, for and in consideratioi>,of (he sum o> Ten Dollars and other good and valuable considerations, to it in hand paid by the sW4aof the second part, the receipt whereof is hereby acknowledged, has grantukfirgabW a k gold to the said party of the second part forever, the following described Ind, situbA l?yla?being in the County of Pinellas, State of Florida, to wit: Lot 110, LLOYD-WHITE-SKINNER SUBDI SION, aFco(d3tij to the plat thereof as recorded in Plat Book 13, Pages 12 rind 13, Pub4eRecords of Pinellas Courrty Florida. ' Parcel Identification No.: QZ ?? Z J? - - 1100 a/k/a 320 Coronado Drive, Elparwater Bf?hqh, Florida 33767 % And, the Grantor hereby coveflamts ry3tb said Grantee that the Grantor is lawfully seized of said land in fee simple; that the 6 Antorha:i &6'4 right and lawful authority to sell and convey said land; that the Grantor here6yTullly Vacrants the title to said land and will defend the same against the lawful claims vf,a At Mons whomsoever; and that said land is free of all encumbrances, except yt of 8ocrbimg s,Wsequent to December 31, 2004 and easements and restrictions of record. ' In WitneuVkt?edf, dw s d party of the first part has caused these presents to be signed the day d,y4qar above, % WE SON, Power of A 01 ptl>t?N?E ker?a+ , Witness STATE OF TEXAS COUNTY OF _ae&QS The foregoing instrument was acknowledged before me this 14" day ofNovember, 2005 by LAURA L WILSON, Power of Attorney for EVELYN L. GIBSON, who is personally known 19 to me or erpicture I.D. ti ratio den WIMIWI tC" 6-00 f4Btart?fe?, saa a *Col-ww bon My C s' , c,; i a; w.o BA.BARA Rnmz ol-T , Notary Public Me - it . . Vii' • ? ? j - Q k r -- , W r. ? 4. c ) is z i a - W, U. 2191 - g a r LIJ Warranty Deed 0n6vWL" INST # 95-269932 OCT 25, 1995 4:37PM PINELLAS COUNTY FLA. OFF.REC.BK 9144 PG 1151 RE'I'UBN TO &. Donald 0. McFarW4 Esquire t PREPARED BY. McFarbv4 Gould, Lamm i 8uMvaq, PJL 3118. Missouri Avenue Clearwater, Florida 94616 Tex Parod No. Parcel l: 07-20-15-52880-000-0600 ` 300 01773 COS 10-25-1995 16:26:03 ??% K"EWM Parcel 2: 07-29.16.628800(0.0810 Parcel 8: 07-29.1662860000.0820 am m Parcel 4: 07.29-16.62880.0001080 Xx STW - DR219 3 7---- Parcel 6: 07.29-16.62880-000.1080 TOTAL: ) g,66o.so CFEIg MT. TENDERED: !13.660.50 d , GssnWe Now W.H. Neudeck a/k/a WmD*d H. Neudeck CNRNGEt Grantee's Naas L.O.M., INC., a Florida corporation ' - _ Property Address: 809, all, 815 and 819 Gultidew Blvd., South, Clearwater, Florida; and 811 and 816 Coronado Street, Clearwater, Florida % 13: REC0KM1%.i ?. RliC_io.sy V% DAS teas WARRANIpY.DZ .%rIF , M.. - , N1:V This 16denAu r, made this day f,Octnber,. .,19P5, Betawsa, W.H. Neudeck a/ltla Winfred H. Neudech, a married man, whose prat anky,addnas jap 107 Mamto road, Bell ix. . N.4-7M..S41,,r- as x4616 (heminajbe>?,; --rir,d.to ap?tm-nme), yll11• LO.M.. INC., a Florida aorporodon, whose post office addrfeja ia: ,[88#h dalVy imnue, Clearwater, Florida 84890 (hemna*, referred to at ' Orarnke? ' WIT71TB.9:S8`T'H, 7'V;u +atd'Cjr6W, for and in ewuideration of at sum of TM AND 001100'S (;10.00) Dallas and othfrgood ami(Aguable coa idenation to said Grant or in hand paid by sold Grants, the receipt whereof ii {?*AY 0*0ud'4Pd, has gmnted, bargained and sold to the Gnnnatee and Grnntee'i G a' and assignees foNi Se follauing described land situaI4 lying and being in Book , page Coun&, „? B I I Lot 60, 42' and 62; AND, the Southerly one half MY 112) of Lot 107 and all of ItW 108 and 109, LLOYD-WHITE-SWNNER SUBDIVISION, % acFOrdi?to nutp or plat thereof as recorded in Phu Book 18, pages 12 % ?, _ % awd 18; all of the Public Records of Pinellas County, Florida. SUBJECT 8 ? . ? PROPERTY IS COMIERCIAL PBOPEATY AND NOT THE 1 ' - OMES'I'EAD PROPERTY OF THE GRANTOR HB'$FM S?JWt to Real p>nperty taxes for Merear 1891E and subsequent years. Sukket goal/ easement, msenra on, r+l?jtnctuma, and cournants of record. And said Gronbr dam hesetly fury tsarr+ant the title b acid load, and Mill sir/icnd the some ggaias A' 1\` lwful slams of all persons whams. a? •, 4 Il 'Grantor'' and 'Grantee' are used for singular or plural, as eonhw requires. ?Y:x F»J° c, v PINELLAS COUNTY FLA. OFF.REC.HK 9144 PG 1152 A?W1 mw wmcm . OfUntor bas hereunto at Gm9ar's band and seal Nis d v andyw rise about written. w # ZVIL-Nwdwk :a Win&W IL Nsudsci, > Print ! , , ` Witness #2 - Print Name;_ ??? t?u.,?.r-(ri ; KATE OF FLORIDA , , - 00UhI'1Y OF PDORA g fO7eiol?iB insbus+ent was aeknaeu/tdged btjore nx thrs a _d dq? of petaber,1, by W.H. Naudcck alkla Wlnf)rd H. Na desk, whadWam persoNalb bream la me or who has produced a dr4W@ lkenx ar idensAvadompmtokom , / e K0-tml twic Notary Please Print Nam ? ? • ` ?` ?`jcn t (fie i?e w?ci MY Csmmissian Es?eEE ; ro Cammi,don xnmu.;/' cc ? i3??Si j (REAL) °&e'°p?K?aRr seu ?WCNAKNOW CARPE R Mm"N NUMBER '??IFt? Mr 313411 'ON EXP. ?/, a19 „op 2`7-2/ J 1 111 UJ CJ7 „ _ a i t f ?J i.L. fr • CLEARWATER, CITY OF CLEARWATER, CITY OF CRYSTAL BEACH CAPITAL LLC P O BOX 4748 P O BOX 4748 101 E KENNEDY BLVD STE 2125 CLEARWATER FL 33758 - 4748 CLEARWATER FL 33758 - 4748 TAMPA FL 33602 - 5189 CRYSTAL BEACH CAPITAL LLC 101 E KENNEDY BLVD STE 2125 TAMPA FL 33602 - 5189 LOMINC 4100 N 28TH TERR HOLLYWOOD FL 33020 - 1116 LUCCA DEVELOPMENT LLC 9011 S NATOMA AVE OAK LAWN IL 60453 - 1466 CRYSTAL BEACH CAPITAL LLC 101 E KENNEDY BLVD STE 2125 TAMPA FL 33602 - 5189 LUCCA DEVELOPMENT LLC 9011 S NATOMA AVE OAK LAWN IL 60453 - 1466 KOZIK, ROBERT KOZIK, GIOVANNI 317 CORONADO DR CLEARWATER FL 33767 - 2433 R T V PROPERTIES INC 331 CORONADO DR CLEARWATER FL 33767 - 2433 TROPICANA RESORT LAND TRUST 300 HAMDEN DR CLEARWATER FL 33767 - 2448 CLEARWATER, CITY OF PO BOX 4748 CLEARWATER FL 33758 - 4748 TROPICANA RESORT LAND TRUST 300 HAMDEN DR CLEARWATER FL 33767 - 2448 HARVEY, MARY C REVOCABLE TRUST 2 SEASIDE LN BELLEAIR FL 33756 - SZLECHTA, WLODZIMIERZ KUNOWSKA, EWA 333 CORONADO DR CLEARWATER FL 33767 - 2433 FLAMINGO BAY CONDO DEVELOPERS 300 HAMDEN DR CLEARWATER FL 33767 - 2448 LOMINC 4100 N 28TH TER HOLLYWOOD FL 33020 - 1116 TROPICANA RESORT LAND TRUST 300 HAMDEN DR CLEARWATER FL 33767 - 2448 KALLAS,DORA KALLAS, GEORGE 3405 GULF BLVD BELLEAIR BCH FL 33786 - 3644 TROPICANA RESORT LAND TRUST 300 HAMDEN DR CLEARWATER FL 33767 - 2448 ;l 9 AGREEMENT FOR DEVELOPMENT OF PROPERTY IN THE CITY OF CLEARWATER (SURF STYLE CONDOMINIUM PROJECT) between THE CITY OF CLEARWATER, FLORIDA and a_ L.O.M., INC.` ?4 u?J ua , ?- Jul -? a c? Dated as of 2010 v6 MIA 180692234 Table Of Contents Article 1. DEFINITIONS ................................................................................................2 1.01 Definitions .........................................................................................................2 1.02 Use of Words and Phrases ................................................................................4 1.03 Florida Statutes .................................................................................................5 Article 2. PURPOSE AND DESCRIPTION OF PROJECT ............................................5 2.01 Finding of Public Purpose and Benefit ...............................................................5 2.02 Purpose of Agreement .......................................................................................5 2.03 Scope of the Project ..........................................................................................5 2.04 Cooperation of the Parties .................................................................................7 Article 3. REGULATORY PROCESS ............................................................................7 3.01 Land Development Regulations ........ ............................................................... ..7 3.02 Development Approvals and Permits ........................................ -:-,?- . ..7 3.03 Concurrency ..................................... ................ .............._>... ........... U .. 8 Article 4. PLANS AND SPECIFICATIONS ... ........................? ......'....`?.Q............ ..9 4.01 Plans and Specifications . . .. ?rn:'j Ui Article 5. PROJECT DEVELOPMENT ......... ? .......................a ,......:....:0 10 5.01 Ownership of Property ...................... ...................... L .....-- , ? 10 5.02 City's Obligations .............................. am ............ .......................... . ?............ ... ...... .,.,._. 10 5.03 Obligations of the Developer . ........... ........................ .. ? ............ 10 Article 6. PROJECT FINANCING ................ ............................................................... 11 6.01 Financing .......................................... ............................................................... 11 6.02 Notice of Project Financing to City .... ............................................................... 11 6.03 Copy of Default Notice to City ........... ............................................................... 12 Article 7. INDEMNIFICATION .....................................................................................12 7.01 Indemnification by the Developer ....................................................................12 7.02 Indemnification by the City ..............................................................................12 7.03 Limitation of Indemnification ............................................................................13 Article 8. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DEVELOPER ...............................................................................................14 8.01 Representations and Warranties .....................................................................14 8.02 Covenants .......................................................................................................15 Article 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CITY .............................................................................................................16 9.01 Representations and Warranties .....................................................................16 v6 MIA 180692234 tl .? • C7 9.02 Covenants .......................................................................................................17 Article 10. CONDITIONS PRECEDENT .......................................................................18 10.01 Construction of Project ....................................................................................18 10.02 Responsibilities of the Parties for Conditions Precedent .................................18 Article 11. DEFAULT; TERMINATION ..........................................................................18 11.01 Project Default by the Developer .....................................................................18 11.02 Default by the City ...........................................................................................20 11.03 Obligations, Rights and Remedies Cumulative .................................................21 11.04 Non-Action on Failure to Observe Provisions of this Agreement ..................... 21 11.05 Termination ......................................................................................................21 11.06 Termination Certificate ....................................................................................22 Article 12. ARBITRATION ............................................................................................ 23 12.01 Agreement to Arbitrate .................................................................................... 23 12.02 Appointment of Arbitrators ............................................................................... 23 12.03 General Procedures ........................................................................................ 24 12.04 Majority Rule .................................................................................................... 24 12.05 Replacement of Arbitrator ................................................................................ 25 12.06 Decision of Arbitrators ..................................................................................... 25 12.07 Expense of Arbitration ..................................................................................... 25 12.08 Accelerated Arbitration .................................................................................... 25 12.09 Applicable Law ................................................................................................ 26 12.10 Arbitration Proceedings and Records .............................................................. 26 Article 13. UNAVOIDABLE DELAY ...............................................................................26 13.01 Unavoidable Delay ..........................................................................................26 Article 14. FIRE OR OTHER CASUALTY; CONDEMNATION ......................................27 14.01 Loss or Damage to Project ..................................................................•...........27 14.02 Partial Loss or Damage to Project ...................................................................28 14.03 Project Insurance Proceeds ............................................................................28 14.04 Notice of Loss or Damage to Project ...............................................................29 14.05 Condemnation of Project or Property; Application of Proceeds ....................... 29 11 Article 15. MISCELLANEOUS ...................................................................................... 9-° 15.01 Assignments .................................................................................................... 2?9 15.02 Successors and Assigns .............3, ,?;; .................................................................... 15.03 Notices ............................................................................................................3 y 15.04 Applicable Law and Construction 311 .................................................................... 15.05 Venue; Submission to Jurisdiction. 3'' ?f 15.06 Estoppel Certificates ........................................................................................32? 15.07 Complete Agreement; Amendments. 32'? 15.08 Captions .312'`9 r ......................................................................................................... 15.09 Holidays ...........................................................................................................313 v6 MIA 180692234 15.10 Exhibits ............................................................................................................33 15.11 No Brokers .......................................................................................................33 15.12 Not an Agent of City ........................................................................................33 15.13 Memorandum of Development Agreement ......................................................33 15.14 Public Purpose ................................................................................................33 15.15 No General Obligation .....................................................................................33 15.16 Other Requirements of State Law ...................................................................33 15.17 Technical Amendments ...................................................................................34 15.18 Term; Expiration; Certificate ............................................................................34 15.19 Approvals Not Unreasonably Withheld ............................................................34 15.20 Waiver of Jury Trial ..........................................................................................35 15.21 Effective Date ..................................................................................................35 EXHIBITS Legal Description of Property .......................................................................................... A Conceptual Plans for Project .......................................................................................... B Right-of-Way Area to be Vacated ................................................................................... C Form of Condominium Documents ................................................................................. D Public Parking Covenant ................................................................................................. E Maintenance Easement .................................................................................................. F Sidewalk and Turn-Lane Easement ................................................................................G List of Required Permits and Approvals .......................................................................... H Project Development Schedule .........................................................................................I City Parking Garage Standards .......................................................................................J Parking Structure Maintenance Standards ..................................................................... K „PUT" Agreement Form ...................................................................................................L Form of Memorandum of Agreement for Development of Property ................................M D F f_o" -- I I 1,01V U ? e?}9 DE`JEi ?JPi ENT SEr1 VIC' __ DEPT Cli'Y CUF CLEARWATER v6 MIA 180692234 , f • • AGREEMENT FOR DEVELOPMENT OF PROPERTY (SURF STYLE CONDOMINIUM PROJECT) This Agreement for Development of Property (Surf Style Condominium Project) (the "Agreement") is made as of this day of , 2010, by and between THE CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation (the "City"), and L.O.M., Inc., a Florida corporation (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 construction of Beach Walk and the removal and replacement of surface parking spaces located to the west of South Gulfview Boulevard 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, the City desires to encourage and provide for the construction of 301 public parking spaces; WHEREAS, the Developer proposes to develop a multi-use project on certain real property located on South Gulfview Boulevard and legally described in Exhibit A attached hereto (the "Propert y"), and has proposed to include at least three hundred and forty nine (349) parking spaces in the project, of which at least three hundred one (301) spaces shall be open to the public; WHEREAS, it is necessary that the City take certain actions in order to make it possible for the Developer to develop the Property 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; i 1 v6 MIA 180692234 ?(} 9 0 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 , 2010, the City Council approved this Agreement and authorized and directed its execution by the appropriate officials of the City; and WHEREAS, the shareholders and/or directors (as appropriate) of the Developer have approved this Agreement and have 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. For purposes of this Agreement, the following terms defined in this Article 1 shall have the meanings attributed to them below except as herein otherwise expressly provided: (1) "Agreement" means this Agreement for Development of Property (Surf Style Condominium Project), including any Exhibits and any amendments thereto. (2) "Agreement Expiration Certificate" means the certificate confirming the completion of all obligations under this Agreement and expiration of the term of this Agreement required under Section 15.18, upon the request of either party. (3) "Applicable Laws" means any law, enactment, statute, code, ordinance, administrative order, charter, tariff, resolution, order, rule, regulation, guideline, judgment, decree, writ, injunction, franchise, permit, certificate, license, authorization, . or other direction or requirement of any Governmental Authority, political subdivision, or any division or department thereof, now existing or hereafter enacted, adopted, promulgated, entered, or issued. (4) "Beach by Design" or "Plan" means the strategic redevelopment plan for Clearwater Beach dated 2001 which was adopted by the City Council pursuant to the provisions of the Pinellas County Planning Councils Rules for the designation of a Community Redevelopment District, as amended. (5) "Break Wall" shall have the meaning given to it in Section 2.03(4). (6) (7) v6 MIA 180692234 "C?" means the City of Clearwater, Florida, a Florida municipal corporation. "City Council" means the governing body of the City 2 0 -EnR?0T J il P! NOV d .. DEVE!-OPMENT SLi- iCL3 3 DEPT G= ?'? OF CLEARWAT ER I I I 1 0 0 (8) "City Parking Garage Standards" means the City's standards for the construction of City-owned public parking facilities, which standards are attached hereto as Exhibit J. (9) "Commencement Date" means the date on which Developer commences or causes a contractor to commence construction (see Section 5.03(4)), which date shall occur on or before June 30, 2010. (10) "Completion Date" means the date on which a temporary or final certificate of occupancy required for the Project is issued, which date shall be no later than twenty-four (24) months following the Commencement Date. (11) "Conceptual Plans" means the conceptual plans for the Project approved by the parties attached hereto as Exhibit B. (12) "Developer" means, for the purposes of this Agreement, L.O.M., Inc., a Florida corporation and its successors and assigns as provided in Article 15. (13) "Effective Date" means the date of approval and final execution of the Agreement by the parties. (14) "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 Agreement. (15) "Expiration Date" means the date which is five (5) years following the Completion Date. (16) "Flood Zone Change" shall have the meaning given to it in Section 2.03(4). (17) "Governmental Authority' means any federal, state, county, municipal or other governmental entity or any instrumentality of any of them, having jurisdiction over the Project. (18) "Land Development Regulations" means the Community Development Code, Comprehensive Plan, Beach by Design and related regulations applicable to the development of the Project in the City of Clearwater. (19) "Parking Unit" shall have the meaning given to it in Section 2.03(1). (20) "Permits" means all land development approvals, permits and consents required to be granted, awarded, issued, or given by any Governmental Authority under any Applicable Laws in order for construction of the 3 v6 MIA 180692234 NOV ! ^ r. L D .. EVEL 'rvl Nfi SEhVICc3 DEPT ' UJ w? w f r` f. E?D 0 i1J 0 Q p O.. U J U Q 9 0 Project, or any part thereof, to commence, continue or be completed. The term Permits shall include FEMA's approval of the Flood Zone Change. (21) "Plans and Specifications" means the site plan for the Project to be filed with the City as required by the Land Development Regulations for the purpose of review and approval. (22) "Project" means, generally, the development and construction of a 38,249+/- square foot retail/commercial project with 48 parking spaces, and a commercial parking garage containing approximately 301 parking spaces open to the public, as described in Section 2.03(1) of this Agreement. The Project will consist of the Retail Unit(s) and the Parking Unit, as more particularly described in this Agreement. (23) "Project Financing" shall have the meaning given to it in Section 6.01. (24) "Project Lender" shall have the meaning given to it in Section 6.01. (25) "Propert y" means that certain property located at 315 S. Gulf View Boulevard and 320 Coronado Drive, Clearwater, FL 33767, which is owned by the Developer or an affiliate or nominee on the Effective Date of this Agreement (see Section 5.01), which Property is more particularly described in the legal description attached as Exhibit A to this Agreement. (26) "Put Agreement" shall have the meaning given to it in Section 6.01. (27) "Retail Unit(s)" shall have the meaning given to it in Section 2.03(1). (28) "Termination Date" means the date a termination certificate is issued pursuant to Article 11. (29) "Unavoidable Delay" means a delay as described in Article 13 hereof. (30) "Vacation of Right-of-Way" means the abandonment of the eastern half of the existing right-of-way of South Gulfview Boulevard (approximately 35' in width) adjacent to the Property by the City, in order that the goals and objectives of the Comprehensive Plan may be better accomplished. The 35' right-of-way area proposed to be vacated is graphically depicted in Exhibit C attached hereto. 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. 4 v6 MIA 180692234 1.03 Florida Statutes. All references herein to Florida Statutes are to Florida Statutes (2009), as amended from time to time. ARTICLE 2. PURPOSE AND DESCRIPTION OF PROJECT. 2.01 Finding of Public Purpose and Benefit. The proposed Project, 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 Land Development Regulations of the City of Clearwater, (2) to conform to the provisions of Applicable Laws, (3) to be in the best interests of the citizens of the City, (4) to further the purposes and objectives of the City, (5) to further the public interest on Clearwater Beach, and (6) to implement Beach by Design for South Gulfview Boulevard. 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 Property and increase the available public parking, all to enhance the quality of life and improve the aesthetic and useful enjoyment of Clearwater Beach and the City, all in accordance with and in furtherance of the Land Development Regulations of the City of Clearwater and as authorized by and in accordance with the provisions of Applicable Laws. 2.03 Scope of the Project. (1) Description of Project. The Project shall include a commercial parking garage, private parking, commercial and retail uses and appropriate .., accessory uses and shall be developed in substantial conformity with the w Conceptual Plans. The Project shall consist of a six-story commercial ° building on the Property comprised of the following: ?? U 3; a Retail Units : 38,249+/- square foot retail/commercial units on the ' a U} ground floor of the building consisting of approximately 31,421 ?- v square feet of retail space and 6,828 square feet of restaurant w U. space, together with a delivery area and approximately 48 parking L' 2 ° spaces on the second floor of the building (collectively, the "Retail Units "). Notwithstanding the designation of a portion of the Project as a "Retail Unit", the name alone shall not restrict its use, as the Retail Unit(s) may be used for any lawful purpose (b) Parking Unit: 301 parking spaces located on the 2nd through 6th floors of the building (the "Parking Unit"). (2) Formation of Condominium. The Developer intends to create a three-unit commercial condominium for the Project consisting of the above- described Parking Unit and two (2) Retail Units, one of which will include 6,828 square feet of restaurant space and the other of which will include the remainder of the Retail Unit as described above (i.e., approximately 31,421 square feet of retail space, 48 parking spaces and the delivery area). Accordingly, no later than the Completion Date, the Developer shall 5 V6 MIA 180692234 .S • • submit the Property to the condominium form of ownership pursuant Chapter 718 of the Florida Statutes and condominium documents in substantially the form attached hereto as Exhibit D. (3) Parking Covenant. No later than the Completion Date, the Developer shall execute, deliver and record a covenant against the Property in the Public Records of Pinellas County, Florida, which covenant shall require that the Project and any future development on the Property include not less than 301 parking spaces available for public parking to the extent permitted by Applicable Laws, provided that the City (and/or any other applicable Governmental Authority) issues a license or permit (as required by Applicable Law) to the then fee owner of the Property and/or the Parking Unit, as applicable (or its designated parking operator) to operate such parking spaces. The requirement for public parking shall apply to the Project and future developments on the property from the date of the certificate of occupancy for the Project and such future developments (as applicable) for the duration of existence of the improvements covered by such certificate of occupancy. The foregoing parking covenant shall be in substantially the form of the covenant attached to this Agreement as Exhibit E. (4) ac x F s' La R?. z v ?. ED =j 2 o tn_ 0 w ?U a FEMA Map Revision: The parties hereto acknowledge and agree that the Developer is currently processing a letter of map revision with FEMA to change the flood zone for the Property from VE to AE (the "Flood Zone Change"). The City agrees to cooperate with the Developer and FEMA requirements in order to accomplish the Flood Zone Change. Specifically, the City will (a) comply with any requirement for the construction and on- going maintenance of a so-called "wave dissipating wall" (the "Break Wall") on the City property lying west of the Property to the east of Gulfview Boulevard along the promenade, (b) as the fee owner of the property upon which the Break Wall will be constructed, submit the letter of map revision to FEMA supporting the Flood Zone Change, (c) advertise the Flood Zone Change as required by Applicable Law, and (d) in conjunction with LOM, process the Flood Zone Change in accordance with the requirements set forth by FEMA in its Conditional Letter of Map Revision. The Developer will be responsible for and pay all costs associated with the Flood Zone Change, including the cost of construction and on-going maintenance of the Break Wall. (5) Maintenance Easement: The City has provided or will provide an easement for construction of, access to and from, and maintenance of, the Break Wall, which easement shall be appurtenant to one or both of the Retail Unit(s) and shall grant the fee owner of the Retail Unit(s) the perpetual right to maintain the Break Wall in accordance with the requirements of FEMA and any other applicable Governmental Authority. The foregoing easement shall be in substantially the form of the easement v6 MIA 180692234 6 attached to this Agreement as Exhibit F, and shall be in the location indicated in said exhibit. (6) Sidewalk and Turn-Lane Easement. On or before the Completion Date, the Developer will provide an easement for a sidewalk and turn-lane encumbering the Property on the east side thereof along Coronado Drive. The foregoing easement shall be in substantially the form of the easement attached to this Agreement as Exhibit G, and shall be in the location indicated in said exhibit. In the event of a conflict between the terms of this Agreement and the terms of the specific instruments attached to this Agreement as Exhibits D, E, F or G with respect to the subject matter of such instruments, the terms of such instruments, which are more specific and detailed as to the subject matter thereof, shall control 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. The Property is designated Tourist District in the City's Land Development Regulations. 3.02 Development Approvals and Permits. (1) a r. !u c?tt e?x . Ul O C, C) o t= UU LLI v6 MIA 180692234 Applications for Development Approval. The Developer shall prepare and submit to the appropriate Governmental Authority, including the appropriate divisions and boards of the City, applications for approval of all Plans and Specifications necessary for the Project, and shall bear all costs of preparing such applications, applying for and obtaining such permits, including payment of any and all applicable application, inspection, regulatory and impact fees or charges (if any). The City shall, to the extent possible, review and process the foregoing applications and permits on an expedited basis. A list of all permits and approvals required to implement the provisions of this Agreement is attached as Exhibit H. The failure of this Agreement to address a particular permit, condition, term or restriction shall not relieve the Developer of the necessity of complying with the law governing said permitting requirements, conditions, terms or restrictions. 7 • • (2) Schedule. A Project Development Schedule is attached to this Agreement as Exhibit I that identifies specific tasks to be completed through the entire Project and the proposed date for completion. (3) City Cooperation and Assistance. The City shall cooperate with the Developer in obtaining all necessary Permits required for the construction, completion and opening for business of the Project. If requested by the Developer and authorized by law, the City will join in any application for any Permit, or, alternatively, recommend to and urge any Governmental Authority that such Permit or Permits be issued or approved, to the extent that the work covered by such Permit(s) is not in violation of the terms of this Agreement. (4) City Authority Preserved. The City's duties, obligations, or responsibilities under any section of this Agreement, specifically including, but not limited to, this Section 3.02, shall not affect the City's right, duty, obligation, authority and power to act in its governmental or regulatory capacity in accordance with applicable laws, ordinances, codes or other building regulations. Notwithstanding any other provision of this Agreement, any required permitting, licensing or other regulatory approvals by the City shall be subject to the established procedures and substantive requirements of the City with respect to review and permitting of a project of a similar or comparable nature, size and scope. In no event shall the City, due to any provision of this Agreement, be obligated to take any action concerning regulatory approvals except through its established procedures and in accordance with applicable provisions of law. (5) Impact Fees. The City shall use its best efforts to secure or provide any lawfully available credits against impact fees applicable to the Project which are authorized under existing laws and regulations for public improvements constructed and paid for by the Developer. In the event that the City is unable to secure a credit against any impact fees, the City shall use its best efforts, within the limits of Applicable Laws, to allocate impact fees collected from the Developer to other improvements in the immediate vicinity of the Property. [lJnderReview] 3.03 Concurrency. w ( l?_J U ? U c? ?? ? ® . w' U a a W 0 Concurrency Required. The parties hereto recognize and acknowledge that Florida law (specifically, Part II, Chapter 163, Florida Statutes, and Rule 9J-5, Florida Administrative Code) 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 that it may be required to satisfy the concurrency requirements of Florida law 8 v6 MIA 180692234 , .1 0 9 and the City's regulations as applied to this Project (if applicable) as part of the regulatory approval process for the Project. (2) Reservation of Capacity. The City hereby agrees and acknowledges that as of the Effective Date of this Agreement, the Project satisfies the concurrency requirements of Applicable Laws. The City agrees to reserve the required capacity in public services to serve the Project for the Developer and to maintain such capacity until January 30, 2014. The City recognizes and acknowledges that the Developer will rely upon such reservation in proceeding with the Project. (3) Required Public Facilities. In addition to the obligations of the City and the Developer set out in Article 5 of this Agreement, the Water Utilities Department of the City will provide potable water service and sanitary sewer service to the Project. ARTICLE 4. PLANS AND SPECIFICATIONS. 4.01 Plans and Specifications. (1) Responsibility for Preparation of Plans and Specifications. The Developer shall be solely responsible for and shall pay the cost of preparing, submitting and obtaining approval of the Plans and Specifications for the Project. (2) Use of Qualified Professionals. The Developer shall retain qualified professionals to prepare the Plans and Specifications and shall cause such professionals to prepare the Plans and Specifications. (3) a cC 1" M W U ° W U W U_ 0 >- F U o w -l a v6 MIA 180692234 Approval of Plans and Specifications for the Commercial Parkina Garaae Which is To Be Available to.the Public. The City has previously approved the Conceptual Plans in its regulatory capacity. Exhibit J attached to this Agreement sets forth the City Parking Garage Standards for parking garage facilities owned by the City. In order to ensure that the design of the Parking Unit will meet the City's standards, 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's review of the Plans and Specifications hereunder in its proprietary (i.e., non-regulatory) capacity shall be limited to compliance by the Parking Unit with the City Parking Garage Standards. The City shall notify the Developer in writing within thirty (30) days following 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 have not materially changed from the Conceptual Plans in a manner which causes the Parking Unit to no longer conform to the City Parking Garage 9 • Standards, the City shall approve the submitted. The City's failure to respond day period shall be deemed approval. ARTICLE 5. PROJECT DEVELOPMENT. • Plans and Specifications as to the Developer within said 30- 5.01 Ownership of Property. The Developer is the owner of the Property. 5.02 City's Obligations. (1) Vacation of Right-of-Way. The City Council has adopted (or will consider adopting) an ordinance permanently vacating the eastern half of the existing right-of-way of South Gulfview Boulevard (approximately 35' in width) included within or adjacent to the Property, being the area depicted on Exhibit C. The vacation shall be conditioned on the construction of the Project. The time period for compliance with the ordinance shall be not less than rl (] months. The City shall execute and deliver any instruments confirming the Vacation of Right-of-Way as may be reasonably required by the Developer. (2) Permits. The City will cooperate and coordinate with the Developer with regard to all Permit applications, including without limitation those to federal, state and county agencies, and will facilitate or expedite, to the greatest extent possible, the Permit approval process. (3) Authority for Cafe Seating. The City has adopted a regulation authorizing the use of portions of the west thirty-five (35) feet of the South Gulfview Boulevard right-of-way existing on the Effective Date of this Agreement for outdoor cafe seating and associated activities. Note`. Regulations for cafe Seating under review.] 5.03 Obligations of the Developer. Q air Lu y s _.a ca "J Z0 z r? E ? o' `h 0 ?U 0 0 (1) The Project. The Developer shall build and operate the Project. 2) Responsibility for On-Site Costs. The Developer shall be responsible for all on-site costs relative to the development of the Project, including the Parking Unit. 3) Parking. The Developer agrees to make at least three hundred one (301) parking spaces within the Project available for public parking, of which not less than two hundred fifty (250) parking spaces will available on an hourly basis. The Developer may charge the public for use of the parking spaces in the Parking Unit 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. The Developer agrees, during the term of this Agreement, to maintain the Parking Unit in a manner consistent with the City's "Parking Structure 10 v6 MIA 180692234 • • Maintenance Standards" attached hereto as Exhibit K. For purposes of clarity, it is acknowledged and agreed that the parking spaces included in the Retail Unit(s) or dedicated to the exclusive use of the Retail Unit(s) are not subject to the requirements and limitations of this Section. (4) Commencement of Construction. The Developer shall commence construction of the Project by June 30, 2010, and shall thereafter diligently pursue completion of the Project. ARTICLE 6. PROJECT FINANCING. 6.01 Financing. The Developer intends to finance the development and construction of the Project through one or more loans (as amended, restated, assigned and renewed from time to time, the "Project Financing") with third-party lender(s) (collectively, the "Project Lender"), secured by, inter alia, the Retail Unit(s) and Parking Unit. The Project Financing shall be contingent upon and the City hereby agrees to enter into a "put" agreement (the "Put Agreement") between the Project Lender and the City substantially in the form attached hereto as Exhibit L, with such modifications thereto as may be reasonably acceptable to the Project Lender and the City. Pursuant to the Put Agreement, the Project Lender will have the option, for a period of five (5) years following the Completion Date, to require the City to purchase the Parking Unit for a purchase price of $9,300,000 if the Project Lender forecloses (by judicial foreclosure, deed in lieu or otherwise) against the Project following an event of default by the Developer under the applicable Project Financing documents. The City agrees to reserve $9,300,000 during the term of the Put Agreement for the purchase of the Parking Unit as more particularly provided in the Put Agreement. The City shall enter into the Put Agreement with the Project Lender simultaneously with the closing of the Project Financing. The structure of the Project Financing and security therefor (whether through one mortgage, multiple mortgages or otherwise) shall not be limited or restricted in any way by the terms of this Article 6, provided that the City shall be required to purchase the Parking Unit only upon the terms and conditions set forth in the Put Agreement. The Project Lender shall have the ability to assign the Put Agreement upon the terms and conditions set forth therein, but the City shall have no right to assign the Put Agreement. The City shall not modify or amend (or consent to a modification or amendment to) the Put Agreement without the prior written consent of the Developer. Once the Put Agreement is executed, the City's obligation to purchase the Parking Unit shall be governed by the Put Agreement and shall not be terminated and/or affected in any way by a subsequent termination of this Agreement. With respect to the subject matter of the Put Agreement, the terms of the Put Agreement shall govern and control over any conflicting or inconsistent terms of this Agreement. Any Project Financing will be guaranteed by Surf Style Retail Management Inc. 6.02 Notice of Project Financing to City. As soon as the Developer shall have obtained any financing for 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. 1 C ?Na . 11 v6 MIA 180692234 L L n???? E nPOPNI SEhVICCS DEPT RLK 6.03 Copy of Default Notice to City. The Developer covenants and agrees that either the Put Agreement or the Project Financing documents shall include a provision which provides that in the event any Project Financing secured by the Parking Unit shall become due and payable by maturity or acceleration, the Project Lender shall give written notice thereof to the City by certified mail, return receipt requested. Such notice from the Project Lender to the City shall state the basis of the default by the Developer and shall include copies of any pleadings in any proceeding instituted by the Project Lender(s) incident thereto. ARTICLE 7. INDEMNIFICATION. 7.01 Indemnification by the Developer. c 1'I A f ` L/ > L LU Y,J .d U `? C i O W tJ 0 w 0 (1) The Developer agrees to indemnify, defend and hold harmless, the City, its respective agents, officers, or employees from any and all liabilities, damages, penalties, judgments, claims, demands, costs, losses, expenses or attorneys' fees through appellate proceedings, for personal injury, bodily injury, death or property damage arising out of, or by reason of any act or omission of the Developer, its agents, employees or contractors arising out of, in connection with or by reason of, the performance of its obligations covered by this Agreement, or which are alleged to have arisen out of, in connection with or by reason of, the performance of such obligations. (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 8.01, or covenants contained in Section 8.02. (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. 7.02 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 12 v6 MIA 180692234 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 its obligations covered by this Agreement, or which are alleged to have arisen out of, in connection with or by reason of, the performance of such obligations. (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 9.01, or covenants contained in Section 9.02. (3) The City's indemnity obligations under this Section 7.02 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. (4) 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. 7.03 Limitation of Indemnification. Notwithstanding anything to the contrary contained herein, with respect to the indemnification obligations of the Developer (as set forth in Section 7.01) and the City (as set forth in Section 7.02), the following shall apply: w LU Q Cn UJ _.1 z LL UJ U p 1) The indemnifying party shall not be responsible for damages that could have been, but were not, mitigated by the indemnified party; 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 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. 13 v6 MIA 180692234 ARTICLE 8. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DEVELOPER. 8.01 Representations and Warranties. The Developer represents and warrants to the City that each of the following statements is currently true and accurate and agrees the City may rely upon each of the following statements: (1) The Developer is a Florida corporation duly organized and validly existing under the laws of the State of Florida, has all requisite power and authority to carry on its business as now conducted, to own or hold its properties and to enter into and perform its obligations hereunder and under each document or instrument contemplated by this Agreement to which it is or will be a party, is qualified to do business in the State of Florida, and has consented to service of process upon a designated agent for service of process in the State of Florida. (2) LU 9 Mai n" 97) V Es x VJ ) J, Zi0 r iP V (4) v6 MIA 180692234 This Agreement and, to the extent such documents presently exist in a form accepted by the City and the Developer, each document contemplated or required by this Agreement to which the Developer is or will be a party have been duly authorized by all necessary action on the part of, and have been or will be duly executed and delivered by, the Developer, and neither the execution and delivery thereof, nor compliance with the terms and provisions thereof or hereof: (i) requires the approval and consent of any other party, except such as have been duly obtained or as are specifically noted herein, (ii) contravenes any existing law, judgment, governmental rule, regulation or order applicable to or binding on the Developer, (iii) contravenes or results in any breach of, default under or, other than as contemplated by this Agreement, results in the creation of any lien or encumbrance upon any property of the Developer under any indenture, mortgage, deed of trust, bank loan or credit agreement, the Developer's Articles of Incorporation, or, on the date of this Agreement, any other agreement or instrument to which the Developer is a party or by which the Developer may be bound. 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. There are no pending or, to the knowledge of the Developer threatened actions or proceedings before any court or administrative agency against 14 the Developer, or against any controlling shareholder, officer, employee or agent of the Developer which question the validity of this Agreement or any document contemplated hereunder, or which are likely in any case, or in the aggregate, to materially adversely affect the consummation of the transactions contemplated hereunder or the financial condition of the Developer. (5) 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 in all material respects. (6) 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. (7) 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. 8.02 Covenants. The Developer covenants with the City that until the earlier of the Termination Date or the Expiration Date (unless an earlier date is specified, in which case such earlier date shall control): (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) LU ] iLL?, (? L) CC U G? 53 t -- 9 C "'d { U,' 2 LU LL Cr ;-- UJ U 9= LU n During each year that this Agreement and the obligations of the Developer under this Agreement shall be in effect, the Developer shall cause to be executed and to continue to be in effect those instruments, documents, certificates, permits, licenses and approvals and shall cause to occur those events contemplated by this Agreement that are applicable to, and that are the responsibility of, the Developer. 3) The Developer shall use commercially reasonable efforts to accomplish the development of the Project by the Developer in accordance with the Plans and Specifications, and this Agreement, and will not violate any laws, ordinances, rules, regulations, orders, contracts or agreements that are 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 materially adversely affects, or with the passage of time is likely to materially adversely affect, the Developer's 15 v6 MIA 180692234 financial capability to successfully and completely develop, construct and complete the Project as contemplated hereby. (5) Subject to Section 15.01, from the Effective Date through the Completion Date, 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. (6) 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 of Developer by this Agreement. (7) 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 Completion Date. ARTICLE 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CITY. 9.01 Representations and Warranties. The City represents and warrants to the Developer that each of the following statements is currently true and accurate and agrees that the Developer may rely on each of the following statements: ?°-- TIE A MIA 180692234 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. 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 16 and provisions thereof or hereof (i) requires the approval and consent of any other party, except such as have been duly obtained or as are specifically noted herein, (ii) contravenes any existing law, judgment, governmental rule, regulation or order applicable to or binding on the City, (iii) contravenes or results in any breach of, or default under or, other than as contemplated by this Agreement, results in the creation of any lien or encumbrance upon any property of the City under any indenture, mortgage, deed of trust, bank loan or credit agreement, applicable ordinances, resolutions or, on the date of this Agreement, any other agreement or instrument to which the City is a party, specifically including any covenants of any bonds, notes, or other forms of indebtedness of the City outstanding on the Effective Date. (3) This Agreement and, to the extent such documents presently exist in a form accepted by the City and the Developer, each document contemplated or required by this Agreement to which the City is or will be a party constitute, or when entered into will constitute, legal, valid and binding obligations of the City enforceable against the City in accordance with the terms 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. 9.02 Covenants. The City covenants with the Developer that until the earlier of the Termination Date or the Expiration Date (unless an earlier date is specified, in which case such earlier date shall control): ?J oIr i puil a to ? ? z `_J ??. o 0 ? if ? (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 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 17 v6 MIA 180692234 , A 0 0 indebtedness, that will result in any provision of this Agreement to be in violation thereof. (4) The City shall not request or recommend any rezoning of the Property, or any part thereof, or any change in the Comprehensive Plan, which will prevent or adversely affect the development of the Project. (5) The City shall maintain its financial capability to carry out its responsibilities as contemplated by this Agreement and shall notify the Developer of any event, condition, occurrence, or change in its financial condition which materially adversely affects, or with the passage of time is likely to materially adversely affect, the City's financial capability to carry out its responsibilities contemplated hereby. ARTICLE 10. CONDITIONS PRECEDENT. 10.01 Construction of Project. Subject to termination of this Agreement pursuant to Article 11, 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: C L' ?d u {r) J u U1 LL ??' r Q r WL w 1) The Plans and Specifications that construction shall have been approved under this Agreement) and by any Authority, FEMA shall have approved initial Permit for the commencement of other Permits necessary for constructii issued. are necessary to commence by the City (to the extent required other applicable Governmental the Flood Zone Change, and the construction of the Project and all )n to commence shall have been The Project Financing shall have closed and conditions to funding shall have been satisfied. The City Council shall have adopted an ordinance effecting the Vacation of Right-of-Way as contemplated in Section 5.02(1) hereof. 10.02 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 11. DEFAULT; TERMINATION. 11.01 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: 18 v6 MIA 180692234 (a) The Developer shall fail to perform or comply with any material provision of this Agreement applicable to it within the time prescribed therefor, after receipt of a notice from the City pursuant to subsection 11.01(2)(a); or (2) w c Vat I F" ran Y _. C-9 LU UL t rd LLJ v6 MIA 180692234 (b) The Developer shall make a general assignment for the benefit of its creditors, or shall admit in writing its inability to pay its debts as they become due or shall file a petition in bankruptcy, or shall be adjudicated a bankrupt or insolvent, or shall file a petition seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation or shall file an answer admitting, or shall fail reasonably to contest, the material allegations of a petition filed against it in any such proceeding, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of the Developer or any material part of such entity's properties; or (c) Within ninety (90) 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 ninety (90) days after the appointment without the consent or acquiescence of the Developer of any trustee, receiver or liquidator of any of such entities or of any material part of any of such entity's properties, such appointment shall not have been vacated; or (a) If an event of default by the Developer described in subsection (1) above shall occur, the City shall provide written notice thereof to the Developer, and (i) 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 (ii) if such event of default is of such nature that it cannot be completely cured within such time period, then if the Developer shall not have commenced to cure such default within such thirty (30) day period and shall not diligently prosecute such cure to completion within such reasonable longer period of time as may be necessary (provided, however, if the Developer is proceeding diligently and in good faith, the curative period shall be extended for a period of not exceeding six (6) months without any approval or consent of the City being required, but such approval will be required if the curative period is to be extended beyond six (6) months after the notice of default has been given by the City to the Developer), then, in addition to any remedy available under Section 11.05, the City may terminate this Agreement or pursue any and all legal or equitable remedies to which the City is entitled. 19 (b) Any attempt by the City to pursue any of the above referenced remedies will not be deerned an exclusive election of remedy or waiver of the City's right to pursue any other remedy to which either may be entitled. (c) Any time periods or deadlines provided in this Agreement shall be tolled or extended by the amount of time to cure any event of default hereunder if such event affects the Developer's or City's ability to perform by such deadline or the expiration of such period. (3) Notwithstanding any provision of this Section, a default by the Developer following the Completion Date 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. 11.02 Default by the City. (1) 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 (i) any material provision of this Agreement applicable to it within the time prescribed therefor, after receipt of a notice from the Developer pursuant to subsection 11.02(2)(a), or (ii) any obligation of the City under the Put Agreement and such failure continues beyond any applicable notice and grace period provided therein. (2) (a) If an event of default by the City described in Section 11.02(1) shall occur, the Developer shall provide written notice thereof to the City, and (i) if such event of default shall not be cured by the City within thirty (30) days after receipt of the written notice from the Developer -?' W specifying in reasonable detail the event of default by the City, or F., r (ii) if such event of default is of such nature that it cannot be s r7n ; completely cured within such time period, then if the City shall not L 9 < have commenced to cure such default within such thirty (30) day 4 r; period and shall not diligently prosecute such cure to completion LLM within such reasonable longer period of time as may be necessary C 0 (not to exceed, however, six (6) months from the Developer's notice), then the Developer may terminate this Agreement institute a , an action to compel specific performance of the terms hereof by the City or pursue any and all legal or equitable remedies to which the Developer is entitled. (b) Any attempt by the Developer to pursue any of the remedies referred to in subparagraph (a) 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. 20 v6 MIA 180692234 • • (c) Any time periods or deadlines provided in this Agreement shall be tolled or extended by the amount of time to cure any event of default hereunder if such event affects the Developer's or City's ability to perform by such deadline or the expiration of such period. 11.03 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. 11.04 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. 11.05 Termination. (1) ? l " L) a: nsu i 01 t- C 3 c r z Ca CL 3 C) ESl 0 LLI 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 and failure of FEMA to grant the Flood Zone Change. 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 11, 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 City or the Developer after the occurrence of any of the following events or conditions (except for subsection (b), in which A MIA 180692234 21 • • n rrJ, ?. V z C'D W ti- a ? U w LLI (3) event only the Developer may terminate this Agreement pursuant to this subsection (2)): (a) The appropriate Governmental Authority (including the City in exercise of its governmental and regulatory authority and responsibility), upon petition by the Developer denies or fails to: issue the necessary order or other action necessary to vacate the right-of-way as described in Section 5.02(1), approve the Flood Zone Change, issue the Permits or any other land use approval necessary to commence construction of the Project on the Property, provided the Developer has proceeded diligently, expeditiously and in good faith to obtain such approval, permits or other necessary actions; (b) A previously unknown site condition is subsequently discovered and that condition prevents successful development of the Project, or part of the Project on the Property, or part of the Property (in which case only the Developer at his option can terminate the Project as not feasible). 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 of its capabilities, is unable to cause a condition precedent to its respective obligations to occur or be satisfied, then the Developer or the City may elect to terminate this Agreement by giving a notice to the other party hereto within thirty (30) days of the occurrence of such event or the determination of inability to cause a condition precedent to occur or be satisfied, stating its election to terminate this Agreement as a result thereof, in which case this Agreement shall then terminate. Notwithstanding anything contained herein to the contrary, neither party shall have the right to terminate this Agreement under this Section 11.05 once the Commencement Date shall have occurred. 4) In the event of a termination pursuant to this Section 11.05, 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. 11.06 Termination Certificate. (1) In the event of a termination of this Agreement for any reason prior to the Expiration Date, each of the parties hereto do covenant and agree with each other to promptly execute a certificate prepared by the party electing to terminate this Agreement, which certificate shall expressly state that this Agreement has been terminated in accordance with its terms, is no 22 v6 MIA 180692234 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 Property is no longer subject to any restrictions, limitations or encumbrances imposed by this Agreement. Such certificate shall expressly terminate the Memorandum of this Agreement required by Section 15.13 without qualification for all purposes. (2) The certificate described in Section (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 12. ARBITRATION 12.01 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 12. All parties hereby agree such arbitration, once commenced, shall be the exclusive procedure for resolving such disagreement or dispute and agree to be bound by the result of any such arbitration proceeding unless all parties mutually agree to terminate such proceeding prior to decision. If any arbitration proceeding under this part adversely affects the performance of any party hereunder, then any time periods provided herein for such performance by that party shall be tolled during the pendency of the arbitration proceeding affecting such performance. 12.02 Appointment of Arbitrators. (1) w ou i ? » 3 ? L Q nLU urn • -- ?; c n LYS U v6 MIA 180692234 (a) Unless accelerated arbitration as provided in Section 12.08 hereof is invoked, any party invoking arbitration herewith shall, within five (5) days after giving notice of impasse in the dispute resolution processor 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 23 appointment of such individual set forth in the original notice as a sole arbitrator or shall appoint one (1) disinterested person per party of recognized competence in such field as an arbitrator. (2) (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. a~. u `RD '.:J LL. 0 ?I--3 L?J J L U w (b) If the second arbitrator shall not have been appointed as provided in subsection (a), the first arbitrator shall, after ten (10) days notice to the parties, proceed to determine such matter. (c) If the two (2) arbitrators appointed by the parties pursuant to subsection (a) shall be unable to agree within fifteen (15) days after the appointment of the second arbitrator upon the appointment of a third arbitrator, they shall give written notice of such failure to agree to the parties, and, if the parties then fail to agree upon the selection of such third arbitrator within fifteen (15) days thereafter, then within ten (10) days thereafter each of the parties upon written notice to the other parties hereto may request the appointment of a third arbitrator by the office in or for the State of Florida (or if more than one office, the office located closest to the City) of the American Arbitration Association (or any successor organization thereto), or, in its absence, refusal, failure or inability to act, request such appointment of such arbitrator by the United States District Court for the Middle District of Florida (which request shall be filed in the division of that court responsible for the geographic area including the City), or as otherwise provided in Chapter 682, Florida Statutes, known and referred to as the Florida Arbitration Code, as amended. 12.03 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. 12.04 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 24 v6 MIA 180692234 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. 12.05 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 12.02 hereof. 12.06 Decision of Arbitrators. I a w i w; I wn Q U1 LL Q I-IL C J t- ? J . Q U LLJ --__ J (1) (3) 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. If any such decision requires performance by the City, the City covenants and agrees to comply promptly with any decision reached by arbitrator(s) 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. 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. 12.07 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 12.07, "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. 12.08 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 12.02 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. 25 v6 MIA 180692234 • • W C===== ul Jt ® E i IJ i.!_ its = O 2 01 (b) Accelerated arbitration, for purposes of this Section 12.08, shall be accomplished by either party notifying the American Arbitration Association (or any successor organization thereto) that the parties have agreed to a single arbitrator, qualified to decide the matter for arbitration, to be appointed by the American Arbitration Association (or any successor organization thereto) with the consent of the parties to such proceeding within three (3) days after receipt of the request and to decide such matter within five (5) days after such appointment. (c) If an arbitrator is not so appointed with consent of the parties to the proceeding within three (3) days after the notice referred to in paragraph (2) is received by the American Arbitration Association, the accelerated proceeding under this Section 12.08 shall terminate and the procedures otherwise set forth in this Article 12 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 12.08, remain in effect and applicable to an accelerated arbitration proceeding. 12.09 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. 12.10 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 13. UNAVOIDABLE DELAY. 13.01 Unavoidable Delay. (1) Any delay in performance of or inability to perform any obligation (other than an obligation to pay money) or meet any date or deadline (including without limitation the Commencement Date and the Completion Date) under this Agreement due to any event or condition described in subparagraph (2) as an event of "Unavoidable Delay" shall be excused in the manner provided in this Section 13.01. 26 v6 MIA 180692234 • • w s C) Er 4 '^ LU L' ?s ?q J ZU UJJ it.. 0 ? '? i= (2) "Unavoidable Delay" means any of the following events or conditions or any combination thereof: acts of God, litigation which has the effect of precluding reasonable satisfaction of the obligations of this Agreement, acts of the public enemy, riot, insurrection, war, pestilence, archaeological excavations required by law, delays relating to Applicable Laws or approval of Permits beyond the control of the party seeking same, 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 subparagraph (3) and in subparagraph (4) as the "Applicant") for an extension of time pursuant to this subsection must be in writing, must set forth in detail the reasons and causes of delay, and must be filed with the other party to this Agreement within thirty (30) 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 14. FIRE OR OTHER CASUALTY; CONDEMNATION. 14.01 Loss or Damage to Project. (1) Until the Completion Date, subject to the extent, availability and sufficiency of insurance proceeds or the condemnation award (as applicable) and the Project Lender's consent and approval (as set forth below in subparagraph (3)), the Developer covenants and agrees to diligently commence and complete the reconstruction or repair of any loss or damage caused by fire or other casualty or by eminent domain (provided the City is not the condemning authority) to the Project (or any portion thereof) to substantially the same size, floor area, cubic content and general appearance as existed prior to the occurrence of such loss or 27 v6 MIA 180692234 • • damage, promptly after the City approves the Plans and Specifications (if and to the extent required, and subject to the limitations on the City's approval, under this Agreement) for such reconstruction or repairs. (2) The City shall review the Plans and Specifications (if and to the extent required, and subject to the limitations on the City's approval, under this Agreement) 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 or such approval is otherwise required under Section 4.01(3), 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. k+ } R `- z U ?o ?- a "- 1 00 If (a) the insurance proceeds or condemnation award (as applicable) received are insufficient to complete the repairs, or (b) any Project Lender applies all or a portion of the insurance proceeds or condemnation award to the repayment of the Project Financing, or (c) the Developer is unable to obtain all of the Permits or approvals required under Applicable Laws for the reconstruction of the Project, then, in any of such events, the Developer may elect to terminate this Agreement by giving to the City notice of such election within one hundred eighty (180) days after the occurrence of the casualty or condemnation. If such notice is given, the rights and obligations of the parties under this Agreement shall cease as of the date of such notice, except for those provisions hereof (if any) which expressly survive termination. 14.02 Partial Loss or Damage to Project. Until the Completion Date, any loss or damage by fire or other casualty or exercise of eminent domain to the Project or Property, or any portion thereof, which does not render the Project or Property 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, any requirements and conditions of the Project Lender, and the terms of Section 14.01(3). 14.03 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. 28 V6 MIA 180692234 (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, subject to the terms of this Article 14. 14.04 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. 14.05 Condemnation of Project or Property; Application of Proceeds. In the event that part, but not all, of the Project or Property, 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. 14.06 Condominium Documents Control. Notwithstanding anything contained in this Article 14 to the contrary, from and after the date that the Property is submitted to the condominium form of ownership as contemplated by Section 2.03(2) of this Agreement, the terms of the condominium documents shall govern and control with respect to (a) the reconstruction and repair of any loss or damage to the Project caused by fire or other casualty or eminent domain, and (b) the settlement, collection, use and application of any insurance proceeds or condemnation awards resulting therefrom. ARTICLE 15. MISCELLANEOUS 15.01 Assignments. (1) By the Developer. a. Prior to the Commencement Date, the Developer may sell, convey o , assign or otherwise dispose of any or all of its right, title, interest r„ w and obligations in and to the Project, or any part thereof, only with 0 the prior written consent of the City, which consent shall not be L unreasonably withheld, provided that such party (hereinafter I ° n u referred to as the "assignee"), to the extent of the sale, conveyance, assignment or other disposition by the Developer to ?? L? o the assignee, shall be bound by the terms of this Agreement the 01 - a same as the Developer for such part of the Project as is subject to ------ >' U such sale, conveyance, assignment or other disposition. c?--f a _?. b. If the assignee of the Developer's right, title, interest and obligations in and to the Project, or any part thereof assumes all of the 29 v6 MIA 180692234 0 0 Developer's obligations hereunder for the Project, or that part subject to such sale, conveyance, assignment or other disposition, then the Developer shall be released from all such obligations hereunder which have been so assumed by the assignee, and the City agrees to execute an instrument evidencing such release, which shall be in recordable form. C. An assignment or transfer of the Project, or any part thereof, by the Developer to any corporation, limited liability company, limited partnership, general partnership, joint venture or other business entity, in which the Developer (or any person(s) or entity controlling, controlled by or under common control with the Developer) is the or a general partner or managing member 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 15.01, 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. (2) City's Right to Assign Rights. The City shall not have the right to assign or otherwise transfer this Agreement or any of its rights and obligations hereunder. 15.02 Successors and Assigns. The terms herein contained shall bind and inure to the benefit of the City, and its successors and permitted assigns, and the Developer and its successors and permitted assigns, except as may otherwise be specifically provided herein. 15.03 Notices. Lu a:J l11 gal C" ??-) U L C7 cre7 LJ z '-? C? w U- :E 0 C? U _...: ; I (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: 30 V6 MIA 180692234 • L.O.M., Inc. c/o Surf Style, Inc. 4100 N. 28th Terrace Hollywood, Florida 33020 Attn: Controller with copies to: • City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 Attn: City Manager with copies to: Greenberg Traurig, P.A. Pamela K. Akin, Esq. 1221 Brickell Avenue, 23rd Floor Clearwater City Attorney Miami, Florida 33131 112 S. Osceola Avenue Attn: Nancy B. Lash, Esq. 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 15.03. 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. 15.04 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. 15.05 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. CD 01 L------ -----c v6 MIA 180692234 © cd, , j j t! t ! 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. 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 31 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. 15.06 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 certifying that this Agreement has not been modified and is in full force and effect (or if there have been modifications that the said Agreement as modified is in full force and effect and setting forth a notation of such modifications), and that to the knowledge of such party, neither it nor any other party is then in default hereof (or if another party is then in default hereof, stating the nature and details of such default), it being intended that any such statement delivered pursuant to this Section 15.06 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. w 'U "JI ?j r j a 1A n IL' "- U ?, ? ° mplete 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. 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. 15.08 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. 32 v6 MIA 180692234 15.09 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. 15.10 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. 15.11 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 Property. 15.12 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. 15.13 Memorandum of Development Agreement. The City and the Developer agree to execute, in recordable form, on the Effective Date, a short form "Memorandum of Agreement for Development of Property" in the form attached hereto as Exhibit M, and agree, authorize and hereby direct such Memorandum to be recorded in the Public Records of Pinellas County, Florida, as soon as possible after execution thereof. The Developer shall pay the cost of such recording. 15.14 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. ? a w 15.15 No General Obligation. In no event shall any obligation of the City under this I e 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 viState of Florida or any other applicable laws, but shall be payable solely from legally 0available revenues and funds. Neither the Developer nor any other party under or a?.tz ca ?, tbeneficiary 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 Cform on any real or personal property to pay the City's obligations or undertakings c hereunder. 15.16 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 33 v6 MIA 180692234 • • 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. 15.17 Technical Amendments. In the event that due to minor inaccuracies contained herein or any Exhibit attached hereto or any other agreement contemplated hereby, or due to changes resulting from technical matters arising during the term of this Agreement, the parties agree that amendments to this Agreement required due to such inaccuracies, unforeseen events or circumstances which do not change the substance of this Agreement may be made and incorporated herein. The City Manager is authorized to approve such technical amendments, on behalf of the City, with the written approval of the Developer, and is authorized to execute any required instruments, amendments and approvals, to make and incorporate such amendment (so approved by the Developer) to this Agreement or any Exhibit attached hereto or any other agreement contemplated hereby. 15.18 Term; Expiration; Certificate. (1) If not earlier terminated as provided in Section 11.05, this Agreement shall automatically expire and no longer be of any force and effect on the Expiration Date. (2) Upon completion of the term of this Agreement, upon the request of the City or the Developer, 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. ----- n t L `u 3 In the event of an dispute as to whether an ., ? O any any party is required to execute the Agreement Expiration Certificate, the dispute shall be resolved by arbitration as provided in Article 12. (4) The Agreement Expiration Certificate shall be in such form as will enable it C'D to be recorded in the Public Records of Pinellas County, Florida. Following execution by all of the parties hereto, the Agreement Expiration Certificate Ll 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. 15.19 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, conditioned or delayed, unless otherwise expressly authorized by the terms of this Agreement. Whenever in this Agreement the approval or consent of the City is 34 v6 MIA 180692234 required, the written approval or consent regarding the matter in question by the City Manager or his/her designee on behalf of the City shall satisfy the requirement for approval or consent of the City. However, any amendments or modifications to this Agreement or any exhibits hereto, except as otherwise provided in Section 15.17 hereof, shall require City Council approval. 15.20 Waiver of Jury Trial. The parties hereto hereby each knowingly, irrevocably, voluntarily and intentionally waive any right such party may have to a trial by jury in respect of any action, proceeding or counterclaim based on this Agreement, or arising out of, under or in connection with this Agreement or any amendment or modification of this Agreement, or any other agreement executed by and between the parties in connection with this Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement to the parties to enter into this Agreement. 15.21 Effective Date. The Effective Date shall be the date of the last signature to this Agreement. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK - SIGNATURES ON FOLLOWING PAGE(S)] w l l? a U1 uu a L] v6 MIA 180692234 35 IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals affixed as of this day of , 2010. Attest: THE CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation By: By: Cynthia Goudeau, City Clerk Frank V. Hibbard, Mayor Approved as to form: Pamela K. Akin City Attorney STATE OF FLORIDA ) COUNTY OF PINELLAS ) The foregoing instrument was acknowledged before me this day of , 2010 by Frank V. Hibbard and Cynthia Goudeau, Mayor and City Clerk, respectively, for the City of Clearwater, Florida, on behalf of the City. By: Signature of Notary Public Printed, typed or stamp ?= w ,i Q U t s a {t `? tl S as.. CJ r My Commission Expires: 36 v6 MIA 180692234 L.O.M., INC., a Florida corporation By:_ Name: Title: STATE OF FLORIDA COUNTY OF PINELLAS The foregoing instrument was acknowledged before me this 2010 by , as L.O.M., INC, a Florida corporation, on behalf of the corporation. By: Signature of Notary Public Printed, typed or stamp v6 MIA 180692234 day of , of My Commission Expires: © ?R ao? v -^ `. k _ 1 prn? LU U, `2 r.. 37 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY PARCEL 1: Lot 110, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. PARCEL 2: Lots 60, 61 and 62, and the Southerly one-half of Lot 107 and all of the Lots 108 and 109, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. TOGETHER WITH the eastern half of the existing right-of-way of South Gulfview Boulevard (approximately 35' in width) adjacent to the Property, which right-of-way area is depicted in Exhibit C and intended to be vacated pursuant to Section 5.02(1) of the foregoing Development Agreement. a o ? n 4 u < CAJ M_Lp y? CD (? ry? LL 4):. 3 r" U n v6 MIA 180692234 EXHIBIT B CONCEPTUAL PLANS FOR PROJECT w v6 MIA 180692234 r 0 0 EXHIBIT C RIGHT-OF-WAY AREA TO BE VACATED 1 7 4 t Way J v6 MIA 180692234 • 0 EXHIBIT D FORM OF CONDOMINIUM DOCUMENTS '4G' c,g !R1 f v "-, Pj V6 MIA 180692234 • • EXHIBIT E FORM OF PUBLIC PARKING COVENANT O ? o¢ ?l ILL n t l f?> Lu c4J i.U ''t Lsq 3 c :?. ;9 s u v6 MIA 180692234 0 9 EXHIBIT F FORM OF MAINTENANCE EASEMENT (BREAK WALL) w w Y??? ? 1SJ SY f ? £ f ; ?y ? ddb 6. x. E:19 ?? ' v6 MIA 180692234 0 • EXHIBIT G FORM OF SIDEWALK AND TURN-LANE EASEMENT s i--t ? c V a C j Sm ! :a rf) !ii? Imo. ,....._..?.. .. ... ..., ....•..?? v6 MIA 180692234 EXHIBIT H LIST OF REQUIRED PERMITS AND APPROVALS 12, 44 t v6 MIA 180692234 EXHIBIT I • PROJECT DEVELOPMENT SCHEDULE s r C) jP u .? ILI v6 MIA 180692234 EXHIBIT J • CITY PARKING GARAGE STANDARDS ??- Lu - a ? p!' ? 1? C r C7--) ?) F u:t LU r; ( , lOIL _ + v6 MIA 180692234 EXHIBIT K • PARKING STRUCTURE MAINTENANCE STANDARDS tLr q 9 r ; ?•, iJ ? 5 -, Q ;jj +d g t !tom d°` ! 0) v6 MIA 180692234 • EXHIBIT L FORM OF PUT AGREEMENT • cr C-D v6 MIA 180692234 EXHIBIT M U FORM OF MEMORANDUM OF AGREEMENT FOR DEVELOPMENT OF PROPERTY n? a! ' t C=D ^t ?t i «I l ' ?. 1 v6 MIA 180692234 CITY OF CLEARWATER POST OFFICE BOX 4748, CLEARWATER FLORIDA 33758-4748 MUNICIPAL SERVICES BUILDING, 100 SOUTH MYRTLE AVENUE, CLEARWATER, FLORIDA 33756 T4000 1 TELEPHONE (727) 562-4567 FAx (727) 562-4865 PLANNING & DEVELOPMENT February 19, 2010 Alex Azan, P.E. Keith Zayac & Associates, Inc. 1400163 d Way North Clearwater, Florida 33760 RE: Development Order - DVA2009-00004 311 S. Gulfview Boulevard (including 305, 309 and 315 S. Gulfview Boulevard and 320 Coronado Drive) Dear Mr. Azan: The City Council at their meeting on February 18, 2010, APPROVED a Development Agreement between L.O.M. Inc. (the property owner) and the City of Clearwater, for the property at 311 S. Gulfview Boulevard (including 305, 309 and 315 S. Gulfview Boulevard and 320 Coronado Drive). If you have any questions, please do not hesitate to call Wayne M. Wells, AICP, Planner III, at 727-562- 4504. You can access zoning information for parcels within the City through our website: ??-??-??-.mvclealtivater.com. Sincerely, MIC el k, Planning Director S: IPlanning DeparnnenAC D B0evelopment Agreements (DVA)IDVA2009-00004 - Gulfview S 0311 (7) 2010.02 -Approved - WWIGulfview S 0311 DVA CC Decision Getter 2.19.10.doe "EQUAL EMPLOYMENT AND AFFIRMATIVE ACTION EMPLOYER" F? . . . t Wells, Wayne From: Wells, Wayne Sent: Thursday, January 28, 2010 5:15 PM To: Dewitt, Gina Subject: GM08-92168-015: RE: DVA2009-00004, 311 S. Gulfview Blvd. - LOM Exhibit I See my reply and response to my initial emails (you were copied on both). From: Dewitt, Gina Sent: Thursday, January 28, 2010 3:43 PM To: Wells, Wayne Subject: GM08-9216B-015: RE: DVA2009-00004, 311 S. Gulfview Blvd. - LOM Exhibit I Wayne, I haven't received anything from Alex, have you? From: Wells, Wayne Sent: Monday, January 25, 2010 11:11 AM To: 'alex@keithzayac.com' Cc: 'richard@keithzayac.com'; Dewitt, Gina; Akin, Pam; Clayton, Gina; Tefft, Robert Subject: DVA2009-00004, 311 S. Gulfview Blvd. - LOM Exhibit I Alex - Could you please send Exhibit I only electronically to Gina DeWitt, with a copy to me, as soon as possible? Wayne From: Dewitt, Gina Sent: Friday, January 22, 2010 10:25 AM To: Wells, Wayne Cc: Akin, Pam Subject: LOM Exhibit I Hi Wayne, Back in December you had forwarded a PDF of the draft Dev Agmt. w/ several exhibits (including Ex. I) attached that apparently you had gotten from Andy Goulish. I don't have an electronic copy of just Ex I by itself. Is there any way I can get that separately? Thanks Gina DeWitt Legal Office Administrator Clearwater City Attorney's Office 112 5. Osceola Ave. 3rd Floor Clearwater, FL 33756 727-562-4011 direct E 727-562-4021 fax gina.dewitt@myclearwater.com r 1 • • Wells, Wayne From: Goulish, Andy [AGoulish@finfrockdmc.com] Sent: Thursday, January 28, 2010 4:40 PM To: Wells, Wayne; alex@keithzayac.com Cc: Keeney, Kathryn; Dewitt, Gina Subject: RE: DVA2009-00004, 311 S. Gulfview Blvd. - LOM Exhibit I Attachments: image001.png Wayne, I apologize for the delay. I am making a few revisions requested by the Owner at the moment and will forward it to him within the hour. He will in turn forward it to the City. Thanks, Andy Andrew J. Goulish, PE / Project Manager, Construction 2400 Apopka Boulevard / Apopka, FL 32703 T: 407.293.4000 / C: 407.402.3797 / F: 407.36T246S a'=owlish c finfrod<dmc.com 1 .9 FINFROCK 10 http://wsaw. finfrockdmc.com NOTICE: The information contained. in this e-mail transmission is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please promptly notify the sender by reply e-mail, and,then destroy all copies of the transmission. From: Wayne.Wells@myClearwater.com [mailto:Wayne.Wells@myClearwater.com] Sent: Thursday, January 28, 2010 4:39 PM To: Goulish, Andy; alex@keithzayac.com Cc: Keeney, Kathryn; Gina.Dewitt@myClearwater.com Subject: DVA2009-00004, 311 S. Gulfview Blvd. - LOM Exhibit I Please advise as to the status of our request. Monday is the City Council work session on this application. City Attorney's office is asking. From: Goulish, Andy [mailto:AGoulish@finfrockdmc.com] Sent: Monday, January 25, 2010 1:24 PM To: alex@keithzayac.com; Wells, Wayne Cc: Keeney, Kathryn Subject: Re: DVA2009-00004, 311 S. Gulfview Blvd. - LOM Exhibit I Wayne, I wanted to let you know that I'm on a plane tp Virginian so I meay not be able to locate this until this evening. V • Thanks, Andy From: Alex azan To: Goulish, Andy; Richard@Keithzayac.com Sent: Mon Jan 25 11:15:14 2010 Subject: FW: DVA2009-00004, 311 S. Gulfview Blvd. - LOM Exhibit I Andy: Just to ensure that I am send them the correct exhibit, please send me/Wayne( © us) with Exhibit I. Thank you, Alex L. Azan, P.E. 813.205.3615 Keith Zayac & Associates, Inc. MAILING ADDRESS: Post Office Box 1156 Safety Harbor, FL 34695 Physical Address: ,44001 63rd Way North" Clearwater, FL 33760, From: Wayne.Wells@myClearwater.com [mailto:Wayne.Wells@myC[earwater.com] Sent: Monday, January 25, 2010 11:11 AM To: alex@keithzayac.com Cc: richard@keithzayac.com; Gina.Dewitt@myClearwater.com; Pam.Akin@myClearwater.com; Gina.Clayton@myClearwater.com; Robert.Tefft@MyClearwater.com Subject: DVA2009-00004, 311 S. Gulfview Blvd. - LOM Exhibit I Alex - Could you please send Exhibit I only electronically to Gina DeWitt, with a copy to me, as soon as possible? Wayne From: Dewitt, Gina Sent: Friday, January 22, 2010 10:25 AM To: Wells, Wayne Cc: Akin, Pam Subject: LOM Exhibit I Hi Wayne, Back in December you had forwarded a PDF of the draft Dev Agmt. w/ several exhibits (including Ex. I) attached that apparently you had gotten from Andy Goulish. I don't have an electronic copy of just Ex I by itself. Is there anyway I can get that separately? Thanks Gina DeWitt Legal Office Administrator Clearwater City Attorney's Ace 112 S. Osceola Ave. 3rd Floor Clearwater, FL 33756 727-562-4011 direct 727-562-4021 fax • gina.dewitt@myclearwater.com E • Wells, Wayne From: Wells, Wayne Sent: Monday, January 25, 2010 11:11 AM To: 'alex@keithzayac.com' Cc: 'richard@keithzayac.com; Dewitt, Gina; Akin, Pam; Clayton, Gina; Tefft, Robert Subject: DVA2009-00004, 311 S. Gulfview Blvd. - LOM Exhibit I Alex - Could you please send Exhibit I only electronically to Gina DeWitt, with a copy to me, as soon as possible? Wayne From: Dewitt, Gina Sent: Friday, January 22, 2010 10:25 AM To: Wells, Wayne Cc: Akin, Pam Subject: LOM Exhibit I Hi Wayne, Back in December you had forwarded a PDF of the draft Dev Agmt. w/ several, exhibits (including Ex. I) attached that apparently you had gotten from Andy Goulish. I don't have an-electronic copy of just Ex I by itself. Is there any way I can get that separately? Thanks Gina DeWitt Legal Office Administrator Clearwater City Attorney's Office 112 5. Osceola Ave. 3rd Floor Clearwater, FL 33756 727-562-4011 direct 727-562-4021 fax gina.dewitt@myclearwater.com 1 CITY OF CLEARWATER POST OFFICE BON 4748, CLEARWATER, FLORIDA 33758-4748 MUNICIPAL SERVICES BUILDING, 100 SOUTH MYRTLE AVENUE, CLEARWATER, FLORIDA 33756 sIjAAO0111 i? TELEPHONE (727) 562-4567 FAN (727) 562-4865 PLANNING & DEVELOPMENT January 6, 2010 Alex Azan, P.E. Keith Zayac & Associates, Inc. 14001 63rd Way North Clearwater, Florida 33760 RE: DVA2009-00004 311 S. Gulfview Boulevard (including 305, 309 and 315 S. Gulf-view Boulevard and 320 Coronado Drive) Dear Mr. Azan: The Community Development Board (CDB) at their meeting on January 5, 2010, voted to recommend to the City Council APPROVAL of a Development Agreement between L.O.M. Inc. (the property owner) and the City of Clearwater as per Beach by Design and Community Development Code Section 4-606 for the property at 311 S. Gulfview Boulevard (including 305, 309 and 315 S. Gulfview Boulevard and 320 Coronado Drive). This Development Agreement is scheduled for review and decision by City Council on Thursday, January 14, 2010. If you have any questions, please do not hesitate to call Wayne M. Wells, AICP, Planner 111, at 727-562- 4504. You can access zoning information for parcels within the City through our website: www.myelearwater.com/govidepts- planning. Since`rel , Michael Delk, AI. Planning Director S: (Planning DepartnnentlC D BIFLEX (FLD)IPending cases)Up for the next CDBIDVA2009-00004 - Gulfview S 0311 (T) 2009_ix - 1.5.10 CDR + 1.14.10 CC- WWIGu1fview S 0311 DVA CDB Decision Letter 1.6.10.doc V4V "EQUAL EMPLOYMENT AND AFFIRMATIVE ACTION EMPLOYER" Wells, Wayne From: Goulish, Andy [AGoulish@finfrockdmc.com] Sent: Tuesday, December 29, 2009 9:38 AM To: Wells, Wayne Cc: alex@keithzayac.com; richard@keithzayac.com Subject: RE: DVA2009-00004, 311 S. Gulfview Blvd. - Revised Development Agreement Attachments: Surf-Style Colored Elev (N&W).pdf; image001.png Andrew J. Goulish, PE / Pr(ject Manager, Construction 2400 Apopka.Boulevard / Apopka, FL 32703 T: 407.2914000 / C: 407.4011797 / F: 407.367.2465 a out IisWe,, inI'm&dmc.com FC Iitt.u://Nv\vvv.finfrockdmc.corn NOTICE: The information contained in this e-mail transmission is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please promptly notify the sender by reply e-mail, and then destroy all copies of the transmission. From: Wayne.Wells@myClearwater.com [mailto:Wayne.Wells@myClearwater.com] Sent: Tuesday, December 29, 2009 9:29 AM To: Goulish, Andy Cc: alex@keithzayac.com; richard@keithzayac.com Subject: DVA2009-00004, 311 S. Gulfview Blvd. - Revised Development Agreement Andy - Could you please send me pdf's of the color elevations and perspective drawings for my electronic files? I also have the press asking for them. Thanks. Wayne M. Wells, AICP Planner III City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756-5520 Phone: 727-562-4504 Fax: 727-562-4865 1 • Wells, Wayne From: Goulish, Andy [AGoulish@finfrockdmc.com] Sent: Tuesday, December 29, 2009 9:39 AM To: Wells, Wayne Cc: alex@keithzayac.com; richard@keithzayac.com Subject: RE: DVA2009-00004, 311 S. Gulfview Blvd. - Revised Development Agreement Attachments: Surf-Style Colored Elev (S&E).pdf; image001.png Andrew J. Goulish, PE / P.rgject Manager, Constriction 2400 Apopka Boulevard / Apopka, FL 32703 T: 407.293.4000 / C: 407.402.3797 / F: 407.367.246S a)?oulishC-finfi-od, dmc.com EWER K h tto:%- Nvww. tinfrockdmc.com NOTICE: The information contained in this e-mail transmission is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying; distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please promptly notify the sender by reply e-mail, and then destroy all copies of the transmission. From: Wayne.Wells@myClearwater.com [mailto:Wayne.Wells@myClearwater.com] Sent: Tuesday, December 29, 2009 9:29 AM To: Goulish, Andy Cc: alex@keithzayac.com; richard@keithzayac.com Subject: DVA2009-00004, 311 S. Gulfview Blvd. - Revised Development Agreement Andy - Could you please send me pdf's of the color elevations and perspective drawings for my electronic files? I also have the press asking for them. Thanks. Wayne M. Wells, A/CP Planner III City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756-5520 Phone: 727-562-4504 Fax: 727-562-4865 • • Wells, Wayne From: Goulish, Andy [AGoulish@finfrockdmc.com] Sent: Tuesday, December 29, 2009 9:37 AM To: Wells, Wayne Cc: alex@keithzayac.com; richard@keithzayac.com Subject: RE: DVA2009-00004, 311 S. Gulfview Blvd. - Revised Development Agreement Attachments: Surf-Style Perspective (West).pdf; Surf-Style Perspective (East).pdf; image001.png Wayne, Attached are the Perspectives. The Colored Elevations will follow in two separate emails due to size. Thanks, Andy Andrew J. Goulish, PE / Project Manager, Construction 2400 Apopka Boulevard / Apopka, FL 32-1,03 T: 407.293.4000 / C: 407.402.3797 / F: 407.367.2468 agoul ish_tin fi-ock dmc. com FINFROCK?* http://wwNv. 41 nfiockdmc.coin NOTICE: The information contained in this e-mail transmission is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please promptly notify the sender by reply e-mail, and then destroy all copies of the transmission. From: Wayne.Wells@myClearwater.com [mailto:Wayne.Wells@myClearwater.com] Sent: Tuesday, December 29, 2009 9:29 AM To: Goulish, Andy Cc: alex@keithzayac.com; richard@keithzayac.com Subject: DVA2009-00004, 311 S. Gulfview Blvd. - Revised Development Agreement Andy - Could you please send me pdf's of the color elevations and perspective drawings for my electronic files? I also have the press asking for them. Thanks. Wayne M. Wells, A/CP Planner III City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756-5520 Phone: 727-562-4504 E Fax: 727-562-4865 Wells, Wayne From: Goulish, Andy [AGoulish@finfrockdmc.com] Sent: Monday, December 28, 2009 10:57 AM To: Wells, Wayne Subject: RE: DVA2009-00004, 311 S. Gulfview Blvd. - Revised Development Agreement Attachments: DVA 2009-00004 Exhibit B.1 Conceptual Plans - Civil 1 of 3.pdf; image001.png Andrew J. Goulish, PE / Project Mana<>er. Construction 2400 Apopka Boulevard / Apopka, FL, 32703 T: 407 293.4000 / C: 407.402.3797 / F: 407.367.2468 agouIish(Fr.frnfrock dinc. coin FI F I a fkCSt?''• ut_NL?+G[ V k I •C4sd5'?!yrt". hap:/ ?rw?K.{infrocUtnc com NOTICE: The information contained in this e-mail transmission is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please promptly notify the sender by reply e-mail; and then destroy all copies of the transmission. From: Wayne.Wells@myClearwater.com [mailto:Wayne.Wells@myClearwater.com], Sent: Monday, December 28, 2009 10:02 AM To: alex@keithzayac.com Cc: richard@keithzayac.com; Goulish, Andy; Gina.Clayton@myClearwater.com; Ro_bert.Tefft@MyClearwater.com; Pam.Akin@myClearwater.com; Sherry.Watkins@myClearwater.com Subject: DVA2009-00004, 311 S. Gulfview Blvd. - Revised Development Agreement Alex - On December 23, 2009, 1 received an electronic copy of the Revised Development Agreement from Andy Goulish. Of the Exhibits, the following is still missing: Exhibits B, portion of Exhibit D (Exhibits 1 and 2), portion of Exhibit E (Exhibit A), portion of Exhibit F (Exhibits A and C), Exhibit G, Exhibit J, Exhibit K, portion of Exhibit L (Exhibits A, A-1 and B) and Exhibit M. As we are trying to send out the Development Agreement to the CDB soon (today or tomorrow) for their meeting on January 5th and I have to have the information into the computer today for the City Council meeting on January 14th, I was wondering if I should be expecting any supplements today and/or tomorrow (?). Could you please let me know so that I know in what direction to go? Wayne M. Wells, AICP Planner III City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756-5520 Phone: 727-562-4504 Fax: 727-562-4865 • Wells, Wayne From: Goulish, Andy [AGoulish@finfrockdmc.com] Sent: Monday, December 28, 2009 10:57 AM To: Wells, Wayne Subject: RE: DVA2009-00004, 311 S. Gulfview Blvd. - Revised Development Agreement Attachments: DVA 2009-00004 Exhibit B.2 Conceptual Plans - Civil 2 of 3.pdf; image001.png Andrew J. Goulish, PE / Project Manager, Constl-uction 2400 Apopka Boulevard / .Apopka, FL 32703 T: 407.293.4000 / C: 407.402.3797 / F: 407.367.2468 a?,oulisli(F finfroc,kdmc.com FINFROCK. http:-%)xww. fm f rockdma.com NOTICE: The information contained in this e-mail transmission is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please promptly notify the sender by reply e-mail; and then destroy all copies of the transmission. From: Wayne.Wells@myClearwater.com [mailto:Wayne.Wells@myClearwater.com] Sent: Monday, December 28, 2009 10:02 AM To: alex@keithzayac.com Cc: richard@keithzayac.com; Goulish, Andy; Gina.Clayton@myClearwater.com; Robert.Tefft@MyClearwater.com; Pam.Akin@myClearwater.com; Sherry.Watkins@myClearwater.com Subject: DVA2009-00004, 311 S. Gulfview Blvd. - Revised Development Agreement Alex - On December 23, 2009, 1 received an electronic copy of the Revised Development Agreement from Andy Goulish. Of the Exhibits, the following is still missing: Exhibits B, portion of Exhibit D (Exhibits 1 and 2), portion of Exhibit E (Exhibit A), portion of Exhibit F (Exhibits A and C), Exhibit G, Exhibit J, Exhibit K, portion of Exhibit L (Exhibits A, A-1 and B) and Exhibit M. As we are trying to send out the Development Agreement to the CDB soon (today or tomorrow) for their meeting on January 5th and I have to have the information into the computer today for the City Council meeting on January 14th, I was wondering if I should be expecting any supplements today and/or tomorrow (?). Could you please let me know so that I know in what direction to go? Wayne M. Wells, AICP Planner III City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756-5520 Phone: 727-562-4504 • Fax: 727-562-4865 . . I 0 9 Wells, Wayne From: Goulish, Andy [AGoulish@finfrockdmc.com] Sent: Monday, December 28, 2009 10:57 AM To: Wells, Wayne Subject: RE: DVA2009-00004, 311 S. Gulfview Blvd. - Revised Development Agreement Attachments: DVA 2009-00004 Exhibit B.3 Conceptual Plans - Civil 3 of 3.pdf; image001.png Andrew J. Goulish, PE / Project Manager. Construction 2400 Apopka Boulevard / Apopka, FL. 32703 T: 407.293.4000 / C: 407.402.3797 / F: 407.367.2468 agouli sh<<r:finfro(i dmc.com F N OCK G??I?h:•k!.AMI f.fl.G 46F3F:E•Gd3313 k1;?.t ba, %hvww.finfrockdmc.corn NOTICE: The information contained in this e-mail transmission is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please promptly notify the sender by reply e-mail, and then destroy all copies of the transmission. From: Wayne.Wells@myClearwater.com [mailto:Wayne.Wells@myClearwater.com] Sent: Monday, December 28, 2009 10:02 AM To: alex@keithzayac.com Cc: richard@keithzayac.com; Goulish, Andy; Gina.Clayton@myClearwater.com; Robert.Tefft@MyClearwater.com; Pam.Akin@myClearwater.com; Sherry.Watkins@myClearwater.com Subject: DVA2009-00004, 311 S. Gulfview Blvd. - Revised Development Agreement Alex - On December 23, 2009, 1 received an electronic copy of the Revised Development Agreement from Andy Goulish. Of the Exhibits, the following is still missing: Exhibits B, portion of Exhibit D (Exhibits 1 and 2), portion of Exhibit E (Exhibit A), portion of Exhibit F (Exhibits A and C), Exhibit G, Exhibit J, Exhibit K, portion of Exhibit L (Exhibits A, A-1 and B) and Exhibit M. As we are trying to send out the Development Agreement to the CDB soon (today or tomorrow) for their meeting on January 5th and I have to have the information into the computer today for the City Council meeting on January 14th, I was wondering if I should be expecting any supplements today and/or tomorrow (?). Could you please let me know so that I know in what direction to go? Wayne M. Wells, AICP Planner III City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756-5520 Phone: 727-562-4504 Fax: 727-562-4865 jljm?: 'A 10 Wells, Wayne From: Goulish, Andy [AGoulish@finfrockdmc.com] Sent: Monday, December 28, 2009 10:57 AM To: Wells, Wayne Subject: RE: DVA2009-00004, 311 S. Gulfview Blvd. - Revised Development Agreement Attachments: DVA 2009-00004 Exhibit B.4 Conceptual Plans - Building.pdf; image001.png Andrew J. Goulish, PE / Proiect Manager. Construction 2400 Apopka Boulevard / ,Apopka, Fl.. 32703 T: 407.293.4000 / C: 407.402.3797 / F: 407.36 7.2468 agoul i sh6r .fi nfro& dinc. coin Fp* I ?rVa,h.•.k54h'zr r,<^._ ws , ?_ O?fSTa'J t;S http:/hvww. f in f i•ockci rnc.corn NOTICE: The information contained in this e-mail transmission is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please promptly notify the sender by reply e-mail, and then destroy all copies of the transmission. From: Wayne.Wells@myClearwater.com [mailto:Wayne.Wells@myClearwater.com] Sent: Monday, December 28, 2009 10:02 AM To: alex@keithzayac.com Cc: richard@keithzayac.com; Goulish, Andy; Gina.Clayton@myClearwater.com; Robert.Tefft@MyClearwater.com; Pam.Akin@myClearwater.com; Sherry.Watkins@myClearwater.com Subject: DVA2009-00004, 311 S. Gulfview Blvd. - Revised Development Agreement Alex - On December 23, 2009, 1 received an electronic copy of the Revised Development Agreement from Andy Goulish. Of the Exhibits, the following is still missing: Exhibits B, portion of Exhibit D (Exhibits 1 and 2), portion of Exhibit E (Exhibit A), portion of Exhibit F (Exhibits A and C), Exhibit G, Exhibit J, Exhibit K, portion of Exhibit L (Exhibits A, A-1 and B) and Exhibit M. As we are trying to send out the Development Agreement to the CDB soon (today or tomorrow) for their meeting on January 5th and I have to have the information into the computer today for the City Council meeting on January 14th, I was wondering if I should be expecting any supplements today and/or tomorrow (?). Could you please let me know so that I know in what direction to go? Wayne M. Wells, A/CP Planner III City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756-5520 Phone: 727-562-4504 • Fax: 727-562-4865 0 0 Wells, Wayne From: Goulish, Andy [AGoulish@finfrockdmc.com] Sent: Monday, December 28, 2009 10:57 AM To: Wells, Wayne Subject: RE: DVA2009-00004, 311 S. Gulfview Blvd. - Revised Development Agreement Attachments: DVA 2009-00004 Exhibit B.5 Conceptual Plans - Wave Wall.pdf; image001.png Andrew J. Goulish, PE / Project Manager. Construction 2400 Apopka Boulevard / Apopka, Fl, 32703 T: 407.293.4000 / C: 407.402.3797 / F: 407.367.2468 agoulish(ki.finfrod dmc.com R, Q@tIC:±C+NI.K^UF,EC' u.ot_-y.gy?fiFspGS httn:i.- www.f irn fiockclmc.eom NOTICE: The information contained in this e-mail transmission is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please promptly notify the sender by reply e-mail; and then destroy all copies of the transmission. From: Wayne.Wells@myClearwater.com [mailto:Wayne.Wells@myClearwater.com] Sent: Monday, December 28, 2009 10:02 AM To: alex@keithzayac.com Cc: richard@keithzayac.com; Goulish, Andy; Gina.Clayton@myClearwater.com; Robert.Tefft@MyClearwater.com; Pam.Akin@myClearwater.com; Sherry.Watkins@myClearwater.com Subject: DVA2009-00004, 311 S. Gulfview Blvd. - Revised Development Agreement Alex - On December 23, 2009, 1 received an electronic copy of the Revised Development Agreement from Andy Goulish. Of the Exhibits, the following is still missing: Exhibits B, portion of Exhibit D (Exhibits 1 and 2), portion of Exhibit E (Exhibit A), portion of Exhibit F (Exhibits A and C), Exhibit G, Exhibit J, Exhibit K, portion of Exhibit L (Exhibits A, A-1 and B) and Exhibit M. As we are trying to send out the Development Agreement to the CDB soon (today or tomorrow) for their meeting on January 5th and I have to have the information into the computer today for the City Council meeting on January 14th, I was wondering if I should be expecting any supplements today and/or tomorrow (?). Could you please let me know so that I know in what direction to go? Wayne M. Wells, AICP Planner III City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756-5520 Phone: 727-562-4504 0 Fax: 727-562-4865 Y ? ? ? • Wells, Wayne From: Goulish, Andy [AGoulish@finfrockdmc.com] Sent: Monday, December 28, 2009 10:58 AM To: Wells, Wayne Subject: RE: DVA2009-00004, 311 S. Gulfview Blvd. - Revised Development Agreement Attachments: DVA 2009-00004 Exhibit B.6 Conceptual Plans - Wave Wall 2 of 2.pdf; image001.png Andrew J. Goulish, PE / Project Manager. Construction 2400.Apopk:a Boulevard / Apopka, F.L. 32703 1": 407293.4000 / C;: 407.402.3797 / F: 407.367.2468 aj?'oulishiiufinfro& dinc. coin F I N F_ R 0C K Ila :ir,?\,w-w.finfi•ockclrnc.com NOTICE: The information contained in this e-mail transmission is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error. please promptly notify the sender by reply e-mail, and then destroy all copies of the transmission. From: Wayne.Wells@myClearwater.com [mailto:Wayne.Wells@myClearwater.com] Sent: Monday, December 28, 2009 10:02 AM To: alex@keithzayac.com f Cc: richard@keithzayac.com; Goulish, Andy; Gina.Clayton@myClearwater.com; Robert.Tefft@MyClearwater.com; Pam.Akin@myClearwater.com; Sherry.Watkins@myClearwater.com Subject: DVA2009-00004, 311 S. Gulfview Blvd. - Revised Development Agreement Alex - On December 23, 2009, 1 received an electronic copy of the Revised Development Agreement from Andy Goulish. Of the Exhibits, the following is still missing: Exhibits B, portion of Exhibit D (Exhibits 1 and 2), portion of Exhibit E (Exhibit A), portion of Exhibit F (Exhibits A and C), Exhibit G, Exhibit J, Exhibit K, portion of Exhibit L (Exhibits A, A-1 and B) and Exhibit M. As we are trying to send out the Development Agreement to the CDB soon (today or tomorrow) for their meeting on January 5th and I have to have the information into the computer today for the City Council meeting on January 14th, I was wondering if I should be expecting any supplements today and/or tomorrow (?). Could you please let me know so that I know in what direction to go? Wayne M. Wells, A/CP Planner III City of Clearwater 100 South Myrtle Avenue k "S "A Clearwater, FL 33756-5520 Phone: 727-562-4504 Fax: 727-562-4865 2 • Wells, Wayne From: Goulish, Andy [AGoulish@finfrockdmc.com] Sent: Monday, December 28, 2009 11:00 AM To: Wells, Wayne Subject: RE: DVA2009-00004, 311 S. Gulfview Blvd. - Revised Development Agreement Attachments: DVA 2009-00004 Exhibit L Put Agreement.DOC; DVA 2009-0004 Exhibit L PUT Agreement Form.pdf; image001.png Exhibit L Andrew J. Goulish, PE / Project Manager, Constniction 2400 Apopka F3oufevard / Apopka, FL 32703 T: 407.293.4000 / C: 407.4023797 / F: 407.367?46S a our lish6lsfinGockdmcxoni FINFnut;K It C. 34E r,. NI??VV.a-..F?w ?.r..7NY'J1!?•; hup://wNN;w.finfrockdmc.com NOTICE: The information contained in this e-mail transmission is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please promptly notify the sender by reply e-mail, and then destroy all copies of the transmission. From: Wayne.Wells@myClearwater.com [maiIto: Wayne.Wells@myClearwater.com], Sent: Monday, December 28, 2009 10:02 AM - To: alex@keithzayac.com Cc: richard@keithzayac.com; Goulish, Andy; Gina.Clayton@myClearwater.com; Robert.Tefft@MyClearwater.com; Pam.Akin@myClearwater.com; Sherry.Watkins@myClearwater.com Subject: DVA2009-00004, 311 S. Gulfview Blvd. - Revised Development Agreement... Alex - On December 23, 2009, 1 received an electronic copy of the Revised Development Agreement from Andy Goulish. Of the Exhibits, the following is still missing: Exhibits B, portion of Exhibit D (Exhibits 1 and 2), portion of Exhibit E (Exhibit A), portion of Exhibit F (Exhibits A and C), Exhibit G, Exhibit J, Exhibit K, portion of Exhibit L (Exhibits A, A-1 and B) and Exhibit M. As we are trying to send out the Development Agreement to the CDB soon (today or tomorrow) for their meeting on January Sth and I have to have the information into the computer today for the City Council meeting on January 14th, I was wondering if I should be expecting any supplements today and/or tomorrow (?). Could you please let me know so that I know in what direction to.go? Wayne M. Wells, AICP Planner III City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756-5520 Phone: 727-562-4504 E Fax: 727-562-4865 0 0 Wells, Wayne From: Goulish, Andy [AGoulish@finfrockdmc.com] Sent: Monday, December 28, 2009 11:12 AM To: Wells, Wayne; alex@keithzayac.com Cc: richard@keithzayac.com; Clayton, Gina; Tefft, Robert; Akin, Pam; Watkins, Sherry; LashN@gtlaw.com; loughling@gtlaw.com; Gilad Ovaknin; Alex Plisko Subject: RE: DVA2009-00004, 311 S. Gulfview Blvd. - Revised Development Agreement Attachments: image001.png Wayne, Per our telephone conversation you should have all of the electronic files necessary for Exhibit B. As discussed, the files I sent last week must have been too large for your server. I am assuming that the remaining items will be addressed by the legal staff over the next week or so prior to the City Council Meeting. Thanks, Andy Andrew J. Goulish, PE / Project Manager, Construction 2400 Apopka Boulevard / Apopka, FL 32703 T: 407.293.4000 / C: 407.402.3797 / F: 407.36 7.2468 ,oulishra finfrockdme.com aP INFROC ccairG ..?! •. kr?f.•? x u RL•?Rf??ri i ? tr t,8 http:. %w-'v'.v.finf-ockdmc.com NOTICE: The information contained in this e-mail transmission is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please promptly notify the sender by reply e-mail: and then destroy all copies of the transmission. From: Wayne.Wells@myClearwater.com [mailto:Wayne.Wells@myClearwater.com] Sent: Monday, December 28, 2009 10:02 AM To: alex@keithzayac.com Cc: richard@keithzayac.com; Goulish, Andy; Gina.Clayton@myClearwater.com; Robert.Tefft@MyClearwater.com; Pam.Akin@myClearwater.com; Sherry.Watkins@myClearwater.com Subject: DVA2009-00004, 311 S. Gulfview Blvd. - Revised Development Agreement Alex - On December 23, 2009, 1 received an electronic copy of the Revised Development Agreement from Andy Goulish. Of the Exhibits, the following is still missing: Exhibits B, portion of Exhibit D (Exhibits 1 and 2), portion of Exhibit E (Exhibit A), portion of Exhibit F (Exhibits A and C), Exhibit G, Exhibit J, Exhibit K, portion of Exhibit L (Exhibits A, A-1 and B) and Exhibit M. Y" , As we are trying to send out the DOlopment Agreement to the CDB soonloday or tomorrow) for their meeting on January 5th and I have to have the information into the computer today for the City Council meeting on January 14th, I was wondering if I should be expecting any supplements today and/or tomorrow (?). Could you please let me know so that I know in what direction to go? Wayne M. Wells, A/CP Planner III City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756-5520 Phone: 727-562-4504 Fax: 727-562-4865 0 0 Wells, Wayne From: Wells, Wayne Sent: Monday, December 28, 2009 10:02 AM To: alex@keithzayac.com Cc: 'richard@keithzayac.com; 'AGoulish@finfrockdmc.com; Clayton, Gina; Tefft, Robert; Akin, Pam; Watkins, Sherry Subject: DVA2009-00004, 311 S. Gulfview Blvd. - Revised Development Agreement Alex - On December 23, 2009, 1 received an electronic copy of the Revised Development Agreement from Andy Goulish. Of the Exhibits, the following is still missing: Exhibits B, portion of Exhibit D (Exhibits 1 and 2), portion of Exhibit E (Exhibit A), portion of Exhibit F (Exhibits A and C), Exhibit G, Exhibit J, Exhibit K, portion of Exhibit L (Exhibits A, A-1 and B) and Exhibit M. As we are trying to send out the Development Agreement to the CDB soon (today or tomorrow) for their meeting on January 5th and I have to have the information into the computer today for the City Council meeting on January 14th, I was wondering if I should be expecting any supplements today and/or tomorrow (?). Could you please let me know so that I know in what direction to go? Wayne M. Wells, A/CP Planner III City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756-5520 Phone: 727-562-4504 Fax: 727-562-4865 807-09 PERMITS Keith Zavac & Associates, Inc. Post Office Box 1156 Civil Engineering, Landscape Architecture, Planning Safety Harbor, FL 34695 alex@keithzayac.com Mr. Wayne M. Wells, AICP December 24, 2009 City of Clearwater 100 South Myrtle Avenue Via: Hand Delivery Clearwater, FL 33756 RE: DVA2009 - 00004 ...Surf Style Parking Garage ...311 South Gulfview Boulevard (including 305,309 and 315 South Gulfview Boulevard and 320 Coronado Drive) KZA Project No. 807-09 Dear Mr. Wells: With regard to the CDB continued application on January 5, 2009, the following items are enclosed respectfully: 1) fifteen [ 15] bound copies of the Development Agreement between L.O.M., Inc. and the City of Clearwater [along with supporting exhibits] 2) one [ 1 ] unbound copy of the Development Agreement between L.O.M., Inc. and the City of Clearwater [along with supporting exhibits] If there are any questions, please contact me at 813.205.3615. As always, thank you for your invaluable assistance. Sincerely, Alex L. Azan, P.E. Keith Zayac & Associates, Inc. Cc: FILE 01 11 DEC Z 4 2009 F D E V Eti'7"L: ? v!Cy -' DEPT CITY OF C'?_ Er;RWA1'E,-z1 I:\Surf Style Parking Garage\Permits\CityOtClearwater\CityClearwater WayneWells_DVAsubmittal_Dec24 2009_.doc • • Wells, Wayne From: Alex azan [Alex@keithzayac.com] Sent: Wednesday, December 23, 2009 11:58 AM To: Wells, Wayne; AGoulish@finfrockdmc.com Cc: richard@keithzayac.com Subject: RE: Revised Development Agreement Attachments: SurfStyleSketh&DescrEasmeniAlongCoronado-Dec22_2009.pdf; image002.gif Holiday Greetings Wayne: Attached is a scanned copy of the signed & sealed easement along Coronado. I will deliver 1 original and 15 copies to your office before 4PM today. Please contact me if there are any questions. Thank you, Alex L. Azan, P.E. 813.205.3615 Keith Zayac & Associates, Inc. MAILING ADDRESS: Post Office Box 1156 Safety Harbor, FL 34695 Physical Address: 14001 63rd Way North Clearwater, FL 33760 From: Wayne.Wells@myClearwater.com [mailto:Wayne.Wells@myC[earwater.com] Sent: Tuesday, December 22, 2009 4:12 PM To: AGoulish@finfrockdmc.com Cc: alex@keithzayac.com; Gina.Clayton@myClearwater.com; Robert.Tefft@MyClearwater.com; Leslie.Dougall- Sides@myClearwater.com; Pam.Akin@myClearwater.com Subject: Revised Development Agreement Andy - Due to the Christmas holidays, there are a number of City employees taking vacation time off. Certain information and attachments have to be uploaded into the City Council agenda system, with which I am unfamiliar with, which is why I had requested this by 3 pm today as my person that would upload such is gone after today. So, per internal City schedules, I must have everything into the agenda system on Monday. I do not want to wait that long because of the holidays, as I will now have to have other individuals upload my information. Time is of the essence, as deadlines must be met for City Council. Additionally, I must get information out to the CDB for their special meeting. Therefore, you have probably gathered that, based on your request, I am relenting to your requested extension (although it doesn't sound like I am going to get it all tomorrow either). However, please do not push me to the end time, potentially where I may not have anyone here to upload the information and deadlines missed. Wayne From: Goulish, Andy [mailto:AGoulish@finfrockdmc.com] Sent: Tuesday, December 22, 2009 3:03 PM To: Wells, Wayne Cc: alex@keithzayac.com Subject: FW: Revised Development Agreement Wayne, f • • It appears that the final touches are still being made on the Development Agreement. We should have a majority of the Exhibits by tomorrow. Please let me know if we can be granted a time extension to provide this information or if you have had conversations with the City's Legal Department. Thanks, Andy Andrew J. Goulish, PE 1 Project Manager, Construction. 2404 Apopka Boulevard / Apopka, FL 32743 T: 447.293.4400 t C: 407.402.3797 / F: 407.367.2468 a?;oulishr:;finfrock dmc.com FINFROCK, http:ir?wwv.finfrocWmc.com NOTICE: The information contained in this e-mail transmission is intended only for the use of the intended recipient, If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please promptly notify the sender by reply e-mail. and then destroy all copies of the transmission. From: LashN@gtlaw.com [ ma ilto: Lash N @gtlaw.com] Sent: Tuesday, December 22, 2009 11:23 AM To: gili@surf-style.com; Goulish, Andy Cc: alexplisko@verizon.net Subject: RE: Revised Development Agreement I am waiting for Pam Akin's assistant to call me back. Will let you know once she does. Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein. The information contained in this transmission may contain privileged and confidential information. It is intended only for the use of the person(s) named above. If you are not the intended recipient, you are hereby notified that any review, dissemination, distribution or duplication of this communication is strictly prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message. To reply to our email administrator directly, please send an email to 12ostmaster@gtlaw.com. From: Gilad Ovaknin [mailto:gili@surf-style.com] Sent: Tuesday, December 22, 2009 9:48 AM To: Goulish, Andy Cc: Alex Plisko; Lash, Nancy (Shld-Mia-RE) Subject: RE: Revised Development Agreement Andy, The legal documents have not been finalized yet. City attorney had indicated that she send comments on the development agr9ent; Put agreement and we are still finalizing the version of the condo documents per city comments. Our attorney , Nancy , had put a call into Pam Akin, city attorney but it seems she is out until the 4cn We are trying to communicate with her assistant to see how we approach the submittal and 1 will return to you about it. I also need from you or KZA office the legal description of the easement LOM will grant the city on Coronado lane so we can finalize this. Thanks SKETCH of DESCRTPT? THIS IS NOT A BOUNDARY SURVEY 4? ?_ SGALE : 1" = 50' 0' 50' 100' + r f I I I II LOT '59 I 1 I I + /? II ?.l r~__?_ I I? (P)__` - ( -LOT 106 0 Rod1aF ? ? I ? ( I - .? I S81- ' ~ if LJj 59 43' LOT 60 E r r ) I Southerly 1/2 I 01 j -- _ ? _ LOT 107 _ - - I - I coI I I _ _--J - '-- r I r = ( LOT 108 + {L,( 1 LOT 61 1 ( ^ I J , ( I I ( (( I I LOT,109 I II I LOT 62 j- __- _- I I ?I '?? J r 35' I I I LOT 110 _Radfor l~ ? _ _ I LOT I - 63 I I N80'56' ' W 105 ' CURVE DATA LOT 111 11..00 CURVE RADIUS DELTA ANGLE ARCIENGTH CHORD LENGTH CHORO'BEARING C1 6216.52' 01'36'1.0" 173:91' 173.90' N08'53'29"E C2 6227.52' 01'36'07" 174.11' 174,11' S08'53'26"W r J I ?J \111r l I I Nartteast Ny Corner S uth 1/2' Lot 107 , J w+ N D I r O +? I QI? II Q ?. I 0 U + Vr ( 'l I _?D' 1 Cot 110 1 I Corner If DESCRIPTION: '(proposed access easement) The Easterly 11.0 feel of the Southerly one-half' of Lot 107 and the Easterly 91.0 feet of Lots 108 and 109 and 110, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plot Book 13, Pages 12 and 1.3, Public Records of Pinellas County, Florida, more particularly described as follows: Begin at the Southeasterly comer of said Lot 110; thence. N80'56'05'W, along the Southerly boundary thereof a distance of 11.00 feet: thence 173.91 feet along the arc of a curve to the left having o radius of 6216.52 feet, subtended by a chord distance of 9.73.90 feet; 'bearing 1JOB'53'29"W to a point of intersection with the. Northerly boundary of the Southerly one-half of said Lot 107; thence S81'59'43"E, along said Northerly boundary a distance of 11.00 feet to the Northeasterly comer of the South one-half of said Lot 107; thence 174.11 feet along the Westerly right of way 'line of Coronado. Drive and along the arc of a curve to the right having a radius of 6227.52 feet, subtended by a chord distance of 174.11 feet, bearing SOS'53'26.?W, to the Point of Beginning. NOTES: LEGEND 1. NO UNDERGROUND INSTALLATIONS OR IMPROVEMENTS HAVE BEEN LOCATED EXCEPT AS SHOWN. 2. NO INSTRUMENTS OF RECORD REFLECTING EASEMENTS, RIGHT OF WAY AND/OR OWNERSHIP WERE ID IDENTIFICATION FURNISHED TO THIS SURVEYOR EXCEPT AS SHOWN. PLS LO PROFESSIONAL LAND SURJEYOR O BUSINESS 3. THIS SKETCH DOES NOT REFLECT OR DETERMINE OWNERSHIP. P PLAT IN PUT IN FOFWAnON 4. USE OF THIS SKETCH BY ANYONE OTHER THAN THOSE PREPARED FOR WILL BE THE RE-USERS 0 CEO., DESCRIPTION INFORMATION SOLE RISK WITHOUT LIABILITY TO THE SURVEYOR. F FIELD MFASURED 5. THE SKETCH WAS PREPARED WITHOUT'THE BENEFIT OF A CURRENT TIRE COMMITMENT AND IS POE POINT or BEGINNING SUBJECT TO EASEMENTS. RIGHTS-OF-WAY AND SIMILAR MATTERS OF TITLE. POD. POINT of COMMENCEAENT . 6. MERIDIAN BASED ON THE WESTERLY RIGHT OF WAY LINE OF CORONADO DRIVE AS BEARING S08'53'26W (ASSUMED). Prepared for and Certified To: DATE: Keith ZOyac and AssocioteS, Inc. December 22, 2009 SUNCOAST LAND SURVEYING, Inc. 111 FOREST LADLES BOULEVARD OLDSMAR. FLA. 34677 BOUNDARY - TOPOGRAPHIC - CONSTRUCTION STAKEOUT LB 4513 PHONE: (813) 854-1342 FAX: (613) 655-6690 Drawing No. I 902602.dwg I ( Project No. 9026 Checked By KOM k, Feld Book Pages Drawn By ti;tl eT ?i € ?`' ;. - #. r SURVEYOR'S C??,i1%AATE•. I hereby cefify Ihot'the SYEICH deer tedttierrnn wes pek QrlneE under nny RESPONStBtE CHARGE on the dolb(s),shown.' aiA -1sB.fUe`. INIMUM ?TECFWICAL STANDARDS sot I.,% by the FLORIDA 8EUNb:OFrRRbFESstO?01 LAND `URVEYORS°s opter 61G17-6, FLORIDA ADMINISTRATIVE CODE pg;uant Io t t L47 _ ^??7 FLORI ?t ATTRES. 'NOT VALID waNouT,:TH5V UTURF AND THE bRk1ft4L 42 ISED SEAL OF A FLORIDA LICENSED SURVEIDR'. AND MAPPER LRY? GC;P,.nNa PLS No.5279 Wells, Wayne From: Goulish, Andy [AGoulish@finfrockdmc.com] Sent: Wednesday, December 23, 2009 2:05 PM To: Wells, Wayne Cc: alex@keithzayac.com; Clayton, Gina; Tefft, Robert; Dougall-Sides, Leslie; Akin, Pam Subject: RE: Revised Development Agreement Attachments: DVA 2009-00004 Development Agreement with Exhibits A, C, D-F, H, I, L.pdf; DVA 2009-00004 Development Agreement.DOC; DVA 2009-00004 Exhibit D Form of Condo Docs.DOC; DVA 2009-00004 Exhibit E Public Parking Covenant.DOC; DVA 2009-00004 Exhibit F Maintenance Agreement.DOC; DVA 2009-0004 Exhibit H List of Required Permits and Approvals.docx; DVA 2009-00004 Exhibit L Put Agreement.DOC; image001.png Importance: High Wayne, As requested attached are the Word and/or PDF files of the Surf-Style Development Agreement. The conceptual plans for Exhibit B will be forwarded in two additional emails due to size. Exhibits G, J, K and M are still lacking, of which Exhibit G will be the only one not supplied by the City. Alex Azan with KZA will be delivering 15 hard copies of the attached and following emails to you. Please let me know if you have any questions or comments. Thanks, Andy Andrew J. Goulish, PE / Project Manager, construction 2400 Apopka Boulevard / Apopka, FL 32703 I': 407.293.4000 / C: 407.402.3797 / F: 407.36'1.2468 ,,oulish a6nfrod<dmc.com ap FI;R. tatai?,..,, •.;ur?t^ u,; ..eras-?eCY http:;; ??1??? .finfi ockd mc.com NOTICE: The information contained in this e-mail transmission is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please promptly notify the sender by reply e-mail; and then destroy all copies of the transmission. From: Wayne.Wells@myClearwater.com [mailto:Wayne.Wells@myClearwater.com] Sent: Tuesday, December 22, 2009 4:12 PM To: Goulish, Andy Cc: alex@keithzayac.com; Gina.Clayton@myClearwater.com; Robert.Tefft@MyClearwater.com; Leslie.Dougall- Sides@myClearwater.com; Pam.Akin@myClearwater.com Subject: Revised Development Agreement Andy - Due to the Christmas holidays, there are a number of City employees taking vacation time off. Certain information and attachments have to be uploaded into the City Council agenda system, with which I am unfamiliar with, which is why I v ? had requested this by 3 pm today as Gerson that would upload such is gone a*oday. So, per internal City schedules, I must have everything into the agenda system on Monday. I do not want to wait that long because of the holidays, as I will now have to have other individuals upload my information. Time is of the essence, as deadlines must be met for City Council. Additionally, I must get information out to the CDB for their special meeting. Therefore, you have probably gathered that, based on your request, I am relenting to your requested extension (although it doesn't sound like I am going to get it all tomorrow either). However, please do not push me to the end time, potentially where I may not have anyone here to upload the information and deadlines missed. Wayne From: Goulish, Andy [mailto:AGoulish@finfrockdmc.com] Sent: Tuesday, December 22, 2009 3:03 PM To: Wells, Wayne Cc: alex@keithzayac.com Subject: FW: Revised Development Agreement Wayne, It appears that the final touches are still being made on the Development Agreement. We should have a majority of the Exhibits by tomorrow. Please let me know if we can be granted a time extension to provide this information or if you have had conversations with the City's Legal Department. Thanks, Andy Andrew J. Goulish, PE 1 Project Manager, Constntction 2400 Apopka Boulevard / Apopka, FI_ 32703 T: 407.293.4000 / C: 407.402.3797 / F 407.367 2468 agouhsh h finfaodcdmc.com FICK htt.u:'/www. f'infrockdmc.crnn NOTICE: The information contained in this e-mail transmission is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please promptly notify the sender by reply e-mail, and then destroy all copies of the transmission. From: LashN@gtlaw.com [ma i Ito: Lash N @gtlaw.com] Sent: Tuesday, December 22, 2009 11:23 AM To: gili@surf-style.com; Goulish, Andy Cc: alexplisko@verizon.net Subject: RE: Revised Development Agreement I am waiting for Pam Akin's assistant to call me back. Will let you know once she does. Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein. • E The information contained in this transmission may contain privileged and confidential information. It is intended only for the use of the person(s) named above. If you are not the intended recipient, you are hereby notified that any review, dissemination, distribution or duplication of this communication is strictly prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message. To reply to our email administrator directly, please send an email to postmastei.-@gtlaw.com. From: Gilad Ovaknin [mailto:gili@surf-style.com] Sent: Tuesday, December 22, 2009 9:48 AM To: Goulish, Andy Cc: Alex Plisko; Lash, Nancy (Shad-Mia-RE) Subject: RE: Revised Development Agreement Andy, The legal documents have not been finalized yet. City attorney had indicated that she will send comments on the development agreement; Put agreement and we are still finalizing the version of the condo documents per city comments. Our attorney , Nancy , had put a call into Pam Akin, city attorney but it seems she is out until the 4' We are trying to communicate with her assistant to see how we approach the submittal and I will return to you about it. I also need from you or KZA office the legal description of the easement LOM will grant the city on Coronado lane so we can finalize this. Thanks Wells, Wayne From: LashN@gtlaw.com Sent: Wednesday, December 23, 2009 10:56 AM To: Dewitt, Gina Cc: Wells, Wayne; Akin, Pam; Dougall-Sides, Leslie Subject: RE: GM08-92166-015: LOM DVA Gina, thank you for jumping on this today. I will let LOM know immediately. Enjoy your break and best wishes for the new year. Nancy Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments),-unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of. (1) avoiding penalties , under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein. The information contained in this transmission may contain privileged and confidential information. It is,intended. only for the use of the person(s) named above. If you are not the intended recipient, you are hereby notified that any review, dissemination, distribution or duplication of this communication is strictly prohibited. If you are not. the intended recipient, please contact the sender by reply email and destroy all copies of the original message. To reply to our email administrator directly, please send an email to postmaster« gElaw.com. From: Gina.Dewitt@myClearwater.com [mailto: Gina. Dewitt@myClearwater.com] Sent: Wednesday, December 23, 2009 10:13 AM To: Lash, Nancy (Shld-Mia-RE) Cc: Wayne.Wells@myClearwater.com; Pam.Akin@myClearwater.com; Leslie. Dougall-Sides@myClearwater.com_ Subject: GM08-92166-015: LOM DVA Per our conversation today, Pam is okay with your client submitting the current version of the development agreement and exhibits for the January CDB meeting. They are not final, but there are no changes that will need to be made to the actual terms of the agreement. Pam will be back on January 4, and she does have some minor clean ups she wants to make to the documents. Wayne, if you need assistance uploading the documents to Muniagenda, I can get that taken care of for you. Thanks Gina DeWitt Legal Office Administrator Clearwater City Attorney's Office 112 S. Osceola Ave. 3rd Floor Clearwater, FL 33756 727-562-4011 direct 727-562-4021 fax gina.dewitt@myclearwater.com 2 4'? • • Wells, Wayne From: Goulish, Andy [AGoulish@finfrockdmc.com] Sent: Tuesday, December 22, 2009 6:51 PM To: Wells, Wayne Cc: alex@keithzayac.com; Clayton, Gina; Tefft, Robert; Dougall-Sides, Leslie; Akin, Pam Subject: Re: Revised Development Agreement Attachments: image001.png Wayne, As always I appreciate your willingness to work with us on this submittal. I will do my best to provide you a complete package as soon as possible. Thanks, Andy From: Wayne.Wells@myClearwater.com To: Goulish, Andy Cc: alex@keithzayac.com ; Gina.Clayton@myClearwater.com ; Sides@myClearwater.com ; Pam.Akin@myClearwater.com Sent: Tue Dec 22 16:12:26 2009 Subject: Revised Development Agreement Andy - Robert.Tefft@MyClearwater.com ; Leslie.Dougall- Due to the Christmas holidays, there are a number of City employees taking vacation time off. Certain information and attachments have to be uploaded into the City Council agenda system, with which I am unfamiliar with, which is why I had requested this by 3 pm today as my person that would upload such is gone after today. So, per internal City schedules, I must have everything into the agenda system on Monday. I do not want to wait that long because of the holidays, as I will now have to have other individuals upload my information. Time is of the essence, as deadlines must be met for City Council. Additionally, I must get information out to the CDB for their special meeting. Therefore, you have probably gathered that, based on your request, I am relenting to your requested extension (although it doesn't sound like I am going to get it all tomorrow either). However, please do not push me to the end time, potentially where I may not have anyone here to upload the information and deadlines missed. Wayne From: Goulish, Andy [mailto:AGoulish@finfrockdmc.com] Sent: Tuesday, December 22, 2009 3:03 PM To: Wells, Wayne Cc: alex@keithzayac.com Subject: FW: Revised Development Agreement Wayne, It appears that the final touches are still being made on the Development Agreement. We should have a majority of the Exhibits by tomorrow. Please let me know if we can be granted a time extension to provide this information or if you have had conversations with the City's Legal Department. Thanks, Andy Andrew J. Goulish, PE / Project ;Manager, Construction 2400 Apopka Boulevard / Apopka, FL. 32_70411 T: 407.293.4000 / C: 407.402.3797 / F: 407367 2468 a_gooulishl r fnfrodcdmc_com b[Si6.Nt t?ni; v?L 4Ys.a Ei http:-/www.f'infrockdmc.com NOTICE: The information contained in this e-mail transmission is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please promptly notify the sender by reply e-mail, and then destroy all copies of the transmission. From: LashN@gtlaw.com [mailto:LashN@gtlaw.com] Sent: Tuesday, December 22, 2009 11:23 AM To: gili@surf-style.com; Goulish, Andy Cc: alexplisko@verizon.net Subject: RE: Revised Development Agreement I am waiting for Pam Akin's assistant to call me back. Will let you know once she does. Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed. , . herein. The information contained in this transmission may contain privileged and confidential information. It is intended only for the use of the person(s) named above. If you are not the intended recipient, you are hereby notified that any review, dissemination, distribution or duplication of this communication is strictly prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message. To reply to our email administrator directly, please send an email to postmaster@g- law.com. From: Gilad Ovaknin [ma i Ito: gil i@surf-style.com] Sent: Tuesday, December 22, 2009 9:48 AM To: Goulish, Andy Cc: Alex Plisko; Lash, Nancy (Shad-Mia-RE) Subject: RE: Revised Development Agreement Andy, The legal documents have not been finalized yet. City attorney had indicated that she will send comments on the development agreement; Put agreement and we are still finalizing the version of the condo documents per city comments. Our attorney , Nancy, had put a call into Pam Akin, city attorney but it seems she is out until the 0' We are trying to communicate with her assistant to see how we approach the submittal and I will return to you about it. I also need from you or KZA office the legal description of the easement LOM will grant the city on Coronado lane so we can finalize this. Thanks s • Wells, Wayne From: Richard Marcel, LEED AP NC [Richard@Keithzayac.com) Sent: Monday, December 21, 2009 9:21 AM To: Doherty, Steve Cc: alex@keithzayac.com; sheryl@keithzayac.com; Wells, Wayne Subject: Surf Style - Progress Energy Letter of No Objection Attachments: Progress Energy_VacationNoObjection_Nov24_2009.pdf; image001.gif Steve, Per our conversation this morning attached is a copy of Surf Style Parking Garage Progress Energy Letter of No Objection. Please give me a call if you have any questions. Thank you, Richard Marcel, LEED AP NC Keith Zayac & Associates, Inc. 14001 63rd Way North Clearwater, FI 33760 727-488-1002 DISCLAIMER OF LIABILITY Keith Zayac & Associates, Inc. (KZA) makes the electronically stored data available for information purposes only. No warranty, either expressed or implied, is made regarding the accuracy or reliability of the aforementioned data. KZA reserves the right to revise, update, and improve its electronically stored data without notice and assumes no responsibility for any images which may arise as a result of the use of its data. The user agrees to verify the data to ascertain its accuracy for the intended use. KZA makes every effort to ensure the data is virus free; however, KZA assumes no responsibility for damages caused by the installation/use of the enclosed data. Use of the enclosed data indicates the user accepts the conditions contained herein. Please note, in some cases.-final.approval may not have been issued by all the permitting agencies; hence, modifications, which are not depicted on the enclosed electronically stored data, may be required. Unless other arrangements have been agreed to, use of the electronically stored data for any activities shall proceed solely at the risk and responsibility of recipient/user of said electronically stored data. Additionally, any use of the enclosed electronically stored data shall relieve KZA and/or any of its employees from liability/responsibility regarding any modifications to said electronically stored data which may be required due to reviewing agencies' comments and/or final design revisions/modifications. b' -.0 November 24, 2009 Keith Zayac &.Associations, Inc. 701 S. Enterprise `Road. E. Ste. 404 Safety Harbor, FL. 34695: 0 ?D?I?6?IId? O' 1l1? DEC o 1 2009 RE: Request to vacate: East 35 foot. Right Of Way of S. Gulfview Blvd. (311 S. Gulfvie)V Blvd.) Section 07, Toivush p ,29 South, Range 15 East of Pinellas County, Florida Dear Sir or Madame: 907- ?C?: h? ? rs Please be advised that Florida Power Corporation d/b/a Progress Energy Distribution Engineering has "NO OBJECTION" to the vacation and abandonment of the East 35 foot Right Of Way of & Gulfview Blvd. being more particularly described as: The East 35 foot Right Of Way of South Gulfiiew Boulevard lying adjacent to Lots 60, 61, and 62, LLOYD-WI-IrrE-SKINNER SUBDIVION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. This vacation and abandonment is contingent upon receipt of a separate letter of approval from PEF's Transmission Department. Should you need to 'contact Transmission, please call Todd Boyer, at (407)942-9374. If -I can be.of further assistance, please do not hesitate to contact me. Sincerely, I-Te Tuyet a Land Agent Distribution Right of Way - Florida 2166,Pabuetto Street - Cleanvater • Florida • 33765 Telephone (727) 561-5651 • Facsimile (737) 563-5753 E-mail: Tuyet.La a pgnmailxom • Keith Zayac & Associates., Inc.- Civil'En-ineerin?_. Landseape Architecture. Planning September 2, 2009 Vern Harris Progress Energy 3300 Exchange Place MC: NP4B Lake Mary, FL 32746, RE: SURF STYLE PARKING GARAGE Dear Mr. Harris `C G Rlr? S? se ? 7111 S. E'_nterprise Road E.. Ste 4041 1 Soap Safety Harbor. FL, 3469_? (727) 793-9888 Plione (737) 793-9355 Fas L?nh c !L?ithi ayac: uni 807'G F139351 l-C36000? I? Z/2- DEC o 12009 Attached please find one copy of the project survey and site plan showing the proposed 35-:foot vacation of Gulfview Rightof Way in conjunction with the proposed project. We would like to request a letter of no objection from your office for the proposed vacation request. Sincerely,r' ? PE, RLA, LEED AP eith E ,Z J President Wells, Wayne From: Alex azan [Alex@keithzayac.com] Sent: Monday, December 21, 2009 3:45 PM To: 'Arboleda, Jorge'; 'Goulish, Andy' Cc: richard@keithzayac.com; sheryl@keithzayac.com; Ijacobs@finfrockdmc.com; Wells, Wayne Subject: FW: DVA2009-00004, 311 S. Gulfview Blvd., Surf Style Parking Garage Andy: Please read below. The City needs the info by tomorrow, Tuesday, Dec 22"d. Can you get the items listed below in that time frame? Please advise asap Thank you, Alex L. Azan, P.E. 813.205.3615 Keith Zayac & Associates, Inc. MAILING ADDRESS: :Post Office Box 1.156 Safety Harbor, FL 34695 Physical Address: _ £14001 63rd Way North Clearwater, FL 33760 From: Wayne.Wells@myClearwater.com [mailto:Wayne.Wells@myClearwater.com] Sent: Monday, December 21, 2009 2:45 PM To: alex@keithzayac.com Cc: Gina.Clayton@myClearwater.com; Leslie. Dougall-Sides@myClearwater.com; Pam.Akin@myClearwater.com; Sherry.Watkins@myClearwater.com; richard@keithzayac.com Subject: DVA2009-00004, 311 S. Gulfview Blvd., Surf Style Parking Garage Alex - The above referenced Development Agreement has been scheduled for review by the CDB on January 5, 2010, and by the City Council on January 14, 2010. 1 need 15 hard copies of the most up-to-date Development Agreement, including all Exhibits (including 8.5"x11" reduced versions of the site plan, building elevations and floor plans). I also need the electronic version of the Development Agreement, including all Exhibits, so I can send it to City Council. I need all this tomorrow afternoon by 3:00 pm. Let me know if this is a problem. Wayne M. Wells, AICP Planner III City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756-5520 r Phone: 727-562-4504 Fax: 727-562-4865 '0 o. PLANNING DEPARTMENT • CITY OF CLEARWATER POST OITICE Box 4748, CLEARWATER, FLORIDA 33758-4748 MUNICIPAL SERVICES BUILDING, 100 SOUTH MYRTLEAVENUE, CLEARWATER, FLORIDA 33756 TELEPHONE (727) 562-4567 FAx (727) 562-4865 December 16, 2009 Alex Azan, P.E. Keith Zayac & Associates, Inc. 1400163 d Way North Clearwater, Florida 33760 RE: DVA2009-00004 311 S. Gulfview Boulevard (including 305, 309 and 315 S. Gulfview Boulevard and 320 Coronado Drive) Dear Mr. Azan: The Community Development Board (CDB) at their meeting on December 15, 2009, continued the above referenced application to their January 5, 2010, Special CDB meeting to consider the review of, and recommendation to the City Council, of a Development Agreement between L.O.M. Inc. (the property owner) and the City of Clearwater as per Beach by Design and Community Development Code Section 4- 606 for the property at 311 S. Gulfview Boulevard (including 305, 309 and 315 S. Gulfview Boulevard and 320 Coronado Drive). This Development Aa eement is also cehed„led for review and deciginn by City Council on Thursday, January 14, 2010. If you have any questions, please do not hesitate to call Wayne M. Wells, AICP, Planner III, at 727-562- 4504. You can access zoning information for parcels within the City through our website: www.myclear\vater.comi'gov/depts-plaiinin?. Sincerely, Michael Del , ICP Planning Director S:IPlanning DepnronentlCD BIFLEX (FLD)Tending cases)Up for the next CDBIDVA2009-00004 - Gulfview S 0311 (T) 2009.xx - 1.5.10 CDB + 1.14.10 CC - WWIGulfview S 0311 DVA CDB Continuance Letter 12.16.09.doc TOUAL EMPLOYMENT AND AFFIRMATIVE AcnON EMPLOYER 0 0 Wells, Wayne From: Goulish, Andy [AGoulish@finfrockdmc.com] Sent: Friday, December 11, 2009 12:28 PM To: Wells, Wayne Subject: RE: DVA2009-00004, 311 S. Gulfview Blvd., Surf Style Parking Garage Attachments: image001.png Thank you. We appreciate your help with this matter. Andrew J. Goulish, PE / Project Manager. Construction 2400 Apopka Boulevard / Apopka, FL 32703 T: 407.293.4000 / C: 407.402.3797 / F: 407.367.2468 a?,,otilish;ii finfro&dmc.coin NF'OC 0 h? Jhv?aw. fm f`rt?ckdrtic.ccim NOTICE: The information contained in this e-mail transmission is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please promptly notify the sender by reply e-mail, and then destroy all copies of the transmission. From: Wayne.Wells@myClearwater.com [mailto:Wayne.Wells@myClearwater.com],. Sent: Friday, December 11, 2009 12:26 PM To: Goulish, Andy Cc: alex@keithzayac.com; alexplisko@verizon.net; gili@surf-style.com; michael.delk@MyClearw'ater.com; Gina.Clayton@myClearwater.com; Robert.Tefft@MyClearwater.com; Leslie. Dougall-Sides@myClearwater.com; Sherry.Watkins@myClearwater.com Subject: DVA2009-00004, 311 S. Gulfview Blvd., Surf Style Parking Garage Andy - We have polled our Community Development Board (CDB) members and we do not have a quorum for a December 22, 2009, Special CDB meeting. We do have a quorum for a January 5, 2010, Special CDB meeting. Therefore, we are scheduling the public hearing for the Development Agreement (DVA2009-00004) for this Special CDB meeting on January 5, 2010. This Development Agreement will remain scheduled for the January 14, 2010, City Council meeting. I will prepare the required notice signs and provide them and the Affidavit of Posting to Alex Azan so they can be posted by the required deadline. I apologize for the oversight, but we are able to schedule a Special CDB meeting to keep it on schedule to City Council. The Flexible Development (FLD2009-09032) application is still scheduled for review by the CDB at their December 15, 2009, meeting. If you have any questions, feel free to contact me. Wayne From: Goulish, Andy [mailto:AGoulish@finfrockdmc.com] Sent: Friday, December 11, 2009 11:05 AM To: Wells, Wayne Cc: alex@keithzayac.com; Alex Plisko; Ovaknin Gili Subject: FLD2009-09032 and DVA2*0004, 311 S. Gulfview Blvd., Surf Style Ong Garage Importance: High Wayne, I left a message on your voicemail, but wanted to confirm with you that the Owner would like to hold the Special CDB meeting on December 22, 2009. Please contact Alex Azan to make the necessary arrangements for notice posting. Please call should you have any questions. Thanks, Andy Andrew J. Goulish, PE / Project Manaf_,er•, Construction 2400 Apopka Boulevard / Apopka, FL 32703 T: 407.293.4000 / C: 407.402.3797 / F: 407.367?468 aaoul ish(?i,finfi•odcdme.cotn FINFROCK i'-[dt?Cti.al.nt?i.?C; u±.c.Kbv*v?uGF htq?:UwNvNv.tinfrockdmc.com NOTICE: The information contained in this e-mail transmission is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please promptly notify the sender by reply e-mail, and then destroy all copies of the transmission. 2 Wells, Wayne From: Wells, Wayne Sent: Thursday, December 10, 2009 6:28 PM To: 'alex@keithzayac.com' Cc: 'richard@keithzayac.com'; Tefft, Robert; Watkins, Sherry; archp@verizon.net Subject: FLD2009-09032 and DVA2009-00004, 311 S. Gulfview Blvd., Surf Style Parking Garage Attached are the Staff Reports for the above referenced Flexible Development (FLD) and Development Agreement (DVA) applications. As I have made you aware, the Community Development Board (CDB) cannot hear the DVA case due to the required public hearing notice sign not being posted on the property (City error). Case DVA2009-00004 will be continued to another meeting date of the CDB. We have discussed the options of meeting dates for both the CDB and City Council and you will advise me based on your discussions with your client. Please review the recommended conditions of approval on Case FLD2009-09032 and let me know in writing no later than 9:00 am on Monday, December 14, 2009, if the conditions of approval are aeceptable;or not.. If they are acceptable. and we have not received any emails or letters of opposition to the FLD case, this application will be placed on the Consent portion of the CDB agenda (note: we have not received any emails or letters of opposition so far - if we do get any [or ones of support], I will forward such to you). If you have any questions, feel free to email or call me. Wayne M. Wells, A/CP Planner III City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756-5520 Phone: 727-562-4504 Fax: 727-562-4865 Gulfview S Gulfview S 1 FLD Staff Reel DVA Staff Rel • e Wells, Wayne From: Wells, Wayne Sent: Saturday, November 21, 2009 5:48 PM To: 'alex@keithzayac.com'. Cc: 'richard@keithzayac.com' Subject: FLD2009-09032 and DVA2009-00004, 311 S. Gulfview Blvd. Alex - Attached are letters scheduling the above referenced applications for the Community Development Board meeting on December 15, 2009. Should you have any questions, feel free to contact me. Wayne M. Wells, A/CP Planner III City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756-5520 Phone: 727-562-4504 Fax: 727-562-4865 I Gulfview S Gulfview S 1 FLD CDB Lettl DVA CDB Lett 0 0 PLANNING DEPARTMENT Alex Azan, P.E. Keith Zayac & Associates, Inc. 14001 63rd Way North Clearwater, Florida 33760 CITY OF CLEARWATER POST OFFICE Box 4748, CLEARWAnit, FLoRwA 33758-4748 MUNICIPAL SERvicEs BUHAING, 100 SouTH MYRTLEAvENuE, CLEARwATm, FLORIDA 33756 TELEPHONE (727) 5624567 FAx (727) 5624865 November 21, 2009 Re: Community Development Board Meeting (Case No. DVA2009-00004) Dear Mr. Azan: You have filed Case No. DVA2009-00004 for property located generally at 311 S. Gulfview Boulevard (including 305, 309 and 315 S. Gulfview Boulevard and 320 Coronado Drive) for the review of, and recommendation to the City Council, of a Development Agreement between L.O.M. Inc. (the property owner) and the City of Clearwater. This case has been scheduled for review by the Community Development Board on December 15, 2009. The meeting will take place at 1:00 p.m. in the City Council Chambers, 3rd floor of City Hall at 112 S. Osceola Avenue, Clearwater. If you have any questions, please do not hesitate to call me at 727-562- 4504. Sincerely,, / h 1 N qqp Wayne M. Wells, AICP Planner III S: (Planning DepartnientIC D BIFLEX (FLD)Tending casesWp for the nest CDBIDVA2009-00004 - Gidfview S 0311 (T) 2009-rx - 12.15.09 CDB - WWIGulfview S 0311 DVA CDB Letter 11.21.09.doc "R-... I uD.nv..cn,T - A-...,,,.z A-, P....... ." • e Wells, Wayne From: Wells, Wayne Sent: Monday, November 02, 2009 6:32 PM To: 'alex@keithzayac.com' Cc: 'arch p@verizon.net'; Delk, Michael; Irwin, Rod; Akin, Pam Subject: FLD2009-09032 and DVA2009-00004, 311 S. Gulfview Blvd. Alex - Attached are the Draft DRC comments for both the FLD and DVA above referenced applications, to be reviewed by the DRC in our offices at 1 pm on Thursday, November 5, 2009. Should you have any questions, feel free to contact me. Wayne M. Wells, A/CP Planner III City of Clearwater 100 South Myrtle Avenue Clearwater,,FL 33756-5520 Phone: 727-562-4504 Fax: 727-562-4865 ldat?l Draft 11.5.09 Draft 11.5.09 D DRC Action /A DRC Action 0 0 Wells, Wayne From: Wells, Wayne Sent: Thursday, October 01, 2009 8:47 AM To: 'rchard@keithzayac.com ; 'alex@keithzayac.com' Cc: archp@verizon.net; renee@northsideengineeringservices.com Subject: DVA2009-00004, 311 S. Gulfview Blvd. Richard - Attached are Draft DRC comments for the above referenced application, to be reviewed by the DRC in our offices at 1 pm today. Wayne M. Wells, A/CP Planner III City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756-5520 Phone: 727-562-4504 Fax: 727-562-4865 .Draft 10.1.09 tC Action Agenc 1 0- Wells, Wayne From: Wells, Wayne Sent: Friday, September 11, 2009 3:05 PM To: keith@keithzayac.com Subject: FLD2009-09032 & DVA2009-00004, 311 S. Gulfview Blvd. Keith - Attached is a Letter of Completeness for the above referenced application FLD application. There is no electronic letter for the DVA. Both cases are scheduled for the October 1, 2009, DRC meeting. The original letters are being mailed. Wayne M. Wells, AICP Planner III City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756-5520 Phone: 727-562-4504 Fax: 727-562-4865 Letter of ipleteness 9.11. 'Clearwater September 11, 2009 Keith Zayac 701 Enterprise Road East Suite 404 Safety Harbor, F134695 'ITY OF CLE._ WATER PLANNING DEPARTMENT MUNICIPAL SERVICES BUILDING 100 SOUTH MYRTLE AVENUE, CLEARWATER, FLORIDA 33756 TELEPHONE: (727) 562-4567 FAX: (727) 562-4576 WWW.MYCLEARWATER.COM VIA FAX: (727) 793-9855 RE: DVA2009-00004 -- 311 S GULFVIEW BLVD -- Letter of Completeness Dear Keith Zayac : The Planning Staff has entered your application into the Department's filing system and assigned the case number: DVA2009-00004. After a preliminary review of the submitted documents, staff has determined that the application is complete. The Development Review Committee (DRC) will review the application for sufficiency on October 01, 2009, in the Planning Department conference room - Room 216 - on the second floor of the Municipal Services Building. The building is located at 100 South Myrtle Avenue in downtown Clearwater. You will be contacted by the Planning Department's Administrative Analyst within one week prior to the meeting date for the approximate time that your case will be reviewed. You or your representative (as applicable) must be present to answer any questions that the DRC may have regarding your application. Additional comments may be generated by the DRC at the time of the meeting. If you have any questions, please do not hesitate to contact me at 727-562-4504 or Wayne.Wells@myclearwater.com. Sincerely yours, Zvn?eells. AICP Planner III Letter of Completeness - DVA2009-00004 - 311 S GULF VIEW BLVD • Keith Zavac & Associates, Inc. Civil Engineering, Landscape Architecture, Planning September 9, 2009 Mr. Wayne Wells City of Clearwater Planning Department 100 S. Myrtle Avenue Clearwater, FL 33756 RE: DVA2009-00004, 311 GULFVIEW BLVD. Dear Mr. Wells: e 701 S. Enterprise Road E., Ste 404 Safety Harbor, FL 34695 (727) 793-9888 Phone (727) 793-9855 Fax keithp_keithMac.com EB 9351 LC26000212 The following is a summary of information inserted into the previously submitted application package to address completeness comments received: 1. Enlarge the typed in information on Page 1 of the application (need a magnifier to read the present material). Revise and replace Page 1 of the application. The information on page 1 of the application has been enlarged. 2. Provide the complete names and addresses of all owners of property abutting or lying within 200 feet of the subject property as currently listed in the County records as of one week prior to the filing of the application. A copy of the names and addresses has been added. 3. Provide an electronic version of the proposed Development Agreement. An electronic copy of the velopment agreement has been added to the package. Keith E. y6c, PE, RLA, LEED AP President SEP 1 0 2309 t" • e Wells, Wayne From: Wells, Wayne Sent: Tuesday, September 08, 2009 1:20 PM To: 'Keith Zayac, P.E., R.L.A., LEED AP' Subject: 311 South Gulfview Surf Style (FLD2009-09032) Attachments: image001.gif This is a list of property owners within 200 feet (not 50 feet). It will not delete the comment, but the comment would be shown as being "met". One copy of this list should be submitted with the other incomplete items. From: Keith Zayac, P.E., R.L.A., LEED AP [mailto:keith@keithzayac.com] Sent: Tuesday, September 08, 2009 12:53 PM To: Wells, Wayne Subject: FW: 311 South Gulfview Surf Style (FLD2009-09032) Wayne, Will this delete the cornnient regarding the SUITotanding property owners. Keith Zayac, P.E., R.L.A., LEED AP Keith Zayac & Associates, Inc. 701 Enterprise Road E., Suite 404 Safety Harbor, FI 34695 727-793-9888 Ext. 302 From: Richard Marcel, LEED AP NC [mailto:Richard@Keithzayac.com] Sent: Tuesday, September 08, 2009 11:45 AM To: 'Keith Zayac, P.E., R.L.A., LEED AP' Subject: FW: 311 South Gulfview Surf Style (FLD2009-09032) Fyi attached is a copy of the adjacent property owners names and address for Surf Style. Sherry said we only need for 50' not 200. She will place a copy in the file, but we should probably include with our resubmittal. I saved a copy under documents. Thank you, Richard Marcel, LEED AP NC Keith Zayac & Associates, Inc. 701 Enterprise Road, Suite 404 Safety Harbor, 17134695 (P) 727-793-9888 Ext. 305 (F) 727-793-9855 (C) 727-488-1002 DISCLAIMER OF LIABILITY Keith Zayac & Associates, Inc. (KZA) makes the electronically stored data available for information purposes only. No warranty, either expressed or implied, is made regarding the accuracy or reliability of the aforementioned data. KZA reserves the right to revise, update, and improve its electronically stored data without notice and assumes no responsibility for any images which may arise as a result of the use of its data. The user agrees to verify the data to ascertain its accuracy for the intended use. KZA makes every effort to ensure the data is virus free; however, KZA assumes no responsibility for damages caused by the installation/use of the enclosed data. Use of the enclosed data indicates the user accepts the conditions contained herein. Please note, in some cases final approval may not have been ?_1W issued by all the permitting agencies;Oce, modifications, which are not depictesthe enclosed electronically stored data, may be required. Unless other arrangements have been agreed to, use of the electronically stored data for any activities shall proceed solely at the risk and responsibility of recipient/user of said electronically stored data. Additionally, any use of the enclosed electronically stored data shall relieve KZA and/or any of its employees from liability/responsibility regarding any modifications to said electronically stored data which may be required due to reviewing agencies' comments and/or final design revisions/modifications. From: Sherry.Watkins@myClearwater.com [mailto:Sherry.Watkins@myClearwater.com] Sent: Tuesday, September 08, 2009 11:18 AM To: Richard@Keithzayac.com Subject: RE: 311 South Gulfview Surf Style (FLD2009-09032) Done here you go. Thanks Sherry Watkins Administrative Analyst Planning Department 727-562-4582 From: Richard Marcel, LEED AP NC [mailto:Richard@Keithzayac.com] Sent: Tuesday, September 08, 2009 11:06 AM To: Watkins, Sherry Subject: 311 South Gulfview Surf Style (FLD2009-09032) Sherry, Asa reminder when you get a chance can you please send over a list of the adjacent property owners with addresses? After speaking with Keith we would like a copy for our records. Once, again thanks for all your help. Thank you, Richard Marcel, LEED AP NC Keith Zayac & Associates, Inc. 701 Enterprise Road, Suite 404 Safety Harbor, Fl 34695 (P) 727-793-9888 Ext. 305 (F) 727-793-9855 (C) 727-488-1002 DISCLAIMER OF LIABILITY Keith Zayac & Associates, Inc. (KZA) makes the electronically stored data available for information purposes only. No warranty, either expressed or implied, is made regarding the accuracy or reliability of the aforementioned data. KZA reserves the right to revise, update, and improve its electronically stored data without notice and assumes no responsibility for any images which may arise as a result of the use of its data. The user agrees to verify the data to ascertain its accuracy for the intended use. KZA makes every effort to ensure the data is virus free; however, KZA assumes no responsibility for damages caused by the installation/use of the enclosed data. Use of the enclosed data indicates the user accepts the conditions contained herein. Please note, in some cases final approval may not have been issued by all the permitting agencies; hence, modifications, which are not depicted on the enclosed electronically stored data, may be required. Unless other arrangements have been agreed to, use of the electronically stored data for any activities shall proceed solely at the risk and responsibility of recipient/user of said electronically stored data. Additionally, any use of the enclosed electronically stored data shall relieve KZA and/or any of its employees from liability/responsibility • 0 Wells, Wayne From: Wells, Wayne Sent: Sunday, September 06, 2009 2:47 PM To: keith@keithzayac.com Subject: DVA2009-00004, 311 S. Gulfview Blvd. Keith - Attached is a Letter of incompleteness for the above referenced application. The original letter is being mailed. Wayne M. Wells, AICP Planner III City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756-5520 Phone: 727-562-4504 Fax: 727-562-4865 Letter of )mpleteness 9.6 • CITY OF CLEARWATER ;0-.;- POST OFFICE BOX 4748, CLEARWATER, FLoRmA 33758-4748 MUNICIPAL SERviCFS BUILDING, 100 SOUTH MYRTLEAVENUE, CLEARWATER, FLORIDA 33756 TELEPHONE (727) 562-4567 FAx (727) 562-4865 PLANNING DEPARTMENT September 6, 2009 Keith Zayac Keith Zayac & Associates, Inc. 701 Enterprise Road, Suite 404 Safety Harbor, FL 34695 Re: DVA2009-00004, 311 S. Gulfview Blvd. Letter of Incompleteness Dear Mr. Zayac: The Planning Staff has entered your application into the Department's filing system and assigned the case number: DVA2009-00004. After a preliminary review of the submitted documents, Staff has determined the application is incomplete, with the following comments: 1. Enlarge the typed in information on Page 1 of the application (need a magnifier to read the present material). Revise and replace Page 1 of the application. 2. Provide the complete names and addresses of ali owners of property abutting or lying within 200 feet of the subject property as currently listed in the County records as of one week prior io the filing of the application. 3. Provide an electronic version of the proposed Development Agreement. Section 4-202 of the Community Development Code states that if an application is deemed incomplete, the deficiencies of the application shall be specified by Staff. No further development review action shall be taken until the deficiencies are corrected and the application is deemed complete. Please resubmit by September 10, 2009, at NOON. if you have any questions, please do not hesitate to contact me at 727-562-4504 or at wayne.wells@myclearewater.com. Sincerely, W 64 Wayn M. Wells Planner III AT% 11F01IA1. FMO1nVMFNT ANTI AFFIRMATIvF Ar nN FMVInVFR" vo Wells, Wayne From: Akin, Pam Sent: Thursday, April 22, 2010 11:26 AM To: Wells, Wayne Cc: Bruch, Tracey; Delk, Michael; Garriott, Kevin; Clayton, Gina; Quillen, Michael; Rice, Scott Subject: RE: Parking Garage at 311 S. Gulfview Blvd. (LOM) Wayne, section 4.01 applies only the City in its proprietary capacity. I agree with your analysis. Pam Akin, City Attorney City of Clearwater (727)562-4010 pam.akin@myclearwater.com From: Wells, Wayne Sent: Thursday, April 22, 2010 10:00 AM To: Akin, Pam Cc: Bruch, Tracey; Delk, Michael; Garriott, Kevin; Clayton, Gina; Quillen, Michael; Rice, Scott Subject: Parking Garage at 311 S. Gulfview Blvd. (LOM) Pam - I am trying to ascertain the time frames for certain approvals as set forth in the Development Agreement for LOM for the parking garage at 311 S. Gulfview Blvd. Section 3.02(1) of the Development Agreement states (boiding added for emphasis and direction): (1) Applications for Development Approval. The Developer shall prepare and submit to the appropriate Governmental Authority, including the appropriate divisions and boards of the City, applications for approval of all Plans and Specifications necessary for the Project, and shall bear all costs of preparing such applications, applying for and obtaining such permits, including payment of any and all applicable application, inspection, regulatory and impact fees or charges (if any). The City shall, to the extent possible, review and process the foregoing applications and permits on an expedited basis. A list of all permits and approvals required to implement the provisions of this Agreement is attached as Exhibit H. The failure of this Agreement to address a particular permit, condition, term or restriction shall not relieve the Developer of the necessity of complying with the law governing said permitting requirements, conditions, terms or restrictions. Section 4.01(3), however, includes a different time frame for review of plans, which states (bolding added for emphasis and direction): (3) Approval of Plans and Specifications for the Commercial Parking Garage Which is To Be Available to the Public. The City has previously approved the Conceptual Plans in its regulatory capacity. Exhibit J attached to this Agreement sets forth the City Parking Garage Standards for parking garage facilities owned by the City. In order to ensure that the design of the Parking Unit will meet the City's standards 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's review of the Plans and Specifications hereunder in its proprietary (i.e., non-regulatory) capacity shall be limited to compliance by the Parking Unit with the City Parking Garage Standards. The City shall notify the Developer in writing within thirty 30 days following 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 have not materially changed from the Conceptual Plans in a manner which causes the Parking Unit to no longer conform to the City Parking Garage Standards, the City shall approve the Plans and Specifications as submitted. The City's failure to respond to the Developer within said 30 day period shall be deemed approval. The 75% Design Review plans was submitted on March 24, 2010, to Tracey Bruch and Tim Haahs and Associates. Tim Haahs and Associates submitted written review comments on April 5, 2010, to Frinfrock within the 30 days from submittal. Responses by Frinfrock to the comments back to the City and Tim Haahs and Associates has not yet been received. A building permit application was received by the Planning and Development Department on April 16th for the property at 311 S. Gulfview Blvd. (BCP2010-04333) and is out for review by the various departments. I am asking for clarification that review of Building Permit #BCP2010-04333 is to be done on an expedited basis, to the extent possible, in accordance with Section 3.02(1) of the Development Agreement and is not subject to the time frame under Section 4.01(3).[Akin, Pam] That is correct. Only the 75% Design Review plans that have been reviewed by Tim Haahs and Associates must comply with the Section 4.01(3) (which they have). Is this correct?[Akin, Pam] That is correct. Obviously, any concerns found by Tim Haahs and Associates with the 75% Design Review plans that forces changes in the plans submitted under Building Permit #BCP2010-04333 must be reflected in revised building permit plans. Wayne M. Wells, AICP Planner III City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756-5520 Phone: 727-562-4504 Fax: 727-562-4865 1 t E Wells, Wayne From: Wells, Wayne Sent: Thursday, November 12, 2009 12:22 PM To: Dougall-Sides, Leslie; Clayton, Gina Subject: A04-01420: FW: L.O.M. DVA The Surf Style/Britts (L.O.M.) project was on the November 5, 2009, DRC meeting. It was found sufficient to move forward to the CDB. They will be resubmitting the packages according to the schedule tomorrow, November 13, 2009. From: Dougall-Sides, Leslie Sent: Thursday, November 12, 2009 8:36 AM To: Clayton, Gina Cc: Wells, Wayne Subject: RE: A04-01420: FW: L.O.M. DVA Sorry, I see it is not on for this month, will assume it has further work prior to being agendaed. I'll look it up in Tidemark. From: Clayton, Gina Sent: Thursday, November 12, 2009 7:53 AM To: Dougall-Sides, Leslie Cc: Wells, Wayne Subject: RE: A04-01420: FW: Density/Intensity Averaging Don't know - Wayne have you received anything recently? From: Dougall-Sides, Leslie Sent: Wednesday, November 11, 2009 10:05 AM To: Clayton, Gina Subject: RE: A04-01420: FW: Density/Intensity Averaging Thanks P.S. We did not discuss the L.O.M./parking garage DVA yesterday in our conference call. Pam has been working on that. Have you received a version of that DVA to include in the CDB agenda packet? From: Clayton, Gina Sent: Wed 11/11/2009 10:03 AM To: Dougall-Sides, Leslie; Delk, Michael Subject: RE: A04-01420: FW: Density/Intensity Averaging I think this addresses the issue we were concerned about. -----Original Message----- From: Dougall-Sides, Leslie Sent: Tue 11/10/2009 3:38 PM To: Delk, Michael; Clayton, Gina Subject: A04-01420: FW: Density/Intensity Averaging Does Planning have any comments/revisions? Let's discuss if appropriate. From: Akin, Pam Sent: Tuesday, November 10, 2009 3:28 PM To: Dougall-Sides, Leslie Subject: FW: Density/Intensity Averaging From: Shoemaker, Carolyn [mailto:cshoemaker@co.pinellas.fl.us] Sent: Tuesday, November 10, 2009 2:31 PM To: Akin, Pam Cc: Clayton, Gina; Doran, John Subject: Density/Intensity Averaging Sent on behalf of Dave Healey: Pam, I've made a stab at revising the "existing development" clause we discussed yesterday in the event it is relevant to the Council's action on the 18th. Please review and suggest any changes you think appropriate and I will include in the Council's back-up materials should we need it. Thanks for your time and assistance yesterday. Dave Carolyn Shoemaker Administrative Secretary Pinellas Planning Council 600 Cleveland Street, Suite 850 Clearwater, FL 33755-4160 ph: 727.464.8250 fax: 727.464.8212 www.PinellasPlanningCouncil.org <http://www.pinellasplanningcouncil.org> Clearwater approves new gara* beach parking - St. Petersburg Time Page 1 of 5 inij r.., C-a ?AJII Ti(` re, Today's paper I eEdition I Subscribe The Truth-O-Meter Home I `. News I '<< Pol:itir_s Opinion I Sports I Entertainment I '-r' Money I `-s` Go Momma I Boos ( Video I Weather I Tr powered by Search 0 Site Web ? Archives - back to 198' Google Newspaper Archive -back to 1901 41-1 ` OLYMPI Men's hockey: Rafalski's two goals leads U.S. in upset a?, t.tctcr burl Clearwater approves new garage for beach parking M Q', By Mike Brassfield, Times Staff Writer In Print: Saturday, February 20, 2010 Most emailed 67 Performance centers such as Bradenton's IMG Academies get prospects ready for NFL combine 51 Burdens within John Maccarelli's life were difficult to bear 51 Clearwater boy shot by brother transferred to All Children's 151 Sansom resigns House seat on eve of ethics trial Fal Coast Guard tests drones from Florida to find missing boaters and catch drug smugglers Local Government 51 Stances define Clearwater City Council candidates 51 Dunedin looks at adding golf carts to roadways 151 Clearwater approves new garage for beach parking El Largo to borrow $10 million to build community center El Largo commission approves mural design for new community center Surf Style Retail Management will build a public parking garage with retail on Lhe ground floor along BeachWalk at Clea :eater Beach. E -?? .y (Photo CLEARWATER - For more than a decade, the city has wanted to put a parking garage on south Clearwater Beach. The job became more urgent two years ago after the half-mile-long BeachWalk promenade wiped out hundreds of waterfront parking spaces along S Gulfview Boulevard. Story Toots !. ( Email Article Contact the ed { Print this story Commeni or. tl 711 Email Newsletters E3 Purchase repri Social Bookmarking ___ .._.µ..?,..._. ..._....,..__ After months of delay, the City Council struck a deal Thursday night with a developer who will build a 300-space public garage along BeachWalk. Council members voted for it ACVERTi S EMENT http://www.tampabay.com/news/localgovermnent/clearwater-approves-neW-garage-for-be... 22/2010 Clearwater approves new gara r beach parking - St. Petersburg Tim unanimously even after hearing some last- minute opposition to the project. "We're doing this because people have been demanding additional parking at Clearwater Beach for as long as I've been here, since 1983," said council member John Doran. "It's been demanded, requested, it's been begged for, and it's been promised in one form or another for a long time." The garage will replace Britt's Laguna Grill and the Surf Style retail store in the 300 block of S Gulfview Boulevard, just south of the Hyatt Regency Resort that opened earlier this month. The new Hyatt also has a 750-space garage, with 400 spaces open to the public. Surf Style Retail Management, the company that owns the site, plans to put a new Britt's restaurant and Surf Style store on the structure's ground floor with four levels of parking above that. Vehicles will enter and exit the garage from Coronado Drive. The company will pay to build the garage itself, with no city tax dollars. It envisions the 300 parking spaces feeding customers into the ground-floor businesses. Surf Style also gets the right to expand its retail and restaurant space at the site from 13,000 to 38,000 square feet. So what will it cost to park there? That has yet to be determined. The city is requiring that parking rates be "comparable" with other beachfront locations. Page 2 of 5 ?'J s dW a salad. 9' t I ?`. R . I .. ?1 Featured 1 ga heads back emifinals Hulk Hogan settles lawsuit over son's crash that injured John Graziano Probably the most controversial part of the deal - or at least the part that has sparked the most dis fact that Clearwater is setting aside $9.3 million in city reserves to buy the garage if it goes into fore years. That has prompted questions from citizens, including City Council candidate Mike Riordon, who caller independent audit of the deal. "This is the public's money," he said Thursday night. "I think this is some kind of a sweetheart deal,' because the building the garage is expected to cost about $30,000 per space, and other places don't much. Council members responded that this garage will cost more than most because of the high price of b plus the fact that the garage is required to have an more aesthetically pleasing design than the aver structure. Mayor Frank Hibbard said it's an opportunity to have the private sector provide beach parking instea city pay for it. "If all goes well ... we will not outlay any money," Hibbard said. "To me, that is a pretty good busine! the reason I'm going to support this." Council members also think this site is the best option for pedestrians, who won't have to walk acros Coronado Drive to get from their parked cars to the sand. The agreement requires Surf Side to begin construction by the end of September. Mike Brassfield can be reached at brassfield@sptimes.com or (727) 445-4160. http://www.tampabay. com/newsllocalgovermnentlclearwater-approves-new-garage-for-be... 2/22/2010 Marwater approves new gara*r beach parking - St. Petersburg Tim Is Page 3 of 5 [Last modified: Feb 19, 2010 07:42 PM] Thumbs up !I It's about time we get to find a parking spot in Clearwater beach for of bussinesses and tax revenues.It's about time we get a chance to enjoy Beach walk. The project seems very friendly and safe for beach visitors , and will probably return pe beach. I think we are much better off with the private sector funding for it then goii expendeture ourselves. Good Job! Feb 21st, 2010 9:14 PM 0 0 Hondo wrote: Parking lot is most needed on Mandalay, NORTH of the rotary. There is one private lot at that is the most unfriendly and unused lot as that building owner has people's cars towed 1 discourages people from parking and even frequenting the businesses in that building. City funneling the $ 9.3 into a smaller amount, purchase the parking lot in the rear of this pink bi upper level and run the lot as a money maker for the City and a increase in spaces that % people in parking there and frequenting the business community there. Feb 20th, 201.0 6:48 PM 0 0 Honda wrote: A 300 car parking garage, next to an existing 750 car parking garage. Now that's real hair i doesn't the City see how well the new 750 car lot is utilized. Bet it will never be filled, so taxpayer dollars on such insanity. i Feb 20th, 2010 6:42 PM 0 0 ....... t Hondo wrote: A $ 9.3 million reserve of TAXPAYER MONEY are you freaking kidding me. This is noth GOVERNMENT BAILOUT should this fail. More outrageous spending to taxpyer money. Vot out. Each one, every year till the City can recover with sensible conservative people whi i # taxpayer dollars. eb 20th, 2010 6:39 PM 0 0 Bailout wrote: Follow the money. f:eb 20th, 2010 5:24 PM 0 0 http://www.tampabay.comlnewsllocalgovenunentlclearwater-approves-new-garage-for-be... 2/22/2010 11 1 Clearwater approves new gar*r beach parking - St. Petersburg Tin* Page 4 of 5 johndoran wrote: i The set aside is NOT from tax revenues; it is ALL from the parking fund reserve, accumula revenues collected over the many years peop le have been insisting that there should be mon Feb 20th, 2020 22:33 PM Thinkaboutit wrote: 0 0 I want more beach access so will the city mow down those eye soar condos that reach sky view of the water? Of course there will need to be parking attendents and some sort of Clearwater is so backwards in it's thinking. Rush to do one thing because some other city hi try and do something after the project is done to make it work. Feb 20th, 2010 8:24 AM 0 0 wiitie_from_penniless_park wrote: correction: 1) having tax payer monies 'set aside' to potentially pay for a failed business Feb 20th, 2010 5:42 AM wiilie_from_penniless_park wrote: 0 0 there's something wrong about: 1) having tax payer monies build a parking garage that won't use; 2) parking in a garage in order to go to the beach; and 3) paying for parking to another waste of tax dollars by a tax-and-spend government Feb 20th, 2020 5:40 AM 0 0 Eric CLW wrote: Thanks Mayor and City Council; great deal for Clearwater Beach and its businesses. FloridaBadBoy: why don't we just shut down every business in Clearwater (except for pharm, stores) and let you and every other loser take everything you want from them, for free? Soul Mike Riordan: You will lose in the election; while we do need fresh ideas in City Council, continue to pay for more "independent" auditors, consultations, surveys, investigations, an and studies. Sorry if you haven't been paying attention, but the City has wasted enough m. of crap (regarding the beach parking debate) over the years. Feb 20th, 2010 5:20 AM 0 0 lobo wrote: The city of Clearwater robbed its citizens of their beach parking and squandered tens of r when they built the silly beach walk. Now they will allow a private company to gouge be parking garage? And pick the taxpayers' pockets with a $9.3 million city reserve fund? municipal corporation of Clearwater is a joke. Secession for Clearwater Beach? Feb 20th, 2010 6:19 AM 1 0 http://www.tampabay. com/newsllocalgovemmentlclearwater-approves-new-garage-for-be... 2/22/2010 Clearwater approves new gara?r beach parking - St. Petersburg MIS Page 5 of 5 FLORIDABADBOY wrote: Another waste of tax dollars Land is less now so thats a lie 0 it's going to look pretty even more so that other garages. What about putting the add ones on a back burner until we can get food & RX to people who need them. Feb 1.9th, 201.0 7:31 PM D o 9h J)ct,T , , u 1110 © 2010 • All Rights Reserved - St. Petersbi rt"s YO n {7 i 490 First Avenue South • St. Petersburg, F [7 f. ?+ ofifi"? act-COM Contact Us j loin Us I Advertise with Us I ' Privacy Policy I Standard of Accuracy I Ter http://www.tampabay.comlnewsllocalgovermnentlclearwater-approves-new-garage-for-be... 2/22/2010 9 0 Wells, Wayne From: Hollander, Gwen Sent: Friday, January 22, 2010 4:13 PM To: Dougall-Sides, Leslie Cc: Akin, Pam; Wells, Wayne Subject: RE: DVA2009-00004, Resolution No. 09-45--L.O.M./Surfstyle It ran January 2, 2010. The resolution was renumbered to 10-01. I'll get a copy of the ad from ORLS this afternoon for you. From: Dougall-Sides, Leslie Sent: Friday, January 22, 2010 3:58 PM To: Hollander, Gwen Cc: Akin, Pam; Wells, Wayne Subject: RE: DVA2009-00004, Resolution No. 09-45--L.O.M./Surfstyle Was it advertised originally and when? From: Hollander, Gwen Sent: Friday, January 22, 2010 3:57 PM To: Dougall-Sides, Leslie Cc: Akin, Pam; Wells, Wayne Subject: RE: DVA2009-00004, Resolution No. 09-45--L.O.M./Surfstyle Since the item was continued to a "date certain" within 45 days, nothing needs to be done for advertising. From: Dougall-Sides, Leslie Sent: Friday, January 22, 2010 3:52 PM To: Hollander, Gwen Cc: Akin, Pam; Wells, Wayne Subject: DVA2009-00004, Resolution No. 09-45--L.O.M./Surfstyle Please check on the advertising for this item which is to be heard 2/4. The item was continued from 1/14. • • Wells, Wayne From: Dewitt, Gina Sent: Friday, January 22, 2010 10:51 AM To: Vaughan, Karen Cc: Wells, Wayne Subject: Resolution 10-01 MR 10-01.docx Karen, Here's a new resolution that had to be changed to reflect requirements in the Development Agreement. Please replace the current resolution with this one. This agreement is another "Freddie". • 0 RESOLUTION NO. 10-01 A RESOLUTION OF THE CITY OF CLEARWATER, FLORIDA APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF CLEARWATER AND L.O.M., INC; PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Clearwater is desirous of entering into a development agreement with L.O.M., Inc.; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CLEARWATER, FLORIDA: Section1. The Development Agreement between the City of Clearwater and L.O.M., Inc., a copy of which is attached as Exhibit "A," is hereby approved. Section 2. For the term of the Put Agreement, attached to the Development Agreement as Exhibit L, the City shall maintain a $9,300,000 balance in Project 315- 9xxx (Surf Style Condominium-Parking Unit) and shall not spend any portion of such funds for any purpose other than the purchase of the Parking Unit for so long as the City's obligations remain in effect. The Office of Management and Budget is hereby directed to insure the reserve is maintained on all appropriate operating plans, budgets, and accounts of the City. Section 3. This resolution shall take effect immediately upon adoption. PASSED AND ADOPTED this Approved as to form: Pamela K. Akin City Attorney day of , 2010. Frank V. Hibbard Mayor Attest: Cynthia E. Goudeau City Clerk Resolution No. 10-01 Wells, Wayne From: Akin, Pam Sent: Monday, January 04, 2010 11:19 AM To: Wells, Wayne Subject: RE: CDB Meeting re DVA2009-00004, 311 S. Gulfview Blvd., Surf Style/Britts Yes I will From: Wells, Wayne Sent: Monday, January 04, 2010 10:22 AM To: Akin, Pam Cc: Dougall-Sides, Leslie; Delk, Michael; Clayton, Gina; Tefft, Robert Subject: CDB Meeting re DVA2009-00004, 311 S. Gulfview Blvd., Surf Style/Britts Pam - Tomorrow the CDB will have a Special meeting at 1:00 pm to discuss and act upon the above referenced DVA application. At least Norma Carlough has been asking me questions regarding the DVA, specifically the Put Agreement. Are you planning to attend the CDB meeting to answer any pertinent questions? Wayne M. Wells, A/CP Planner III City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756-5520 Phone: 727-562-4504 Fax: 727-5624865 Wells, Wayne From: Castelli, Joelle Wiley Sent: Wednesday, December 30, 2009 12:35 PM To: Wells, Wayne; Delk, Michael; Bruch, Tracey Subject: RE: Media Update for 12/29/09 Paul has called and clarified with Anne Garris and told her he would get back to her with more info. Thanks for making sure it was accurate. Anne would spin it that we were drying to deceive her. I appreciate it. From: Wells, Wayne Sent: Wednesday, December 30, 2009 10:56 AM To: Delk, Michael; Bruch, Tracey; Castelli, Joelle Wiley Subject: Media Update for 12/29/09 Michael/Tracey/Joelle - From the FLD Staff Report, the current use of the property includes Retail Sales and Services of 7,128 square feet of floor area and a Restaurant of 6,058 square feet of floor area (as well as one dwelling unit). The proposed use of the property includes Retail Sales and Services of 34,183 square feet of floor area, a Restaurant of 6,887 square feet of floor area and a Parking Garage of 349 parking spaces (including 48 accessory parking spaces for the Retail Sales and Services and Restaurant uses and 301 public parking spaces). The total floor area of 41,070 square feet is almost an acre of commercial floor area (0.94 Floor Area Ratio). Paul Bertels did not give correct numbers between the existing versus proposed conditions. Wayne From: Delk, Michael Sent: Wednesday, December 30, 2009 10:43 AM To: Bruch, Tracey; Castelli, Joelle Wiley Cc: Wells, Wayne Subject: RE: Media Update for 12/29/09 Joelle - Tracy is correct. mid From: Bruch, Tracey Sent: Wednesday, December 30, 2009 10:41 AM To: Castelli, Joelle Wiley Cc: Clayton, Gina; Quillen, Michael; Delk, Michael; Bertels, Paul Subject: RE: Media Update for 12/29/09 Joelle: It is my understanding that the Britt's development plan is for approx. 40,000 sf of restaurant/retail and the current amount is approx. 6,000sf. Not sure if this will be an issue if Anne is running a story on this. Tracey From: Castelli, Joelle Wiley Sent: Tue 12/29/2009 4:49 PM To: Bruch, Tracey; Carnley, Rick; Clayton, Gina; Cretekos, George; Doran, John; Dougall-Sides, Leslie; Fire Administration All; Garriott, Kevin; Gibson, Paul; Griggs, Jean; Hibbard, Frank; Lee-Lun, Chrystal; Leonard, Felicia; Orr, Courtney; Petersen, Carlen; Police Command Sta# ublic Communications; Rowland, Terri; Arf, Eleanor; Senior Executive Team; Staff Assistants (Sen. Mgmt.); Stewart, Gregory; Tearney, Laura Subject: Media Update for 12/29/09 Anne Garris was in to see Paul Bertels in Traffic Engineering yesterday and asked about the concurrency being met on the new Britt's parking garage. Paul explained the following to Anne: Parking garages by themselves do not generate traffic and there is no trip generation rate in the ITE manual for parking garages. She disagreed with that feeling that people do come to the beach just because there is a parking garage. Paul told her that when the weather is nice people come to the beach whether there is a place to park or not. She asked the level of service of Coronado Drive. Paul told her during spring break or any good weather day during the season it is an F. During off peak periods like right now it is a B. She asked about the commercial development generating trips and Paul told her the new commercial part of the development is the same size as they have right now. So the trip rate does not go up with the new development. It is the same as current. • Early this morning Beth Watts sent out information about a fire deemed suspicious. Later this morning, Beth sent an updated press release based on investigative findings that an 11-year-old girl and her 15-year old boyfriend attempted to kill the girl's mother by setting her bed on fire while she was asleep. Smoke alarms woke her and she got out of the house with serious, but non-life threatening burns. Beth did interviews with all local TV stations, newspapers, radio stations and the Associated Press. • Alexandra Caldwell w/Clearwater Beacon had several fire related questions spurred from recent fires in the county. Beth spoke about various fire hazards and safety tips for citizens. • Brian w/Bay News 9 inquired if CPD had an iphone application for calls for service (no). This is something St. Pete PD just implemented and they were checking other agencies to see what was available. Beth told him citizens can check calls for service near their home or any other area. in Clearwater by going to the PD website. • Yesterday evening Beth did a radio interview with 970-WFLA on yesterday's duplex fire. Joelle Castelli Public Communications Director Office (727) 562-4881 Cell (727) 224-7034 Fax (727) 562-4696 0 0 Wells, Wayne From: Wells, Wayne Sent: Tuesday, December 29, 2009 2:40 PM To: Akin, Pam Cc: Dougall-Sides, Leslie; Dewitt, Gina; Goudeau, Cyndie; Delk, Michael; Clayton, Gina; Tefft, Robert Subject: DVA2009-00004, 311 S. Gulfview Blvd. - Surf Style/Britts Pam - Planning has entered the above referenced Development Agreement into MuniAgenda with many attachments. The most current electronic version of the Development Agreement has been attached, however, there are a number of Exhibits to the Development Agreement that has not been provided to me and I have NOT attached: portion of Exhibit D (Exhibits 1 and 2), portion of Exhibit E (Exhibit A), portion of Exhibit F (Exhibits A and C), Exhibit G, Exhibit J, Exhibit K, portion of Exhibit L (Exhibits A, A-1 and B) and Exhibit M. I understand you have been working with the applicant's attorney and there may be additional changes to the Development Agreement. Perhaps these missing Exhibits are being provided to you and or by you (as indicated to me from the applicant's consultant). The MuniAgenda item has been forwarded to you for your approval. Additionally, today I have received colored elevations and building perspective drawings that should be also attached into MuniAgenda. If possible, could you (or Cyndie Goudeau) attach these drawings (see attached to this email) into MuniAgenda, since the agenda item has already been approved by the Planning Director? Thanks. Wayne M. Wells, A/CP Planner III City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756-5520 Phone: 727-562-4504 Fax: 727-562-4865 ffffliiit?ll U.J T? Revised DVA 'Revised DVA Revised DVA Revised DVA hibit B 4A Conchibit B 4B Conchibit B 4C Conchibit B 4D Cono 0 9 Wells, Wayne From: Wells, Wayne Sent: Tuesday, December 29, 2009 10:35 AM To: 'anneberle@mindspring.com' Subject: DVA2009-00004, 311 S. Gulfview Blvd. - Surf Style/Britts Anne - Attached are the colored elevations and perspectives for this project. Let me know if you need anything else. Wayne M. Wells, A/CP Planner III City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756-5520 Phone: 727-562-4504 Fax: 727-562-4865 Revised DVA Revised DVA Revised DVA Revised DVA hibit B 4A Conchibit B 413 Conchibit B 4C Conchibit B 4D Cono 0 Ol Wells, Wayne From: Doherty, Steve Sent: Tuesday, December 29, 2009 10:13 AM To: Melone, Donald Cc: Gluski, Roberta; Kurtz, Timothy M.; Carlson, Mark; Lopez, Perry; Wells, Wayne; Lopez, Perry Subject: RE: 311 South Gulfview Blvd Attachments: image001.gif Done. R/W Permit #2009-173 is ready for pick-up and Mr. Goulish has been advised. From: Melone, Donald Sent: Tuesday, December 29, 2009 8:47 AM To: Doherty, Steve Cc: Gluski, Roberta; Kurtz, Timothy M.; Carlson, Mark; Lopez, Perry; Wells, Wayne Subject: 311 South Gulfview Blvd Andy Goulish contractor for the above referenced site has called me in reference to the status of the right-of-way permit for the installation of the "wave wall". Steve can you please call him at 1-407-402- 3797. Thank you for your attention in this matter. Donald D. Melone Engineering Specialist I City of Clearwater 727-562-4798 • CDB Meeting Date: January 5, 2010 ?? 1 A Case Number: DVA2009-00004 (Related to FLD2009-09032) t?? A' Agenda Item: C.1. Owner/Applicant: L.O.M., Inc. Representative: Alex Azan, PE, Keith Zayac & Associates, Inc. Addresses: 311 S. Gulfview Boulevard (including 305, 309 and 315 S. Gulfview Boulevard and 320 Coronado Drive) CITY OF CLEARWATER PLANNING AND DEVELOPMENT DEPARTMENT STAFF REPORT GENERAL INFORMATION: REQUEST: Review of, and recommendation to the City Council, of a Development Agreement between L.O.M. Inc. (the property owner) and the City of Clearwater as per Beach by Design and Community Development Code Section 4-606. CURRENT ZONING: Tourist (T) District CURRENT FUTURE LAND USE CATEGORY: Resort Facilities High (RFH) BEACH BY DESIGN CHARACTER DISTRICT: Beach Walk PROPERTY USE: Current: Retail Sales and Services of 7,128 square feet of floor area and a Restaurant of 6,058 square feet of floor area Proposed: Retail Sales and Services of 34,183 square feet of floor area, a Restaurant of 6,887 square feet of floor area and a Parking Garage of 349 parking spaces (including 48 accessory parking spaces for the Retail Sales and Services and Restaurant uses and 301 public parking spaces) (0.94 Floor Area Ratio) at a height of 59.5 feet (to highest parking deck) EXISTING North: Tourist (T) District SURROUNDING Mixed Use (overnight accommodations and attached ZONING AND USES: dwellings) and Parking Garage South: Tourist (T) District Overnight accommodations East: Tourist (T) District Overnight accommodations and Retail sales and services West: Open Space/Recreation (OS/R) District Clearwater Beach Community Development Board - January 5; 2010 DVA2009-00004 - Page 1 of 4 • o UPDATE Due to non-posting of public hearing notification signs on the subject property, this application was continued by the CDB at their December 15, 2009, meeting to a special meeting on January 5, 2010. The CDB at their December 15, 2009, meeting approved the companion Flexible Development application FLD2009-09032 with 15 conditions. ANALYSIS: Site Location and Existing Conditions: The 0.99 acres is located between S. Gulfview Boulevard and Coronado Drive approximately 200 feet south of Third Street. The main portion of the subject property (311 S. Gulfview Boulevard [including 305, 309 and 315 S. Gulfview Boulevard]) is currently developed with a retail sales use of 7,128 square feet of floor area (Surf Style) and a restaurant of 6,058 square feet of floor area (Britt's). The other portion of the subject property (320 Coronado Drive) is developed with a detached dwelling. Development Proposal: The development proposal includes a companion Flexible Development application (FLD2009- 09032) to permit retail sales uses of 34,183 square feet of floor area, a restaurant of 6,887 square feet of floor area and a parking garage of 349 parking spaces (including 48 accessory parking spaces for the retail sales and restaurant uses and 301 public parking spaces). Development Agreement: The City has been desirous of constructing additional parking to meet the needs of visitors to the beach. City Council looked at various proposals/sites and decided to negotiate with this applicant for the construction of parking open to the public on the subject property. The proposed parking garage with 301 parking spaces open to the public will be constructed by the developer at their cost. Project financing will be secured by the Retail Unit and the Parking Unit by the developer, with such financing contingent upon the City entering into a Put Agreement. Under such Put Agreement, the project lender will have the option of five years from the date of completion of the project to require the City to purchase the Parking Unit for $9.3 million if the lender forecloses against the project should the developer default. The City must reserve the $9.3 million during the term of the Put Agreement. The proposed Development Agreement will be in effect for a period not to exceed five (5) years following the completion date of the project and includes the following main provisions: ? Provides for at least 301 parking spaces open to the public, with at least 250 of these spaces available on an hourly basis; ? Separates the project into a Retail Unit(s) (total of 38,249 square feet of retail/commercial floor area on the ground floor consisting of approximately 31,421 square feet of retail space [does not include the Beach Walk Thru Area], 6,828 square feet of restaurant space and 48 parking spaces on the second floor) and a Parking Unit (301 parking spaces); Community Development Board - January 5, 2010 DVA2009-00004 - Page 2 of 4 0 0 ? Includes the formation of a three-unit condominium for the project (one unit for the retail portion, the 48 associated parking spaces and the delivery area, one for the restaurant portion and one for the Parking Unit); ? Includes provisions for the approval by FEMA of a Flood Zone map change from a VE- Zone to an AE-Zone to allow construction of the Retail Unit on the ground floor of the building through the construction of a wave dissipating wall within the S. Gulfview Boulevard right-of-way; o Requires the developer commence construction of the project on or before June 30, 2010; ? Requires the City review (approval or denial) of the building permit within 30 days of submission of the permit; and ? Authorizes cafe seating within the S. Gulfview Boulevard right-of-way. The Community Development Board (CDB) has been provided with the most recent Development Agreement. The City Council may enter into Development Agreements to encourage a stronger commitment on comprehensive and capital facilities planning, to ensure the provision of adequate public facilities for development, to encourage the efficient use of resources, and to reduce the economic cost of development. The CDB is required to review the proposed Development Agreement and make a recommendation to the City Council. SUMMARY AND RECOMMENDATION: The Development Review Committee (DRC) reviewed the application and supporting materials at its meetings of October 1 and November 5, 2009, and deemed the development proposal to be legally sufficient to move forward to the CDB, based upon the following: Findings of Fact: The Planning and Development Department, having reviewed all evidence submitted by the applicant and requirements of the Community Development Code, finds that there is substantial competent evidence to support the following findings of fact: 1. That the 0.99 acres is located between S. Gulfview Boulevard and Coronado Drive approximately 200 feet south of Third Street; 2. That the property is located within the Tourist (T) District and the Resort Facilities High (RFH) Future Land Use Plan category; 3. That the development proposal is subject to the requirements of Beach by Design and the Design Guidelines contained therein as the property is located within the Beach Walk character district. Conclusions of Law: The Planning and Development Department, having made the above findings of fact, reaches the following conclusions of law: Community Development Board - January 5, 2010 DVA2009-00004 - Page 3 of 4 0 0 1. That the Development Agreement implements and formalizes the requirements for the construction of on-site and off-site improvements under the related site plan proposal (FLD2009-09032); 2. That the Development Agreement complies with the standards and criteria of Section 4-606 of the Community Development Code; 3. That the Development Agreement is consistent with and furthers the Visions, Goals, Objectives and Policies of the Comprehensive Plan; and 4. That the Development Agreement is consistent with the Visions, Goals, Objectives and Policies of Beach by Design and the Beach Walk character district. Based upon the above, the Planning and Development Department recommends the APPROVAL, and recommendation to the City Council, of a Development Agreement between L.O.M. Inc. (the property owner) and the City of Clearwater as per Beach by Design and Community Development Code Section 4-606, for the property at 311 S. Gulfview Boulevard (including 305, 309 and 315 S. Gulfview Boulevard and 320 Coronado Drive). Prepared by Planning and Development Department Staff. r ,, / ?'?k • V ?/ Wayne M. ells, AICP, Planner III ATTACHMENTS: ? Development Agreement with Exhibits ? Location Map ? Aerial Map ? Future Land Use Map ? Zoning Map S: (Planning DepartmentlCD BIFLEX (FLD)IPending casesl Up for the next CDBIDVA2009-00004 - Gulfview S 0311 (T) 2009.xz - 1.5.10 CDB + 1.14.10 CC- WWIGulfview S 0311 DVA Staff Report for 1.5.10 CDB.doc Community Development Board - January 5, 2010 DVA2009-00004 - Page 4 of 4 • Ll Wells, Wayne From: Wells, Wayne Sent: Monday, December 28, 2009 10:52 AM To: 'anneberle@mindspring.com' Subject: DVA2009-00004, 311 S. Gulfview Blvd. - Surf Style/Britts Anne - Attached is the PDG of the Development Agreement. There are some Exhibits still missing that they are working on with Pam Akin. Wayne M. Wells, A/CP Planner III City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756-5520 Phone: 727-562-4504 Fax: 727-562-4865 Revised DVA th Exhibits A C • Pill Wells, Wayne From: Dewitt, Gina Sent: Wednesday, December 23, 2009 10:13 AM To: 'lashn@gtlaw.com' Cc: Wells, Wayne; Akin, Pam; Dougall-Sides, Leslie Subject: GM08-92168-015: LOM DVA Per our conversation today, Pam is okay with your client submitting the current version of the development agreement and exhibits for the January CDB meeting. They are not final, but there are no changes that will need to be made to the actual terms of the agreement. Pam will be back on January 4, and she does have some minor clean ups she wants to make to the documents. Wayne, if you need assistance uploading the documents to Muniagenda, I can get that taken care of for you. Thanks. Gina DeWitt Legal Office Administrator Clearwater City Attorney's Office 112 5. Osceola Ave. 3rd Floor Clearwater, FL 33756 727-562-4011 direct 727-562-4021 fax gina.dewitt@myclearwater.com • Wells, Wayne From: Dougall-Sides, Leslie Sent: Tuesday, December 22, 2009 7:01 PM To: Wells, Wayne Subject: RE: Revised Development Agreement Attachments: image001.png Wayne, FYI, Pam will be out until January 4. From: Wells, Wayne Sent: Tue 12/22/2009 4:12 PM To: 'Goulish, Andy' Cc: alex@keithzayac.com; Clayton, Gina; Tefft, Robert; Dougall-Sides, Leslie; Akin, Pam Subject: Revised Development Agreement Andy - Due to the Christmas holidays, there are a number of City employees taking vacation time off. Certain information and attachments have to be uploaded into the City Council agenda system, with which I am unfamiliar with, which is why I had requested this by 3 pm today as my person that would upload such is gone after today. So, per internal City schedules, I must have everything into the agenda system on Monday. I do not want to wait that long because of the holidays, as I will now have to have other individuals upload my information. Time is of the essence, as deadlines must be met for City Council. Additionally, I must get information out to the CDB for their special meeting. Therefore, you have probably gathered that, based on your request, I am relenting to your requested extension (although it doesn't sound like I am going to get it all tomorrow either). However, please do not push me to the end time, potentially where I may not have anyone here to upload the information and deadlines missed. Wayne From: Goulish, Andy [mailto:AGoulish@finfrockdmc.com] Sent: Tuesday, December 22, 2009 3:03 PM To: Wells, Wayne Cc: alex@keithzayac.com Subject: FW: Revised Development Agreement Wayne, It appears that the final touches are still being made on the Development Agreement. We should have a majority of the Exhibits by tomorrow. Please let me know if we can be granted a time extension to provide this information or if you have had conversations with the City's Legal Department. Thanks, Andy Andrew J. Goulish, PE / Project Manager, Construction 2400 Apopka Boulevard / Apopka. FL 32703 T: 407.293.4000 / C: 407.402.3797 / F: 407.36 7.2468 aeoul ishLd;:finfrock dmc.com FINFROCK DCSIiSW?4l4lf1irAC t U Fi•E$F3Y?? ?..4 htto:/ Avwtiv.finfrocWme.com NOTICE: The information contained in this e-mail transmission is intended only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please promptly notify the sender by reply e-mail, and then destroy all copies of the transmission. From: LashN@gtlaw.com [mailto:LashN@gtlaw.com] Sent: Tuesday, December 22, 2009 11:23 AM To: gili@surf-style.com; Goulish, Andy Cc: alexplisko@verizon.net Subject: RE: Revised Development Agreement I am waiting for Pam Akin's assistant to call me back. Will let you know once she does. Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein. The information contained in this transmission may contain privileged and confidential information. It is intended only for the use of the person(s) named above. If you are not the intended recipient, you are hereby notified,that any review, dissemination, distribution or duplication of this communication is strictly prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message. To reply to our email , administrator directly, please send an email to postmasterfttlaw.com. From: Gilad Ovaknin [mailto:gili@surf-style.com] Sent: Tuesday, December 22, 2009 9:48 AM To: Goulish, Andy Cc: Alex Plisko; Lash, Nancy (Shld-Mia-RE) Subject: RE: Revised Development Agreement Andy, The legal documents have not been finalized yet. City attorney had indicated that she will send comments on the development agreement; Put agreement and we are still finalizing the version of the condo documents per city comments. Our attorney , Nancy , had put a call into Pam Akin, city attorney but it seems she is out until the 4"We are trying to communicate with her assistant to see how we approach the submittal and I will return to you about it. I also need from you or KZA office the legal description of the easement LOM will grant the city on Coronado lane so we can finalize this. Thanks 0 9 Wells, Wayne From: Dougall-Sides, Leslie Sent: Tuesday, December 22, 2009 7:03 PM To: Akin, Pam Cc: Wells, Wayne Subject: FW: LOM Parking Garage Attachments: image001.jpg Pam, I will call Ms. Lash tomorrow. I will check Documents in CP to see whether there is a current version of the DVA. I cannot make any representations on behalf of the City at this point. From: Kuligowski, Patricia Sent: Tue 12/22/2009 4:11 PM To: Dougall-Sides, Leslie Subject: LOM Parking Garage Leslie, Nancy Lash from Greenberg, Traurig, PA in Miami, was calling regarding the LOM Parking Garage. She said she has been working with Pam but since Pam was out she wanted to speak with you. She can be reached at 305- 579-0884 Thanks, Patty i 6 0 0 Wells, Wayne From: Dougall-Sides, Leslie Sent: Wednesday, December 23, 2009 4:39 PM To: Clayton, Gina Cc: Wells, Wayne Subject: FW: MuniAgenda Status as of 12/22 for 1/11/10 Work Session & 1/14/10 Council Mtg Attachments: image001.gif Per Cyndie, Planning will be the sponsor of the L.O.M. item. From: Dougall-Sides, Leslie Sent: Wednesday, December 23, 2009 8:37 AM To: Clayton, Gina Subject: RE: MuniAgenda Status as of 12/22 for 1/11/10 Work Session & 1/14/10 Council Mtg Ch. 163 From: Clayton, Gina Sent: Tuesday, December 22, 2009 3:17 PM To: Vaughan, Karen; Dougall-Sides, Leslie Subject: RE: MuniAgenda Status as of 12/22 for 1/11/10 Work Session & 1/14/10 Council Mtg.-; Leslie - is this a 163 agreement or some other kind? From: Vaughan, Karen Sent: Tuesday, December 22, 2009 11:48 AM To: Arrien, Joe; Carnley, Rick; Castelli, Joelle Wiley; Clayton, Gina; Davis-Gryce, Cynthia; Delk; Michael;. Donnelly, Jim; Dougall-Sides, Leslie; Dunbar, Kevin E.; Fahey, Robert; Geary, Jim; Geer, Jamie; Gloster, Earl; Gornez, Robin; Goudeau, Cyndie; Holmes, Michael; Horne, William; Irwin, Rod; Johnson, Gary; Kivett, Tara; Klein, Sidney;, Mahony, Laura; Lopez, Geraldine Campos; Mahony, Thomas; Mayer, Daniel; McKibben, George; Mercer, Tracy; Morris, William D.; Orr, Courtney; Pickell, Barbara; Porter, Catherine; Quillen, Michael; Rice, Scott; Roseto, Joseph; Scott, John:C.; Silverboard, Jill; Simmons, Margie; Soto, Camilo; Surette, Rob; Warrington, Chuck; Wilson, Tina . . , . Cc: Abbott, Jamie; Aldrich, Angela; Alequin, Ray R.; Ausanio, Holly; Ayo, Ellen; Balog, Denise; Barden, Carol; Barrett, Earl; Beane, Andrea; Bedini, Kathleen; Bennett, Nan; Bertels, Paul; Bruch, Tracey; Call, Rosemarie; Cameron, Laura; Chaplinsky, Paula; Cheatham, Kristi; Chesney, Ed; Clement, Betsy; Crawford, Judith; Cressman, Mary; Cunningham, Shaun; Dembinski, Pawel; Dewitt, Gina; Doherty, Steve; DuPont, Kimberly; Eckman, Alice; Farnham, Karen; FitzGerald, Diane; Ford, Deborah; Foster, Kim; Garriott, Kevin; Geary, Cindy; Gilmore, Stephanie; Haley,, Kiana Reine; Hall, Donald; Harriger, Sandy; Hastings, Lynn; Herman, Sandra; Hollander, Gwen; Tefft, Cathy; Jackson, Kari; Jaroszek, Bill; Josef, Veronica; Kivett, Tara; Kolmer, Judith; Kurtz, Timothy M.; Lacey, Rosanne; LaCosse, Judith; Langille, Brian; Lutz, Deb; Manni, Diane; Maran, Robert (Bob); Martell, Joan; Maue, Robert; McKinney, Allison J.; Moran, Martin; Murray, Michael; Newell, Lindsey; Nguyen, Lan-Anh; O'Brien, Kelly; O'Brien, Kelly (P.D.); Powers, David; Prior, Ian; Ravins, Jay; Reid, Debbie; Rini, Gail; Robertson, Tom; Rowland, Terri; Sahr, Michael; Sansom, Stephanie; Shoberg, Elliot E.; Sides, Ken; Sprague, Nicole; Stefanelli, Stephanie; Tefft, Cathy; Teunis, Mark; Holbrook, LeAnn; Vaughan, Karen; Vo, Phuong; Vrana, Tammy; Walton, Sharon; Warren, Pat; Watkins, Sherry; Westerfield, Rosie; Wills, Anne; Wilson, Charles E.; Yellin, Catherine Subject: MuniAgenda Status as of 12/22 for 1/11/10 Work Session & 1/14/10 Council Mtg Hello! Please see attached for current status of items scheduled to go to the 1/11 & 1/14 meetings. It's all red and green! Appropriate for the holidays!! Karen Vaughan X Administrative Analyst Official Records & Legislative Services Ph #: 727-562-4091 Fax #: 727-562-4086 2 • Resolution No. 10-01 - Case No. DVA2009-00004 - 311 S. Gulfview Boulevard (including 305, 309 and 315 S. Gulfview Boulevard and 320 Coronado Drive) SUBJECT/RECOMMENDATION APPROVAL of a Development Agreement between L.O.M. Inc. (the property owner) and the City of Clearwater as per Beach by Design and Community Development Code Section 4-606. SUMMARY: ¦ The 0.99 acres is located between S. Gulfview Boulevard and Coronado Drive approximately 200 feet south of Third Street. ¦ The main portion of the subject property (311 S. Gulfview Boulevard [including 305, 309 and 315 S. Gulfview Boulevard]) is currently developed with a retail sales use of 7,128 square feet of floor area (Surf Style) and a restaurant of 6,058 square feet of floor area (Britt's). The other portion of the subject property (320 Coronado Drive) is developed with a detached dwelling. On December 15, 2009, the Community Development Board (CDB) approved with 15 conditions of approval a Flexible Development application to permit Retail Sales and Services of 34,183 square feet of floor area, a Restaurant of 6,887 square feet of floor area and a Parking Garage of 349 parking spaces (including 48 accessory parking spaces for the Retail Sales and Services and Restaurant uses and 301 public parking spaces) (FLD2009-09032). The proposal is in compliance with the standards for development agreements, is consistent with the Comprehensive Plan and furthers the vision of beach redevelopment set forth in Beach by Design. The proposed Development Agreement will be in effect for a period not to exceed five (5) years following the completion date of the project, meets the design guidelines of Beach by Design and includes the following main provisions: ? Provides for at least 301 parking spaces open to the public, with at least 250 of these spaces available on an hourly basis; ? Separates the project into a Retail Unit(s) (total of 38,249 square feet of retail/commercial floor area on the ground floor consisting of approximately 31,421 square feet of retail space [does not include the Beach Walk Thru Area], 6,828 square feet of restaurant space and 48 parking spaces on the second floor) and a Parking Unit (301 parking spaces); ? Includes the formation of a three-unit condominium for the project (one unit for the retail portion, the 48 associated parking spaces and the delivery area, one for the restaurant portion and one for the Parking Unit); ? Includes provisions for the approval by FEMA of a Flood Zone map change from a VE- Zone to an AE-Zone to allow construction of the Retail Unit on the ground floor of the building through the construction of a wave dissipating wall within the S. Gulfview Boulevard right-of-way; ? Requires the developer commence construction of the project on or before June 30, 2010; ? Requires the City review (approval or denial) of the building permit within 30 days of submission of the permit; and ? Authorizes cafe seating within the S. Gulfview Boulevard right-of-way. The Community Development Board reviewed this Development Agreement application at its public hearing on January 5, 2010 (DVA2009-00004). S:lPtnnning Departmentl C D BIFLEX (FLD) (Pending cnseslUp for the next CDBIDVA2009-00004 - Gulfview S 0311 (T) 2009.xx - 1.5.10 CDB + 1.14.10 CC - WWIGutfview S 0311 DVA Summaryfor 1.14.10 CC.doc i • RESOLUTION NO. 10-01 A RESOLUTION OF THE CITY OF CLEARWATER, FLORIDA APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF CLEARWATER AND L.O.M., INC; PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Clearwater is desirous of entering into a development agreement with L.O.M., Inc.; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CLEARWATER, FLORIDA: Section1. The Development Agreement between the City of Clearwater and L.O.M., Inc., a copy of which is attached as Exhibit "A," is hereby approved. Section 2. This resolution shall take effect immediately upon adoption. PASSED AND ADOPTED this day of Approved as to form: Pamela K. Akin City Attorney 2010. Frank V. Hibbard Mayor Attest: Cynthia E. Goudeau City Clerk Resolution No. 10-01 0 0 Wells, Wayne From: Hollander, Gwen Sent: Monday, December 21, 2009 2:18 PM To: Wells, Wayne Cc: Clayton, Gina; Dewitt, Gina Subject: RE: DVA2009-00004, 311 S. Gulfview Blvd. Wayne, Attached is the resolution for the L.O.M. development agreement. 10-01.docx From: Wells, Wayne Sent: Monday, December 21, 2009 2:11 PM To: Hollander, Gwen Cc: Clayton, Gina Subject: DVA2009-00004, 311 S. Gulfview Blvd. Gwen - The above referenced Development Agreement has been scheduled for public hearing by the City Council on January 14, 2010. Could you ensure that a Resolution is prepared for such, is sent to me once it is prepared? Could you also let me know of the Resolution number as soon as available? Wayne M. Wells, AICP Planner III City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756-5520 Phone: 727-562-4504 Fax: 727-562-4865 1 CDB Meeting Date: December 15, 2009 Case Number: DVA2009-00004 (Related to FLD2009-09032) Agenda Item: E.2. (Related to D.4.) Owner/Applicant: L.O.M., Inc. Representative: Alex Azan, PE, Keith Zayac & Associates, Inc. Addresses: 311 S. Gulfview Boulevard (including 305, 309 and 315 S. Gulfview Boulevard and 320 Coronado Drive) CITY OF CLEARWATER PLANNING AND DEVELOPMENT DEPARTMENT STAFF REPORT GENERAL INFORMATION: REQUEST: Review of, and recommendation to the City Council, of a Development Agreement between L.O.M. Inc. (the property owner) and the City of Clearwater as per Beach by Design and Community Development Code Section 4-606. CURRENT ZONING: Tourist (T) District CURRENT FUTURE LAND USE CATEGORY: Resort Facilities High (RFH) BEACH BY DESIGN CHARACTER DISTRICT: Beach Walk PROPERTY USE: Current: Retail Sales and Services of 7,128 square feet of floor area and a Restaurant of 6,058 square feet of floor area Proposed: Retail Sales and Services of 34,183 square feet of floor area, a Restaurant of 6,887 square feet of floor area and a Parking Garage of 349 parking spaces (including 48 accessory parking spaces for the Retail Sales and Services and Restaurant uses and 301 public parking spaces) (0.94 Floor Area Ratio) at a height of 59.5 feet (to highest parking deck) EXISTING North: Tourist (T) District SURROUNDING Mixed Use (overnight accommodations and attached ZONING AND USES: dwellings) and Parking Garage South: Tourist (T) District Overnight accommodations East: Tourist (T) District Overnight accommodations and Retail sales and services West: Open Space/Recreation (OS/R) District Clearwater Beach g Community Development Board - December 15, 2009 DVA2009-00004 - Page 1 of 4 0 0 ANALYSIS: Site Location and Existing Conditions: The 0.99 acres is located between S. Gulfview Boulevard and Coronado Drive approximately 200 feet south of Third Street. The main portion of the subject property (311 S. Gulfview Boulevard [including 305, 309 and 315 S. Gulfview Boulevard]) is currently developed with a retail sales use of 7,128 square feet of floor area (Surf Style) and a restaurant of 6,058 square feet of floor area (Britt's). The other portion of the subject property (320 Coronado Drive) is developed with a detached dwelling. Development Proposal: The development proposal includes a companion Flexible Development application (FLD2009- 09032) to permit retail sales uses of 34,183 square feet of floor area, a restaurant of 6,887 square feet of floor area and a parking garage of 349 parking spaces (including 48 accessory parking spaces for the retail sales and restaurant uses and 301 public parking spaces). Development Agreement: The City has been desirous of constructing additional parking to meet the needs of visitors to the beach. City Council looked at various proposals/sites and decided to negotiate with this applicant for the construction of parking open to the public on the subject property. The proposed parking garage with 301 parking spaces open to the public will be constructed by the developer at their cost. Project financing will be secured by the Retail Unit and the Parking Unit by the developer, with such financing contingent upon the City entering into a Put Agreement. Under such Put Agreement, the project lender will have the option of five years from the date of completion of the project to require the City to purchase the Parking Unit for $9.3 million if the lender forecloses against the project should the developer default. The City must reserve the $9.3 million during the term of the Put Agreement. The proposed Development Agreement will be in effect for a period not to exceed five (5) years following the completion date of the project and includes the following main provisions: ? Provides for at least 301 parking spaces open to the public, with at least 250 of these spaces available on an hourly basis; ? Separates the project into a Retail Unit(s) (total of 38,249 square feet of retail/commercial floor area on the ground floor consisting of approximately 31,421 square feet of retail space [does not include the Beach Walk Thru Area], 6,828 square feet of restaurant space and 48 parking spaces on the second floor) and a Parking Unit (301 parking spaces); ? Includes the formation of a three-unit condominium for the project (one unit for the retail portion, the 48 associated parking spaces and the delivery area, one for the restaurant portion and one for the Parking Unit); ? Includes provisions for the approval by FEMA of a Flood Zone map change from a VE- Zone to an AE-Zone to allow construction of the Retail Unit on the ground floor of the building through the construction of a wave dissipating wall within the S. Gulfview Boulevard right-of-way; Community Development Board - December 15, 2009 DVA2009-00004 - Page 2 of 4 • ? Requires the developer commence construction of the project on or before June 30, 2010; ? Requires the City review (approval or denial) of the building permit within 30 days of submission of the permit; and ? Authorizes cafe seating within the S. Gulfview Boulevard right-of-way. The Community Development Board (CDB) has been provided with the most recent Development Agreement. The City Council may enter into Development Agreements to encourage a stronger commitment on comprehensive and capital facilities planning, to ensure the provision of adequate public facilities for development, to encourage the efficient use of resources, and to reduce the economic cost of development. The CDB is required to review the proposed Development Agreement and make a recommendation to the City Council. SUMMARY AND RECOMMENDATION: k, .. The Development Review Committee (DRC) reviewed the application and supporting,materials. at its meetings of October 1 and November 5, 2009, and deemed the development proposal to be legally sufficient to move forward to the CDB, based upon the following: Findings of Fact: The Planning and Development Department, having reviewed all evidence submitted by the applicant and requirements of the Community Development Code, finds that there is substantial competent evidence to support the following findings of fact: 1. That the 0.99 acres is located between S. Gulfview Boulevard and Coronado Drive approximately 200 feet south of Third Street; 2. That the property is located within the Tourist (T) District and the Resort Facilities High (RFH) Future Land Use Plan category; 3. That the development proposal is subject to the requirements of Beach by Design and the Design Guidelines contained therein as the property is located within the Beach Walk character district. Conclusions of Law: The Planning and Development Department, having made the above findings of fact, reaches the following conclusions of law: 1. That the Development Agreement implements and formalizes the requirements for the construction of on-site and off-site improvements under the related site plan proposal (FLD2009-09032); 2. That the Development Agreement complies with the standards and criteria of Section 4-606 of the Community Development Code; 3. That the Development Agreement is consistent with and furthers the Visions, Goals, Objectives and Policies of the Comprehensive Plan; and 4. That the Development Agreement is consistent with the Visions, Goals, Objectives and Policies of Beach by Design and the Beach Walk character district. Community Development Board - December 15, 2009 DVA2009-00004 - Page 3 of 4 0 0 Based upon the above, the Planning and Development Department recommends the APPROVAL, and recommendation to the City Council, of a Development Agreement between L.O.M. Inc. (the property owner) and the City of Clearwater as per Beach by Design and Community Development Code Section 4-606, for the property at 311 S. Gulfview Boulevard (including 305, 309 and 315 S. Gulfview Boulevard and 320 Coronado Drive). Prepared by Planning and Development Department Staff. .1ja'. , ?N' kja' Wayne M. ells, AICP, Planner III ATTACHMENTS: ? Development Agreement with Exhibits ? Location Map ? Aerial Map ? Future Land Use Map ? Zoning Map S.-Oanning DepartmentlC D BIFLEX (FLD)IPending casesl Up for the next CDBIDVA2009-00004 - Gul(view S 0311 (T) 2009.xx - 12.15.09 CDB - WFMGulfview S 0311 DVA Staff Report for 12.15.09 CDB.doc Community Development Board - December 15, 2009 DVA2009-00004 - Page 4 of 4 Wells, Wayne From: Watkins, Sherry Sent: Friday, December 11, 2009 1:39 PM To: Stafford, Shawn; Wills, Anne; Delk, Michael; Clayton, Gina; Wells, Wayne; Tefft, Robert; Brian Barker; Doreen Dipolito; Dougall-Sides, Leslie; Frank Dame; Gina Grimes; Jackie Shevefield; Jordan Behar; Nicholas C Fritsch; Richard Adelson; Thomas Coates Cc: Sullivan, Patricia; Call, Rosemarie; Goudeau, Cyndie Subject: Special CDB Meeting on January 5, 2010 Attachments: image001.gif Importance: High Good Afternoon Community Development Board Members, Our special Community Development Board meeting has been scheduled for January 5, 2010 at 1PM. Case DVA2009-00004, 311 S. Gulfview Blvd., Surf Style Parking Garage that was in your packages will need to be kept after the December 15, 2009 meeting and brought to the January 5, 2010 meeting. This case will need to be continued from the December 15, 2009 meeting to the Special meeting January 5, 2010. Thank you, Sherry Watkins Administrative Analyst Planning and Development Department 727-562-4582 Wells, Wayne From: Wells, Wayne Sent: Tuesday, December 08, 2009 4:26 PM To: Akin, Pam Cc: Delk, Michael; Clayton, Gina; Tefft, Robert; Garriott, Kevin; Rice, Scott; Bruce, Larry Subject: DVA2009-00004, 311 S. Gulfview Blvd. (Surf Style/Britts) Pam - I am confused as to the review and approval process and permitting of this project, as well as the time frames for such, as set forth in the Development Agreement. Since it appears that this project is on an accelerated schedule, since they have a commencement date of June 30, 2010. Section 3.02(1) deals with applications for development approval and states that the "City shall, to the extent possible, review and process the foregoing applications and permits on an expedited basis." A list of all permits and approval is supposed to be attached as Exhibit H, but my copy of the Development Agreement does not have any of the Exhibits attached. A project development schedule is attached to the Development Agreement as Exhibit I, but, again, there is no Exhibits attached to my copy. Section 4.01(3) of the Development Agreement is where it starts getting confusing, as it deals with the approval of plans and specifications for the commercial parking garage. This Section requires the notification in writing of the approval or denial of the plans and specifications within 30 days of receipt, wherein failure to respond within the 30 day time :frame is deemed approval. Is this an actual permit for construction, meaning site and building plans, or is it something else? It is also confusing as to whom such plans and specifications are being submitted to (what department) and whom is to respond (what department) and to whom. Can you sort out my confusion? Wayne M. Wells, AICP Planner III City of Clearwater 100 South Myrtle Avenue _ Clearwater, FL 33756-5520 Phone: 727-562-4504 Fax: 727-562-4865 0 9 Wells, Wayne From: Wells, Wayne Sent: Tuesday, December 08, 2009 7:25 AM To: Delk, Michael; Clayton, Gina; Akin, Pam Subject: DVA2009-00004, 311 S. Gulfview Blvd. (Surf Style/Britts) Attached is the Staff Report for the above referenced Development Agreement (DVA), scheduled for the December 15, 2009, CDB meeting. In order to ensure accuracy of information regarding the proposed DVA, please review the Staff Report as soon as possible (no later than 9 am on Wednesday, December 9th), as the packages must be sent to the CDB members on Thursday. Thanks. Wayne M. Wells, A/CP Planner III City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756-5520 Phone: 727-562-4504 Fax: 72?7?5y62-4865 Gulfview S 1 DVA Staff Rel }' ?y'- Conditions Associated With ` DVA2009-00004 311 S GULFVIEW BLVD +1 E go's Engineering Condition Scott Rice 562-4781 09/17/2009 Include a provision in the DVA for the granting of an easement for the sidewalk along Coronado Not Met Drive. DSR 9/17/09 DSR 10/15/09 1. Damage to Beachwalk or other City infrastructure resulting from construction of the wave wall shall be repaired at the developer's expense. 2. The design and aesthetics of the wave wall shall be approved by the City prior to the commencement of construction. 3. An easement shall be provided for the sidewalk and the portion of the turn lane along Coronado Drive that are on private property. Zoning Condition Wayne Wells, AICP 727-562-4504 10/01/2009 11/20/09, 10/29/09 & 10/1/09 - WW Not Met Section 5.03 - Should it be listed in this Section that the Developer is responsible for the construction and maintenance of the "wave dissipating wall"? 09/30/2009 11/20/09, 10/29/09 & 9/30/09 - WW Not Met, Section 1.01(25) - Revise the address to "311 S. Gulfview Boulevard and 320 Coronado, Drive". 09/30/2009 11/20/09,10/29/09 & 9/30/09 - WW Not Met Section 5.02(1), line 7 - Need to fill in the "blank" time frame. Print Date: 11/20/2009 CaseConditons Page 1 of 1 • Wells, Wayne From: Doherty, Steve Sent: Tuesday, December 08, 2009 7:58 AM To: Wells, Wayne Cc: Rice, Scott; Delk, Michael; Akin, Pam; Clayton, Gina Subject: RE: Surf Style/Britts, 311 S. Gulfview Blvd. Wayne I agree January 19 would be the appropriate date for consideration of the vacation request (first reading), however, I do not have a complete application yet...I will contact Zayac's office again this morning to remind them that I need all required no objection letters before we can proceed. I appreciate the heads up on this issue, thanks. -Steve From: Wells, Wayne Sent: Tuesday, December 08, 2009 7:41 AM To: Doherty, Steve Cc: Rice, Scott; Delk, Michael; Akin, Pam; Clayton, Gina Subject: Surf Style/Britts, 311 S. Gulfview Blvd. Steve - As you may be aware, the Flexible Development and Development Agreement applications for this site for the Surf , Style/Britts project is scheduled for the December 15, 2009, CDB meeting. The Development Agreement application is also being scheduled for the January 19, 2010, City Council meeting. Since there is a vacation request for a portion of the S. Gulfview Boulevard right-of-way that goes along with this proposal, it would appear that the vacation request should also be on the same January 19th City Council agenda. Just wanted to let you know of the timing of these applications so that you can plan accordingly. Thanks. Wayne M. Wells, AICP Planner III City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756-5520 Phone: 727-562-4504 Fax: 727-562-4865 0 ?11 Wells, Wayne From: Clayton, Gina Sent: Monday, December 07, 2009 12:17 PM To: Wells, Wayne Subject: RE: Agenda Tracking as of 12-4-2009 Attachments: image002.gif I asked Sherry to put it on for the date last week. From: Wells, Wayne Sent: Monday, December 07, 2009 10:02 AM To: Clayton, Gina Subject: Agenda Tracking as of 12-4-2009 There is only one City Council meeting in January. From: Clayton, Gina Sent: Monday, December 07, 2009 8:40 AM To: Wells, Wayne; Watkins, Sherry; Vaughan, Karen; Gilmore, Stephanie Subject: RE: Agenda Tracking as of 12-4-2009 Shouldn't it go to the second meeting in Jan.? From: Wells, Wayne Sent: Saturday, December 05, 2009 11:30 AM To: Watkins, Sherry; Vaughan, Karen; Gilmore, Stephanie Cc: Clayton, Gina Subject: Agenda Tracking as of 12-4-2009 As for me, no date has been set for City Council for DVA2009-00004. Pam Akin said January. Potentially, this looks like a good date. From: Watkins, Sherry Sent: Friday, December 04, 2009 4:17 PM To: Vaughan, Karen; Gilmore, Stephanie Cc: Clayton, Gina; Wells, Wayne Subject: RE: Agenda Tracking as of 12-4-2009 TA2009-06007 please change date CDB 1/19/2010 CC1 2/18/2010 CC2 03/04/2010 Please add DVA2009-00004 311 Gulfview Blvd Surfstyle parking CC1 1/19/2010 1 will double check with Wayne on Tuesday to make sure about the DVA2009-00004 CC dates. If it is correct I will get you the information needed. Thank you, Sherry Watkins Administrative Analyst Planning and Development Depariment 727-562-4582 1 From: Vaughan, Karen Sent: Friday, December 04, 2009 1:21 PM To: Watkins, Sherry Subject: Agenda Tracking as of 12-4-2009 Here it is! Karen Vaughan Administrative Analyst Official Records & Legislative Services Ph #: 727-562-4091 Fax #: 727-562-4086 2 Wells, Wayne From: Akin, Pam Sent: Friday, November 20, 2009 4:27 PM To: Wells, Wayne Subject: RE: DVA2009-00004, 311 S. Gulfview Blvd., Surf Style/Britts It should be scheduled for Council in the January meeting. I am out of the office until the 30t" and the 30th is a Council Worksession so the revisions will not be made on that day From: Wells, Wayne Sent: Friday, November 20, 2009 4:19 PM To: Akin, Pam Cc: Delk, Michael; Clayton, Gina; Tefft, Robert; Watkins, Sherry Subject: DVA2009-00004, 311 S. Gulfview Blvd., Surf Style/Britts Pam - This Development Agreement is being scheduled for the December 15, 2009, Community Development Board meeting. Some items that I am seeing in the most recent draft of the Development Agreement that are questionable, need to be revised or need to be included are: 1. Page 1, Seventh Whereas, last line and at least Page 10, Section 5.03(3) -This indicates there will be 301 parking spaces open to the public. Is it limited to 300 spaces? Yes, these are the spaces to be possibly purchased by the City 2. Section 5.03 - Should it be listed in this Section that the Developer is responsible for the construction and maintenance of the "wave dissipating wall"? 3. Section 1.01(25) - Property Appraiser's office recognizes 309 and 311 S. Gulfview Blvd and 320 Coronado Drive. The 315 S. Gulfview Blvd. address used in this Section is a correct additional address; however we are using 311 S. Gulfview"Blvd. as the primary address (including 305, 309 and 315 S. Gulfview Boulevard and 320 Coronado Drive). This should be corrected in this Section to 311 S. Gulfview Blvd. 4. Section 5.02(1), line 7 - Need to fill in the "blank" time frame. 5. An Engineering comment was "Damage to Beachwalk or other City infrastructure resulting from construction of the wave wall shall be repaired at the developer's expense." I don't know if this was addressed in the revised DVA. It is in the Easement and letter agreement 6. An Engineering comment was "The design and aesthetics of the wave wall shall be approved by the City prior to the commencement of construction." I don't know if this was addressed in the revised DVA. 7. An Engineering comment was "An easement shall be provided for the sidewalk and the portion of the turn lane along Coronado Drive that are on private property." I don't know if this was addressed in the revised DVA . Isn't this usually a site plan condition? If revisions are to be made to the current document, any revised DVA document needs to be swapped out with the CDB packets by noon on November 30th, so that I can finalize the Staff Report for mail out later to the CDB. Additionally, is there a meeting date that I should be setting this DVA up for City Council? Wayne M. Wells, AICP Planner III City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756-5520 • • Wells, Wayne From: Wells, Wayne Sent: Friday, November 20, 2009 4:21 PM To: Wells, Andrea Subject: DVA2009-00004, 311 S. Gulfview Blvd., Surf Style/Britts Since Pam is out of the office, I am forwarding this to you. From: Wells, Wayne Sent: Friday, November 20, 2009 4:19 PM To: Akin, Pam Cc: Delk, Michael; Clayton, Gina; Tefft, Robert; Watkins, Sherry Subject: DVA2009-00004, 311 S. Gulfview Blvd., Surf Style/Britts Pam - This Development Agreement is being scheduled for the December 15, 2009, Community Development Board meeting. Some items that I am seeing in the most recent draft of the Development Agreement that are questionable, need to be revised or need to be included are: 1. Page 1, Seventh Whereas, last line and at least Page 10, Section 5.03(3) -This indicates there will be 301 parking spaces open to the public. Is it limited to 300 spaces? 2. Section 5.03 - Should it be listed in this Section that the Developer is responsible for the. construction and. maintenance of the "wave dissipating wall"? 3. Section 1.01(25) Property Appraiser's office recognizes 309 and 311 S. Gulfview Blvd and 320 Coronado Drive. The 315 S. Gulfview Blvd. address used in this Section is a correct additional address, however we are using 311 S. Gulfview Blvd. as the primary address (including 305, 309 and 315 S. Gulfview Boulevard and 320 Coronado Drive). This should be corrected in this Section to 311 S. Gulfview Blvd. 4. Section 5.02(1), line 7 - Need to fill in the "blank" time frame. 5. An Engineering comment was "Damage to Beachwalk or other City infrastructure resulting from construction of the wave wall shall be repaired at the developer's expense." I don't know if this was addressed in the revised DVA. 6. An Engineering comment was "The design and aesthetics of the wave wall shall be approved by the City prior to the commencement of construction." I don't know if this was addressed in the revised DVA. 7. An Engineering comment was "An easement shall be provided for the sidewalk and the portion of the turn lane along Coronado Drive that are on private property." I don't know if this was addressed in the revised DVA. If revisions are to be made to the current document, any revised DVA document needs to be swapped out with the CDB packets by noon on November 30th, so that I can finalize the Staff Report for mail out later to the CDB. Additionally, is there a meeting date that I should be setting this DVA up for City Council? Wayne M. Wells, AICP Planner III City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756-5520 Phone: 727-562-4504 Fax: 727-562-4865 10 Wells, Wayne From: Doherty, Steve Sent: Wednesday, November 18, 2009 2:21 PM To: Watkins, Sherry Cc: DRC Members Subject: RE: Resubmittals for the December 15, 2009 meeting Attachments: image001.gif Engineering (Gen. Eng./Storm/Enviro./Traffic) has no issues having all cases go forward as resubmitted. Some changes to conditions of approval will follow (tomorrow). Steve Stephen L. Doherty Engineering Specialist l City of Clearwater Engineering steve.dohertv?@nlvclearwater. can 727.562.4773 From: Watkins, Sherry Sent: Monday, November 16, 2009 10:30 AM To: Buzzell, William; Chase, Susan; Dougall-Sides, Leslie; DRC Members; Gluski, Roberta; Hollander, Gwen; Hufford, Diane; ]osuns, Sarah; Keller, James; Lutz, Deb; Patni, Himanshu; Reid, Debbie; Rickard, Leonard; Shell Parsons, Heather; Steve Fairchild; US Post Office (E-mail); Vo, Phuong; Yellin, Catherine Subject: RE: Resubmittals for the December 15, 2009 meeting I have placed one copy of the case resubmittal package on the cabinets outside of Room 216 in our office for your review (please do not take it, as we need it for CDB mall out). Please review your comments%conditions for this case in Permit Plan and determine if they are met. Whether the conditions are "met" or still "not met," please affirm to me via email. Please have cases reviewed, if possible by 12PM, November 18. 2009 WEDNESDAY . Thank you Sherry Watkins Administrative Analyst Planning Department 727-562-4582 From: Watkins, Sherry Sent: Monday, November 16, 2009 10:27 AM To: DRC Members Subject: Resubmittals for the December 15, 2009 meeting Importance: High DRC Members, Plans for the following cases have been resubmitted for the December 15, 2009 CDB meeting: LD2009-10037 411 East Shore Drive Planner Scott Kurleman FLD2009-10038 27001 US HWY 19 Planner Matt Jackson a FLD2009-06019 1808 Drew Street Plannerl Dwells E FLD2009-09032 DVA2009-00004 311 S Gulfview Blvd Planner Wayne Wells I have placed one copy of the case resubmittal package on the cabinets outside of Room 216 in our office for your review (please do not take it, as we need it for CDB mail out). Please review your comments/conditions for this case in Permit Plan and determine if they are met. Whether the conditions are "met" or still "not met," please affirm to me via email. Please have cases reviewed, if possible by 12PM, November 18. 2000 Thank you Sherry Watkins Administrative Analyst Planning Department 727-562-4582 • Wells, Wayne From: Watkins, Sherry Sent: Tuesday, November 17, 2009 9:42 AM To: Planning Subject: FW: Resubmittals for the December 15, 2009 meeting Attachments: image002.gif From: Albee, Rick Sent: Monday, November 16, 2009 3:57 PM To: Watkins, Sherry Subject: RE: Resubmittals for the December 15, 2009 meeting No issues on all cases. From: Watkins, Sherry Sent: Monday, November 16, 2009 10:27 AM To: DRC Members Subject: Resubmittals for the December 15, 2009 meeting Importance: High DRC Members, Plans for the following cases have been resubmitted for the December 15, 2009 CDB meeting: LD2009-10037 411 East Shore Drive Planner Scott Kurleman FLD2009-10038 27001 US HWY 19 Planner Matt Jackson FLD2009-06019 1808 Drew Street Planner Wayne Wells FLD2009-09032 DVA2009-00004 311 S Gulfview Blvd Planner Wayne Wells I have placed one copy of the case resubmittal package on the cabinets outside of Room 216 in our office for your review (please do not take it, as we need it for CDB mail out). Please review your comments/conditions for this case in Permit Plan and determine if they are met. Whether the conditions are "met" or still "not met," please affirm to me via email. Please have cases reviewed, if possible by 12PM, November 20. 2009 Thank you Sherry Watkins Administrative Analyst Planning Department 727-562-4582 Wells, Wayne From: Watkins, Sherry Sent: Monday, November 16, 2009 10:30 AM To: Buzzell, William; Chase, Susan; Dougall-Sides, Leslie; DRC Members; Gluski, Roberta; Hollander, Gwen; Hufford, Diane; Josuns, Sarah; Keller, James; Lutz, Deb; Patni, Himanshu; Reid, Debbie; Rickard, Leonard; Shell Parsons, Heather; Steve Fairchild; US Post Office (E- mail); Vo, Phuong; Yellin, Catherine Subject: RE: Resubmittals for the December 15, 2009 meeting Attachments: image002.gif I have placed one copy of the case resubmittal package on the cabinets outside of Room 216 in our office for your review (please do not take it, as we need it for CDB mail out). Please review your comments/conditions for this case in Permit Plan and determine if they are met. Whether the conditions are "met" or still "not met," please affirm to me via email. Please have cases reviewed, if possible by 12PM, November 18. 2009 WEDNESDAY Thank you Sherry Watkins Administrative Analyst Planning Department 727-562-4582 From: Watkins, Sherry Sent: Monday, November 16, 2009 10:27 AM To: DRC Members Subject: Resubmittals for the December 15, 2009 meeting Importance: High DRC Members, Plans for the following cases have been resubmitted for the December 15, 2009 CDB meeting: LD2009-10037 411 East Shore Drive Planner Scott Kurleman FLD2009-10038 27001 US HWY 19 Planner Matt Jackson FLD2009-06019 1808 Drew Street Planner Wayne Wells FLD2009-09032 DVA2009-00004 311 S Gulfview Blvd Planner Wayne Wells I have placed one copy of the case resubmittal package on the cabinets outside of Room 216 in our office for your review (please do not take it, as we need it for CDB mail out). Please review your comments/conditions for this case in Permit Plan and determine if they are met. Whether the conditions are "met" or still "not met," please affirm to me via email. Please have cases reviewed, if possible by 12PM, November 18. 2009 Thank you Sherry Watkins Administrative Analyst Planning Department 727-562-4582 • i Wells, Wayne From: Watkins, Sherry Sent: Monday, November 16, 2009 10:27 AM To: DRC Members Subject: Resubmittals for the December 15, 2009 meeting Attachments: image001.gif Importance: High DRC Members, Plans for the following cases have been resubmitted for the December 15, 2009 CDB meeting: LD2009-10037 411 East Shore Drive Planner Scott Kurleman FLD2009-10038 27001 US HWY 19 Planner Matt Jackson FLD2009-06019 1808 Drew Street Planner Wayne Wells FLD2009-09032 DVA2009-00004 311 S Gulfview Blvd Planner Wayne Wells I have placed one copy of the case resubmittal package on the cabinets outside of Room 216 in our office for your review (please do not take it, as we need it for CDB mail out). Please review your comments/conditions for this case in Permit Plan and determine if they are met. Whether the conditions are "met" or still "not met," please affirm to me via email. Please have cases reviewed, if possible by 12PM, November 20. 2009 Thank you sherry Watkins Administrative Analyst Planning Department 727-562-4582 0 0 Wells, Wayne From: Rice, Scott Sent: Thursday, October 15, 2009 1:35 PM To: Akin, Pam Cc: Wells, Wayne; Quillen, Michael Subject: DVA2009-00004 - SurfStyle Development Agreement Pam, The following conditions have been inserted into Tidemark for the subject development agreement: 1. Damage to Beachwalk or other City infrastructure resulting from construction of the wave wall shall be repaired at the developer's expense. 2. The design and aesthetics"of the wave wall shall be approved by the City prior to the commencement of construction. 3. An easement shall be provided for the sidewalk and the portion of the turn lane along Coronado Drive that are on private.,property. Thanks, D. Scott Rice, P.E. Assistant Engineering Director City of Clearwater (727) 562-4781 0 0 Case Numbers FLD2009-09032 and DVA2009-00004 Attendees for Development Review Committee Meetings: October 1, 2009: City: Wayne Wells, Robert Tefft, Steve Doherty, Elliot Shoberg, Scott Rice, Jim Keller, Pam Akin, Leslie Dougall-Sides, Michael Delk, Tracey Bruch (Consultant - Mark Santos) Applicant: Alex Azan, Rick Marcel, Alex Plisko, Jorge Arbliba, Andy Goulish, Avi Ovakim, Bill Finfrock, Renee Ruggiero November 5, 2009: City: Wayne Wells, Robert Tefft, Steve Doherty, Scott Rice, Jim Keller, Michael Delk, Tracey Bruch (Consultant - Mark Santos) Applicant: Alex Azan, Rick Marcel, Alex Plisko, Jorge Arbliba, Andy Goulish, Avi Ovakim, Bill Finfrock 1:00 pm Case Number: DVA2009-000 - 311 S GULFVIEW BLVD • ??? Owner(s): L O M Inc 4100 N 28th Terr 11. To 0 1 Hollywood, Fl 33020 TELEPHONE: No Phone, FAX: No Fax, E-MAIL: No Email VU. Representative: Keith Zayac & Associates, Inc P.O. Box 1156 Safety Harbor, F134695 TELEPHONE: (727) 793-9888, FAX: (727) 793-9855, E-MAIL: alex@keithzayac.com Location: 0.99 ACRES LOCATED BETWEEN S. GULFVIEW BLVD AND CORONADO DRIVE APPROXIMATELY 200 FEET SOUTH OF THIRD STREET Atlas Page: 276A Zoning District: T, Tourist Request: Review of, and recommendation to the City Council, of a Development Agreement between L.O.M. Inc. (the property owner) and the City of Clearwater. (Related to FLD2009-09032) Proposed Use: Parking garages and lots Neighborhood Clearwater Beach Association Association(s): TELEPHONE: 443-2168, FAX: No Fax, E-MAIL: papamurphy@aol.com Neighborhood Clearwater Neighborhoods Coalition Association(s): TELEPHONE: No Phone, FAX: No Fax, E-MAIL: No Email Presenter: Wayne Wells, Planner III Attendees Included: SEE CASE FILE FOR DRC ATTENDEES FOR THE 10/1/09 AND 11/5/09 MEETINGS. The DRC reviewed this application with the following comments: f ; General Engineering: I . Include a provision in the DVA for the granting of an easement for the sidewalk along Coronado . Drive. DSR 9/17/09 DSR 10/15/09 ;1. Damage to Beachwalk or other City infrastructure resulting from construction of the wave wall shall be repaired at the developer's expense. 2. The design and aesthetics of the wave wall shall be approved by the City prior to the commencement of construction. 3. An easement shall be provided for the sidewalk and the portion of the turn lane along Coronado Drive that are on private property. Environmental: I . No issues. Fire: 1 . No Issues Harbor Master: 1 . No issues. Legal: I . Being reviewed by Pam Akin. Land Resources: No Comments Landscaping: 1 . No issues. Parks and Recreation: No Comments Stormwater: I , No issues Development Review Agenda - Thursday, November 5, 2009 - Page 20 DRC Avion Agenda 1.1 :'? • ! Solid Waste: 1 . No issues. Traffic Engineering: I . No issues. Planning: 1 . 10/29/09 & 9/30/09 - WW Section 2.03(5), line 5 - Revise "waive" to "wave". 2. 10/29/09 & 9/30/09 - WW 7th Whereas, 1st line - Change "mixed use" to "multi-use" as this project does not meet the Code definition of "mixed use". 3. 10/29/09 & 10/1/09 - WW Section 5.03 - Should it be listed in this Section that the Developer is responsible for the construction and maintenance of the "wave dissipating wall"? 4. 10/29/09 & 9/30/09 - WW Section 1.01(2), 3rd line - Unclear why Section 15.18 is underlined. Appears unnecessary. All similar situations in the Development Agreement should have the underlining similarly removed. 5. 10/29/09 & 9/30/09 - WW Section 2.02, line 5 - Revise "Comprehensive Plan" to "Land Development Regulations". 6. '10/29/09 & 9/30/09 -'WW Section 2.01, line 4 - Revise "Comprehensive Plan" to "Land Development Regulations". 7. 10/29/09 & 9/30/09 - WW Section 1.01(29) - Remove "[confirm location]". 8 . 10/29/09 & 9/30/09 - WW Section 1.01(25) - Revise the address to "311 S. Gulfview Boulevard and 320 Coronado Drive". 9. 10/29/09 & 9/30/09 - WW Section 1.01(18) - a. Remove in line I "Land Development Code,"; and b. Add in linen between "Plan" and "and" the term ",Beach by Design". Italicize Beach by ; Design. 10. 10/29/09 & 9/30/09'- WW Section 1.01(11) - Remove "preliminary" from line 1. , . 11 . 10/29/09 & 9/30/09 - WW Section '1.01(4) - Need to include amendments thereto language for Beach by Design. 12. 10/29/09 & 9/23/09 - WW Parks & Recreation comment - The Public Art and Design Impact Fee is due and payable, on this- proje'ct prior to issuance of building permit. This fee could be substantial and it is recommended, that you contact Chris Hubbard at 727-562-4837 to calculate the assessment. 13. 10/29/09 & 9/30/09 - WW Section 5.02(1), line 7 - Need to fill in the "blank" time frame. 14. 10/29/09 & 10/1/09 - WW Exhibit A - Legal Description needs to include that portion of S. Gulfview Boulevard being vacated. 15. Page 1 of the application - Revise the agent's name and address. 16. Affidavit to Authorize Agent - Revise whom is being appointed as agent. 17. Section 2.03(1) - Revise for the following: a. (1) Description of Project - The proposed building is a six-story building, not a five-story building; b. (1) (a) - Correct the square footages for the Commercial Unit to that which is proposed (6,828 square-foot restaurant and 31,421 square feet of retail space); c. (1) (a) - Lines 5-6 - Parking for the commercial unit is on the second floor (there is no ground floor parking); and d. (1) (b) - Parking is on the 2nd through 6th floor (not fifth floor). Other: No Comments Notes: SUFFICIENT - TO BE PLACED ON THE 12/15/09 CDB AGENDA, SUBMIT 15 COLLATED COPIES OF THE REVISED PLANS & APPLICATION MATERIAL ADDRESSING ALL ABOVE DEPARTMENTS' COMMENTS BY NOON, 11/13/09. PACKET S SHALL BE COLLATED, FOLDED AND STAPLED AS APPROPRIATE. Development Review Agenda - Thursday, November 5, 2009 - Page 21 DRC Action Agmda 1.1 • • Wells, Wayne From: Wells, Wayne Sent: Tuesday, October 13, 2009 5:01 PM To: Hersh, Jim Cc: Herman, Jason Subject: Map Request for FLD2009-09032/DVA2009-00004, 311 S. Gulfview Blvd. Jim - Attached is a map request for Cases FLD2008-12033/TDR2005-11028/DVA2008-00002 for the property at 311 S. Gulfview Boulevard. I will bring over the paperwork. The survey you may keep. Thanks- Wayne M. Wells, A/CP Planner III City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756-5520 Phone: 727-562-4504 Fax: 727-562-4865 y iv Map Request Form.docx ; 0 0 Map Request Planner Name: Wayne Wells Case Number: FLD2009-09032/DVA2009-00004 Date Requested: October 12, 2009 Date Requested for (date): October 26, 2009 Maps Requested ® Location Map ® Aerial Map ® Zoning Map ® Existing Surrounding Uses Map Required Documents to be submitted to Engineering ® Legal Description ® Survey ® Map with Proposed Site Highlighted IN ADDITION TO THE REQUESTED MAPS, PLEASE PROVIDE VERIFICATION THAT THE LEGAL DESCRIPTION WE HAVE PROVIDED IS CORRECT AND ACCURATE., Thomas Mahony, PSM, Geographic Technology Manager Signature Map Name Owner: L.O.M. Inc. Cases: FLD2009-09032 D V A2009-00004 Site: 311 S. Gulfview Boulevard and Property Size: 0.99 acre 320 Coronado Drive PIN: 07-29-15-52380-000-0600 Atlas Page: 276A 07-29-15-52380-000-1100 F1004P740 9- 0903z?DV? ??9.00004 P r - --j L . .f ?,Cl?ear??ater 'I PREPARED BY PUBLIC WORKS ADMINISTRATION ENGINEERING I GIS 100 S. Myrtle Ave., Clearwater, FL 73756 Ph.: (727)562-4750, Fax: (727)526-0755 www,MyGloarwat r.com Weez+verneoan d.ra f. n.,Jema Dr m. GN d ea.+..ro. WfJk uud 0 Dy Ja-J 1dvErrp:wa I- r d. rtn mwr ee sccepreJ W 1?r rec4abnl MN unn Imp Nal N. tlpln rocwwd wu w+n,crod a u. p?rw,. dmwcd.p. pnnac sdn.D.?D,n mw.rmn•..e au<n rM cq• d G.er..,w RwuE meAV?m Wamnaat etpnuetl nMdbd. carceminp fM mmd.lsr..a. nrWJN. a runeuey d ve• 0oro rd u.y aawpuecder wa. FunMmvn, rea GN of Georverar PN'A/E nv UebNry wAeYpewr urpt/eled nN Un uaa d r,vsuse a,ppn um.. AN W? p E \llYYY/// mp rpp D mp.er 6 r. ?.. rY P 4 rrt O r re 3 I , - r6fr ?.c . r. , n - .:u y 'xp x' ' R „ j ........ ?? a ,., ... $ aRkyY w . i r . ,ru .. . ar. J j ' ?.. w , E n ..?. ., u , r . , i r e u :. , I e® r „ i , ?• ; F '' - -r '. Luorc _ J ?ev^ J, j j • r- _? 1 L _ _ J ? ?\ 1 a f • ? j J v ' , - ------------ ------------------- r \? 2B5A r . --t P 311 5 6 4to *04 `u..* 4a v er r- - -t Lru) J r¢SreE„ML rRm6R IDR .bw Dmrty PytlpHJ WI -b. 11M1/110.,uty Rml 40R -NMUm OemMRatleraI NReli -WOUm,e{A 0.NryeWr"V ReR .N?ar?YR?tl."W 4pv •ww.Rm„a.n M1 p•EO.MVr R.q, NJprpulrmOCm,wmn e.rnev PW V rfuCae -Irura. E,ura, RJproeno,ecwwrm• W MN q,VSr cOwrERfJK06TPo SPECUL USE e'S1RR15 o. = iRr--1 ..?.b T-m U.. awA _ows ??'R? .aa,J City Owned Property Agreement to Annex o Annexation 0 Deannexation Correction a Rezoning Cru- SUB NUMBER I' - ROe, I. PI.I) , BLOCK NUMBER O SUB PARCEL NUMBER azex PARCEL NUMBER (M&B) LAND HOOK (COMMON OWNERSHIP) PLATTED SUBDIVISION BOUNDARY COUNTY HIGHWAY L/ STATE HIGHWAY / fv t U.S. HIGHWAY Outside City of Clearwater Zoning Atlas Apr 07, 2005 SW 114 or 92-26-16 276A n . ?t • 100 pm Case Number: DVA2009-00-- 311 S GULFVIEW BLVD • F? . Owner(s): L O M Inc 4100 N 28th Terr ?• ' O Hollywood, Fl 33020 TELEPHONE: No Phone, FAX: No Fax, E-MAIL: No Email Representative: Keith Zayac C~ 804, 701 Enterprise Road East Safety Harbor, Fl 34695 TELEPHONE: (727) 793-9888, FAX: (727) 793-9855, E-MAIL: keith@keithzayac.com Location: 0.99 ACRES LOCATED BETWEEN S. GULFVIEW BLVD AND CORONADO DRIVE APPROXIMATELY 200 FEET SOUTH OF THIRD STREET Atlas Page: 276A Zoning District: T, Tourist Request: Review of, and recommendation to the City Council, of a Development Agreement between L.O.M. Inc. (the property owner) and the City of Clearwater. (Related to FLD2009-09032) Proposed Use: Parking garages and lots -:Neighborhood- Clearwater Beach Association : t Association(s): TELEPHONE: 443-2168, FAX: No Fax, E-MAIL: papamurphy@aol.com Neighborhood Clearwater Neighborhoods Coalition Association(s): TELEPHONE: No Phone, FAX: No Fax, E-MAIL: No Email Presenter: Wayne Wells, Planner III- Attendees Included: CITY: WELLS,'TEFFT, DOHERTY, SHOBERG, RICE, KELLER, AKIN, DQUGALL-SIDES, DELK, BRUCH (CONSULT - SANTOS) , APPLICANT: ALEX AZAN, RICK MARCEL; ALEX`PLISKO, JORGE ARBLIBA, ANDY GOULISH,IAVI • ?,.;>,r OVAKIM, BILL FINFROCK, RENEE RUGGIERO The DRC reviewed: this application with the following comments: General Engineering: ' I ' 'Include a provision in the,DVA for the'granting of am'easement for the sidewalk along Coronado Drive. Environmental: 1 . No issues.' Fire: 1 . No Issues Harbor Master: 1 . No issues. Legal: I . Being reviewed by Pam Akin. Land Resources: No Comments Landscaping: 1 . No issues. Parks and Recreation: No Comments Stormwater: I . No issues Solid Waste: 1 . No issues. Traffic Engineering: No Comments Planning: Development Review Agenda - Thursday, October 1, 2009 - Page 36 DRC Anion Agmda I.1 • * I . Parks & Recreatio ent - The Public Art and Design Impact Fc due and payable on this project prior to issuance of building permit. This fee could be substantial and it is recommended that you contact Chris Hubbard at 727-562-4837 to calculate the assessment. 2. Page 1, 7th Whereas, 1st line - Change "mixed use" to "multi-use" as this project does not meet the Code definition of "mixed use". 3 . Page 1, 7th Whereas, 3rd line - Change "at least" to "approximately" in case the number of parking spaces changes (+ or -). 4. Page 2, Section 1.01(2), 3rd line - Unclear why Section 15.18 is underlined. Appears unnecessary. All similar situations in the Development Agreement should have the underlining similarly removed. 5 . Page 2, Section 1.01(4) - Need to include amendments thereto language for Beach by Design. 6. Page 3, Section 1.01(11) - Remove "preliminary" from line 1. 7. Page 3, Section 1.01(18) - a. Remove in line 1 "and Development Code"; and b. Add in line 2 between "Plan" and "and" the term ",Beach by Design". Italicize Beach by Design. 8. Page 4, Section 1.01(25) - Revise the address to "311 S. Gulfview Boulevard". There may be a question whether this project should have a Coronado Drive address, since motorists cannot get .' to this-project from S. Gulfview.Blvd. , ,, ... , 9. Page 4, Section 1.01(29) - Remove "[confirm location]". 10. Page 5, Section 2.01, line 4 - Revise "Comprehensive Plan" to "Land Development Regulations". 11 . Page 5, Section 2.02, line 5 - Revise "Comprehensive Plan" to "Land Development Regulations". 12. Page 5, Section 2.03(l)(a) - a. Ensure the square footage numbers listed are consistent with the square footage numbers being used in the FLD application; and b. There are no parking spaces on the ground level and it is unclear if the 47 spaces for the commercial unit are all on the second floor. Coordinate with the FLD application. 13% . Page 5, Section 2.03(2), line 1 - It is stated that the commercial condominium will be. "two-unit". Should it be limited to only two units? If the restaurant was desired to be sold off separately from . the retail area, or the retail area is,desired to be subdivided and sold off separately, thereby . creating three o'r more'units, this would require this Development Agreement to be modified. .14. Page 6, Section 2.03(5) ,line 5.- Revise "waive" to "wave". 15. Page 9, Section 5.01 - The Developer is currently the owner of the property, but it will be .. t.r condominiumized in'the'future with at least two owners. Language should reflect this current and: ;., future ownership circumstance. 16. Page 9, Section 5.02(l), line 7 - Need to fill in the "blank" time frame. 17. Page 10, Section 5.03 - Should it be listed in this Section that the Developer is responsible for the construction and maintenance of the "wave dissipating wall"? 18. Exhibit A - Legal Description needs to include that portion of S. Gulfview Boulevard being vacated. Other: No Comments Notes: SUFFICIENT; HOWEVER, NEEDS TO TRACK WITH FLD2009-09032 Development Review Agenda - Thursday, October 1, 2009 - Page 37 DRC Action Agmdn I.I F 4 1:00 pm Case Number: DVA2009-000- 311 S GULFVIEW BLVD Owner(s): L O M Inc ? O• ?' O 4100 N 28th Terr Hollywood, 33020 TELEPHONE: No No Phone, FAX: No Fax, E-MAIL: No Email Representative: Keith Zayac 701 Enterprise Road East Safety Harbor, F134695 TELEPHONE: (727) 793-9888, FAX: (727) 793-9855, E-MAIL: keith@keithzayac.com Location: 0.99 ACRES LOCATED BETWEEN S. GULFVIEW BLVD AND CORONADO DRIVE APPROXIMATELY 200 FEET SOUTH OF THIRD STREET Atlas Page: 276A Zoning District: T, Tourist Request: Review of, and recommendation to the City Council, of a Development Agreement between L.O.M. Inc. (the property owner) and the City of Clearwater. (Related to FLD2009-09032) Proposed Use: Parking garages and lots Neighborhood Clearwater Beach Association Association(s): TELEPHONE: 443-2168, FAX: No Fax, E-MAIL: papamurphy@aol.com Neighborhood Clearwater Neighborhoods Coalition Association(s): TELEPHONE: No Phone, FAX: No Fax, E-MAIL: No Email Presenter: Wayne Wells, Planner III Attendees Included: CITY: WAYNE WELLS, ROBERT TEFFT, STEVE DOHERTY, SCOTT RICE, TRACEY BRUCH, JIM KELLER, TOM GLENN APPLICANT: RICHARD MARCEL, ALEX AZAN, ALEX PLISKO, RENEE RUGGIERO The DRC reviewed this application with the following comments: General Engineering: 1 . Include a provision in the DVA for the granting of an easement for the sidewalk along Coronado Drive. Environmental: 1 . No issues. Fire: 1 . No Issues Harbor Master: 1 . No issues. Legal: 1 . Being reviewed by Pam Akin. Land Resources: No Comments Landscaping: 1 . No issues. Parks and Recreation: No Comments Stormwater: 1 . No issues Solid Waste: I . No issues. Traffic Engineering: No Comments Planning: Development Review Agenda - Thursday, October 1, 2009 - Page 35 DRC Action Agmda I. 1 I k i O . Par s & Recreatior ment - The Public Art and Design Impact F ne and payable on this project prior to issuance of building permit. This fee could be substantial and it is recommended that you contact Chris Hubbard at 727-562-4837 to calculate the assessment. 2. Page 1, 7th Whereas, 1st line - Change "mixed use" to "multi-use" as this project does not meet the Code definition of "mixed use". 3. Page 1, 7th Whereas, 3rd line - Change "at least" to "approximately" in case the number of parking spaces changes (+ or -). 4. Page 2, Section 1.01(2), 3rd line - Unclear why Section 15.18 is underlined. Appears unnecessary. All similar situations in the Development Agreement should have the underlining similarly removed. 5 . Page 2, Section 1.01(4) - Need to include amendments thereto language for Beach by Design. 6. Page 3, Section 1.01(11) - Remove "preliminary" from line 1. 7. Page 3, Section 1.01(18) - a. Remove in line 1 "and Development Code"; and b. Add in line 2 between "Plan" and "and" the term ",Beach by Design". Italicize Beach by Design. 8 . Page 4, Section 1.01(25) - Revise the address to "311 S. Gulfview Boulevard". There may be a question whether this project should have a Coronado Drive address, since motorists cannot get to this project from S. Gulfview Blvd. 9. Page 4, Section 1.01(29) - Remove "[confirm location]". 10. Page 5, Section 2.01, line 4 - Revise "Comprehensive Plan" to "Land Development Regulations". 11 . Page 5, Section 2.02, line 5 - Revise "Comprehensive Plan" to "Land Development Regulations". 12. Page 5, Section 2.03(1)(a) - a. Ensure the square footage numbers listed are consistent with the square footage numbers being used in the FLD application; and b. There are no parking spaces on the ground level and it is unclear if the 47 spaces for the commercial unit are all on the second floor. Coordinate with the FLD application. 13. Page 5, Section 2.03(2), line I- It is °stated that the commercial condominium will be "two-unit". Should it be limited to only two units? If the restaurant was desired to be sold off separately from the retail area, or the. retail area is desired to,be.subdivided and sold off separately, thereby creating three or, more units, this would require. this Development Agreement to be modified. 14. Page 6, Section 2.03(5), line 5 - Revise "waive" to "wave". 15. Page 9, Section 5.01 - The Developer-i& currently, the owner of the. property, but it will be condominiumized in the future with at least two owners. Language should reflect this current and future ownership circumstance. 16. Page 9, Section 5.02(1), line 7 - Need to fill in the "blank" time frame. 17. Page 10, Section 5.03 - Should it be listed in this Section that the Developer is responsible for the construction and maintenance of the "wave dissipating wall"? 18. Exhibit A - Legal Description needs to include that portion of S. Gulfview Boulevard being vacated. Other: No Comments Notes: SUFFICIENT; HOWEVER, NEEDS TO TRACK WITH FLD2009-09032 Development Review Agenda - Thursday, October 1, 2009 - Page 36 DRC Aai- Ag.W. L I iJ '* Wells, Wayne From: Akin, Pam Sent: Friday, September 25, 2009 11:22 AM To: Wells, Wayne Cc: Dougall-Sides, Leslie Subject: RE: GM08-92166-015: RE: DVA2009-00004, 311 S. Gulfview Blvd. When the draft development Agreement is submitted to meet the dead line, we do not stop negotiations. That process is continuous and iterative, especially y when as in this case, an incomplete document is submitted. The applicants attorney will not get confused. if there are conflicting comments we will resolve them. From: Wells, Wayne Sent: Tuesday, September 22, 2009 3:07 PM To: Akin, Pam Cc: Dougall-Sides, Leslie Subject: GM08-9216B-015: RE: DVA2009-00004, 311 S. Gulfview Blvd. All DRC members are reviewing the draft submitted at time of application. DRC comments are based on this initial submission. If you have a new iteration, you are one iteration ahead of everyone else. Don't know if the applicant will get confused or if DRC comments conflict with your comments on the first iteration. From: Akin, Pam Sent: Tuesday, September 22, 2009 2:57 PM To: Wells, Wayne Cc: Dougall-Sides, Leslie - Subject: GM08-9216B-015: RE: DVA2009-00004, 311 S. Gulfview Blvd. Wayne, I don't have any "comments" to the development agreement. I do have a new iteration , which like the draft submitted is not yet complete. A number of the exhibits have not yet been submitted. I will forward you the current working version with the changes marked. From: Wells, Wayne Sent: Tuesday, September 22, 2009 2:13 PM To: Akin, Pam Cc: Dougall-Sides, Leslie Subject: DVA2009-00004, 311 S. Gulfview Blvd. Pam - I understand that you are reviewing the Development Agreement for the Surf Style (Britts) property for the parking garage. Draft comments are due in Permit Plan tomorrow, so that we can have a pre-DRC meeting on Thursday to go over comments from the various DRC reviewers prior to sending the draft DRC comments to the applicant (most likely on this next Monday). Do you have any comments on the submitted Development Agreement? If you do, if necessary, I can put them into Permit Plan for you so they will show on the DRC action agenda. I would need any comments by end of the day tomorrow (Wednesday). Thanks. Wayne M. Wells, AICP Planner III City of Clearwater 100 South Myrtle Avenue Clearwater, FL 33756-5520 Phone: 727-562-4504 Fax: 727-562-4865 0 Property Appraiser General Info r,tion Page 1 of 5 Into. rac hvg_it1ap of,this Spies 131c1 to Query \?ew Tax_C Collector Home Qu_stioa.C onnnen about_this. parcel Query Results Search P...a?e Nae 07-29-15-52380-000-0600 Portabilityr Data Current as of August 31, 2009 Improvcnient_Va1i Calculator [2:05 pm Sunday September 6] Pt'nt per F.S. 553.844 Ownership/Mailing Address Site Address (First Building) L O M INC 311 GULFVIEW BLVD CLEARWATER 33767 4100 N 28TH TERR rte l HOLLYWOOD FL 33020- Jum to building: .? 1116 (1) 311 GULFVIEW BLVD CLEARWATER 33767 ?..... - _?. _.?. ?..T ?.. z? Property-Use . 1120 (Single Building Store - free standing (not Living Units: 0 otherwise described) laundromat, produce shop, rental equ) [click here to hide] Legal Description LLOYD-WHITE-SKINNER SUB LOTS 60, 61, 62,108 & 109 AND S'LY 1/2 OF LOT 107 2009_ Exemptions Homestead: No Save-Our-Homes Cap Percentage: 0.00% Non-Homestead..,10% Cap: Yes Government: No Institutional: No Agricultural: $0 Historic: $0 2009 Parcel Information 2009 Trim Notice . Most Recent Conveyance Sales Comp arison. Cen s-us - Traci 1 plat•Book/Page, 09144/1151 Sales uerv 121030260023 013/012 2009 Value Information (PRELIMINARY) Save-Our- Just/Market Assessed Value! County_ School Municipal Year Homes Cap Value SOH C:ap Taxable Value Taxable Value Taxable Value 2009 No $3,300,000 $3,300,000 $3,300,000 $3,300,000 $3,300,000 [click here to hide] Value History Save-Our- Year Homes Cap 2008 No 2007 No 2006 No 2005 No 2004 No 2003 No 2002 No 2001 No 2000 No 1999 No 1998 No 1997 No 1996 No JustiMarket Assessed Value,/ Value SOH Carp $4,100,000 $4,100,000 $4,410,000 $4,410,000 $4,120,000 $4,120,000 $3,000,000 $3,000,000 $2,500,000 $2,500,000 $2,050,000 $2,050,000 $1,787,300 $1,787,300 $1,672,200 $1,672,200 $1,619,200 $1,619,200 $1,602,400 $1,602,400 $1,058,900 $1,058,900 $196,400 $196,400 $237,000 $237,000 County Taxable Value $4,100,000 $4,410,000 $4,120,000 $3,000,000 $2,500,000 $2,050,000 $1,787,300 $1,672,200 $1,619,200 $1,602,400 $1,058,900 $196,400 $237,000 School Taxable Value $4,100,000 N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A Municipal Taxable Value $4,100,000 $4,410,000 $4,120,000 $3,000,000 $2,500,000 $2,050,000 $1,787,300 $1,672,200 N/A N/A N/A N/A N/A http://www.pcpao.org/general.php?pn=152907523800000600&sn=0&idTool=true&aerFlag... 9/6/2009 Property Appraiser General Info tion ® Page 2 of 5 i 2008 Tax Information Ranked Sales See all transactions Current Tax Bill Tax District: Sale Date Book/Page Price Q41. V/1 C«` 25 Oct 1995 09144/1151 $1,950,000 U I Total Millage: 20.3578 1979 04817/0911 $105,000 U Non Advalorem $0.00 Assessments: Taxes: $83,466.98 Taxes without any $83,466.98 exemptions: A significant change in taxable value may occur when sold due to changes in the market or the removal of exemptions. Click here for more information. Land Information Seawall: No Frontage: None View: Land Use Land Size Unit Value Units Method Stores, 1 Story (11) 180x110 85.00 19800.0000 SF Stores, 1 Story (11) 125x100 85.00 12500.0000 SF [click here to hide] Building 1 Structural Elements Back-lo-Top Site Address: 311 GULFVIEW BLVD CLEARWATER 33767 http://www.pcpao.org/general.php?pn=152907523800000600&sn=0&idTool=true&aerFlag... 9/6/2009 Property Appraiser General Infobtion is Page 3 of 5 Quality: Average Recreation: Foundaton: Spread/Mono Footing Floor System: Masonry Pil/Stl Exterior Wall: Concrete Blk/Stucco Roof Frame: Bar Joint/Rigid Frame Roof Cover: Blt Up Metal/Gypsum Stories: 1 Floor Finish: Carpet Combination Interior Finish: Dry Wall Fixtures: 7 Year Built: 1997 Effective Age: 11 Cooling: Heat & Oven _plot_in New Window Cooling Pkg Building 1 Sub Area Information Description Building Finished Ft? Gross Area FO Base 7,056 7,056 Open Porch 0 72 Total Building finished SF: 7,056 Total Gross SF: 7,128 Factor..; ..Effective Ft2 1.00 7,056 0.31 22 Total Effective SF: 7,078 [click here to hide] Building 2 Structural Elements Back_to._.Top Site Address: 309 GULFVIEW BLVD CLEARWATER 33767 Quality: Average Recreation: Foundaton: Spread/Mono Footing Floor System: Masonry Pil/Stl Exterior Wall: Concrete Blk/Stucco Roof Frame: Bar Joint/Rigid Frame Roof Cover: Blt Up Metal/Gypsum Stories: 2 http://www.pcpao.org/general.php?pn=152907523800000600&sn=0&idTool=true&aerFlag... 9/6/2009 Property Appraiser General Info ion Page 4 of 5 i Floor Finish: Carpet Combination Interior Finish: Panel Gplast D Wall Fixtures: 20 Year Built: 1997 Effective Age: 11 Cooling: Heat & Cooling Pkg 2"---] BtiF rs Lj Open plot in New Window Building 2 Sub Area Information Description I3u,ild.ing Finished Ft- Gross A ea. Ft' Factor. Effective Ft2 Base 5,616 5,616 1.00 5,616 Base Semi-finished 352 352 0.85 299 Open Porch 0 88 0.30 26 Total Building finished SF: 5,968 Total Gross SF: 6,056 Total Effective SF: 5,941 [click here to hide] Extra Features Description Dimensions Value/Unit Units Total NewValue Depreciated Value Year ASPHALT 6500 $1.75 6,500.00 $11,375.00 $11,375.00 0 ELEV PASS 1 $30,000.00 1.00 $30,000.00 $19,500.00 1997 click here to hide Permit Data Permit information is received from the County and Cities. This data may be incomplete and may exclude permits that do not result in field reviews (for example for water heater replacement permits). Any questions regarding permits should be directed to the permitting office in which the structure is located. Permit Number Description Issue Date Estimated Value BCP2009-03335 HEAT/AIR 17 Mar 2009 $7,400 200609070 HEAT/AIR 24 Oct 2006 $11,900 200608072 ROOF 28 Sep 2006 $15,000 200605031 HEAT/AIR 26 Jun 2006 $13,631 200508221 HEAT/AIR 28 Se 2005 $7,500 199912305 CANOPY 12 Se 2000 F $15,000 http://www.pcpao.org/general.php?pn=152907523800000600&sn=0&idTool=true&aerFlag... 9/6/2009 tion Page 5 of 5 Property Appraiser General Info to 0 9120043 NEW COMMERCIAL 06 May 1997 $329,813 96120049 NEW COMMERCIAL 11 06 May 1997 $382,476 Radius ------ _ - - Aerials: 2009 Color (feet):696 ' ?--------------- Transparency: c If you do not see map, the SVG viewer has not been installed. Click here for information and installation. How to copy and paste a static map using Internet Explorer: Right-click on the map; Select "Copy SVG"; Open a Word c Special" from Edit menu on toolbar; Select Bitmap, then OK How to copy and paste a static map using Mozilla Firefox: Right-click on the map; Select "This Frame"; Select "Open Fra from the new window. Click here for I»teractive_ _Map_ hiteiactive._itlap o thi..s. Sales Ba_cl? toQuei}. _ eXy Tax._ _Collectoi Ronne Question-Comment about-this . parcel Query Results Search pale page http://www.pcpao.org/general.php?pn=152907523800000600&sn=0&idTool=true&aerFlag... 9/6/2009 t• Welcome to VDB on the Web C? ?W? I?7t?l: E t?' i Identify To at Aerial Photography: 2009 Color Transparency (0.0- ln 1.0 Theme Description his is the default set. It has no data layers, just linework. All of the map layers are black. http://vdb.pcpao.org/vdb.php • Page 1 of 1 x } _ i +f IN z z t i1 9/6/2009 Prroperty Appraiser General Infotion Page 1 of 4 C 0 0 Interactive Mai) of this. Sales R.ac>t to.Quely New T...a? Collector Ho?n,e Questz0 onlment about this parcel Query Results. Search Page pale 07-29-15-52380-000-1100 Portability. Data Current as of August 31, 2009 Improvement_Value. Calculator [2:04 pm Sunday September 6] Pt_int per F.S. 553.844 Ownership/Mailing Address I F- Site Address L O M INC 320 CORONADO DR CLEARWATER 4100 N 28TH TER HOLLYWOOD FL 33020-1116 33767 Property. Vs_e:. 0110 (Single Family Home) Living Units: 1 [click here to hide] Legal Description LLOYD-WHITE-SKINNER SUB LOT 110 2009 Exemptions Homestead: No Save-Our-Homes Cap Percentage: 0.00% Non-Homestead 10% Cap: Yes Government: No Institutional: No Agricultural: $0 Historic: $0. , 2009 Parcel Information 2009 Trim Notice Most Recent Conveyance Sales Comparison Census Tract 11 Plat Book/Pa e,,; 14759/0315 $446 300 Sales Query 121030260023 013/012 Year 2009 Save-Our- Homes Cap No 2009 Value Information Just/Market Assessed Value/ Value SOH Cap $355,162 $355,162 (PRELIMINARY) County School Taxable Value Taxable Value $355,162 $355,162 M;umcipal Taxable Value $355,162;,,,.: . [click here to hide] Value History Year Save-Our- Just/Market Assessed -Value/ County. School Municipal Homes Cap Value SOH Cap Taxable Value Taxable Value Taxable Value 2008 No $477,600 $477,600 $477,600 $477,600 $477,600 2007 No $545,400 $545,400 $545,400 N/A $545,400 2006 No $659,100 $659,100 $659,100 N/A $659,100 2005 No $324,500 $324,500 $324,500 N/A $324,500 2004 No $209,400 $209,400 $209,400 N/A $209,400 2003 No $184,500 $184,500 $184,500 N/A $184,500 2002 No $160,300 $160,300 $160,300 N/A $160,300 2001 No $159,300 $159,300 $159,300 N/A $159,300 2000 No $144,300 $144,300 $144,300 N/A N/A 1999 No $129,500 $129,500 $129,500 N/A N/A 1998 No $130,900 $130,900 $130,900 N/A N/A 1997 No $127,600 $127,600 $127,600 N/A N/A 1996 No $115,900 $115,900 $115,900 N/A N/A 2008 Tax Information Ranked Sales See all transactions http://www.pcpao.org/general.php?strap=152907523800001100 9/6/2009 0 Property Appraiser General Inf?ation Current Tax Bill Tax District: CW Total Millage: 20.3578 Non Advalorem Assessments: $0.00 Taxes: $9,722.89 Taxes without any $9,722.89 exemptions: A significant change in taxable value may occur when sold due to changes in the market or the removal of exemptions. C..I..ic..k......here.fo...r,...m.o..re. information. • Page 2 of 4 Sale Date Book/Page Price _Q V/I 23 Nov 2005 14759 / 0315 $775,000 U I 1975 04353 / 1958 $55,000 Q 1971 03642 / 0550 $43,500 Q Land Information Seawall: No Frontage: None View: Land Use Land Size Unit Value Units . Method Single Family (01) 50x100 70.00 5000.0000 SF [click here to hide] Building 1 Structural Elements Back_to_Tol? Site Address: 320 CORONADO DR CLEARWATER 33767 Quality: Average Recreation: Foundaton: = =' Continuous Footing Floor System: Slab On Grade Exterior Wall: Cb Stucco/Cb Reclad Roof Frame: Gable/Hip Roof Cover: Composition Shingle Stories: 1 Floor Finish: Carpet/ Vinyl/Asphalt Interior Finish: Drywall/Plaster Fixtures: 9 Year Built: 1951 Effective Age: 36 Heating: Central Duct Cooling: Cooling (Central) Open plot in New Window Building 1 Sub Area Information Description Living 4....rea Ft2 Gross Area Ft2 Factor Base 1,466 1,466 1.00 Effective FtZ 1,466 http://www.pcpao.org/general.php?strap=152907523800001100 9/6/2009 Property Appraiser General Inf?ation Page 3 of 4 Ca..rpioj-t 0 280 0.25 70 Open. orch. 0 45 0.20 9 Utili_ty_ 0 16 0.38 6 Total Living SF: 1,466 Total Gross SF: 1,807 Total Effective SF: 1,551 [click here to hide] Extra Features Description Dimensions Value/Unit Units Total NewValue Depreciated Value Year No Extra Features on Record [click here to hide] Permit Data Permit information is received from the County and Cities. This data may be incomplete and may exclude permits that do not result in field reviews (for example for water heater replacement permits). Any questions regarding permits should be directed to the permitting office in which the structure is located. Permit Number Descri tion Issue Date Estimated Value No Permit Data Found .au?u? 2009 Color erials: r ransparency: 0.5 feet):3?7 A -71 IT - f you do not see map, the SVG viewer has not been installed Click here. for Information and installation. iow to copy and paste a static map using Internet Explorer: Right-click on the map; Select,."Copy SVG"; Open.a Word ( pecial" from Edit menu on toolbar; Select Bitmap, then OK low to copy and paste a static map using Mozilla Firefox: Right-click on the map; Select "This Frame"; Select ",Open Fra rom the new window. Click here for Interactive Mal? http://www.pcpao.org/general.php?strap=152907523800001100 9/6/2009 %Velcome to VDB on the Web ta. Irf m `- rte. gas ,?? ff.?, 1 ?, r SOM t r 3j 1 '" ft _ Zaam Toa! Aerial Photography: 2009 Color Transparency (0.0-r--,--- II . Theme Description II is the default set. It has no data s, just linework. All of the map s are black. Page 1 of 1 0 , 16' R i. C #? 3y f T A' 7t d http://vdb.pcpao.org/vdb.php 9/6/2009 • This instrument prepared by, or under the supervision of (and after recording, return to): Nancy Lash, Esq. Greenberg Traurig, P.A. 1221 Brickell Avenue Miami, Florida 33131 AGREEMENT FOR DEVELOPMENT OF PROPERTY IN THE CITY OF CLEARWATER (SURF STYLE CONDOMINIUM PROJECT) between THE CITY OF CLEARWATER, FLORIDA and L.O.M., INC. Dated as of February 18, 2010 KEN BURKE, CLERK OF COURT PINELLAS COUNTY FLORIDA INST# 2010047930 02/22l'1010 at 04:01 PM OFF REC BK: 16836 PG: 1817-2002 DocType:GOV RECORDING: $1582.50 v8 MIA 180,825,646-'. 0 0 Table Of Contents Article 1. DEFINITIONS ................................................................................................2 1.01 Definitions .........................................................................................................2 1.02 Use of Words and Phrases ...............................................................................5 1.03 Florida Statutes .................................................................................................5 Article 2. PURPOSE AND DESCRIPTION OF PROJECT ............................................5 2.01 Finding of Public Purpose and Benefit ..............................................................5 2.02 Purpose of Agreement ......................................................................................5 2.03 Scope of the Project ..........................................................................................5 2.04 Cooperation of the Parties .................................................................................8 Article 3. REGULATORY PROCESS ............................................................................8 3.01 Land Development Regulations ........................................................................8 3.02 Development Approvals and Permits ................................................................8 3.03 Concurrency ....................................................................................................10 Article 4. PLANS AND SPECIFICATIONS ..................................................................10 4.01 Plans and Specifications .................................................................................10 Article 5. PROJECT DEVELOPMENT ........................................................................11 5.01 Ownership of Property .....................................................................................11 5.02 City's Obligations .............................................................................................11 5.03 Obligations of the Developer ...........................................................................12 Article 6. PROJECT FINANCING ...............................................................................12 6.01 Financing .........................................................................................................12 6.02 Notice of Project Financing to City ..................................................................13 6.03 Copy of Default Notice to City .........................................................................13 Article 7. INDEMNIFICATION .....................................................................................15 7.01 Indemnification by the Developer ....................................................................15 7.02 Indemnification by the City ..............................................................................16 7.03 Limitation of Indemnification ............................................................................16 Article 8. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DEVELOPER ...............................................................................................17 8.01 Representations and Warranties .....................................................................17 8.02 Covenants .......................................................................................................18 Article 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CITY ............................................................................................................20 9.01 Representations and Warranties .....................................................................20 v8 MIA 180,825,646 • • 9.02 Covenants .......................................................................................................21 Article 10. CONDITIONS PRECEDENT .......................................................................21 10.01 Construction of Project ............................................................ ..................21 10.02 Responsibilities of the Parties for Conditions Precedent .................................22 Article 11. DEFAULT; TERMINATION ..........................................................................22 11.01 Project Default by the Developer .....................................................................22 11.02 Default by the City ...........................................................................................24 11.03 Obligations, Rights and Remedies Cumulative ...............................................25 11.04 Non-Action on Failure to Observe Provisions of this Agreement ..................... 25 11.05 Termination .....................................................................................................25 11.06 Termination Certificate ....................................................................................26 Article 12. ARBITRATION ............................................................................................27 12.01 Agreement to Arbitrate ....................................................................................27 12.02 Appointment of Arbitrators ...............................................................................27 12.03 General Procedures ........................................................................................28 12.04 Majority Rule ...................................................................................................29 12.05 Replacement of Arbitrator ...............................................................................29 12.06 Decision of Arbitrators .....................................................................................29 12.07 Expense of Arbitration .....................................................................................29 12.08 Accelerated Arbitration ....................................................................................30 12.09 Applicable Law ................................................................................................ 30 12.10 Arbitration Proceedings and Records ..............................................................30 Article 13. UNAVOIDABLE DELAY ...............................................................................31 13.01 Unavoidable Delay ..........................................................................................31 Article 14. FIRE OR OTHER CASUALTY; CONDEMNATION .....................................32 14.01 Loss or Damage to Project ..............................................................................32 14.02 Partial Loss or Damage to Project ...................................................................33 14.03 Project Insurance Proceeds ............................................................................33 14.04 Notice of Loss or Damage to Project ...............................................................33 14.05 Condemnation of Project or Property; Application of Proceeds ....................... 33 Article 15. MISCELLANEOUS ......................................................................................34 15.01 Assignments ....................................................................................................34 15.02 Successors and Assigns .................................................................................35 15.03 Notices ............................................................................................................35 15.04 Applicable Law and Construction ....................................................................36 15.05 Venue; Submission to Jurisdiction ...................................................................36 15.06 Estoppel Certificates .......................................................................................36 15.07 Complete Agreement; Amendments ...............................................................37 15.08 Captions ............................................................................. .................. 37 15.09 Holidays ..........................................................................................................37 V8 MIA 180,825,646 15.10 Exhibits ............................................................................................................37 15.11 No Brokers ......................................................................................................37 15.12 Not an Agent of City ........................................................................................ 37 15.13 Memorandum of Development Agreement ......................................................38 15.14 Public Purpose ................................................................................................38 15.15 No General Obligation .....................................................................................38 15.16 Other Requirements of State Law ...................................................................38 15.17 Technical Amendments ...................................................................................38 15.18 Term; Expiration; Certificate ............................................................................39 15.19 Approvals Not Unreasonably Withheld ............................................................39 15.20 Waiver of Jury Trial .........................................................................................39 15.21 Effective Date ..................................................................................................40 EXHIBITS Legal Description of Property ......................................................................................... A Conceptual Plans for Proiect ........................................................................................... B Right-of-Way Area to be Vacated ................................................................................... C Form of Condominium Documents ................................................................................. D Public Parking Covenant ................................................................................................ E Intentionally Omitted ........................................................................................................F Sidewalk and Turn-Lane Easement ................................................................................ G List of Required Permits and Approvals .......................................................................... H Project Development Schedule ........................................................................................I City Parking Garage Standards ....................................................................................... J Parking Structure Maintenance Standards ..................................................................... K "PUT" Agreement Form ................................................................................................... L v8 MIA 180, 825,646 0 0 AGREEMENT FOR DEVELOPMENT OF PROPERTY (SURF STYLE CONDOMINIUM PROJECT) This Agreement for Development of Property (Surf Style Condominium Project) (the "Agreement") is made as of this 18th day of February, 2010, by and between THE CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation (the "gjy ), and L.O.M., Inc., a Florida corporation (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 construction of Beach Walk and the removal and replacement of surface parking spaces located to the west of South Gulfview Boulevard 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, the City desires to encourage and provide for the construction of 300 public parking spaces; WHEREAS, the Developer proposes to develop a multi-use project on certain real property located on South Gulfview Boulevard and legally described in Exhibit A attached hereto (the "Pro a "), and has proposed to include approximately three hundred and forty nine (349) parking spaces in the project, of which three hundred (300) spaces shall be open to the public; WHEREAS, it is necessary that the City take certain actions in order to make it possible for the Developer to develop the Property 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; 1 0 9 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 February 18, 2010, the City Council approved this Agreement and authorized and directed its execution by the appropriate officials of the City; and WHEREAS, the shareholders and/or directors (as appropriate) of the Developer have approved this Agreement and have authorized by corporate resolution 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. For purposes of this Agreement, the following terms defined in this Article 1 shall have the meanings attributed to them below except as herein otherwise expressly provided: (1) "Agreement" means this Agreement for Development of Property (Surf Style Condominium Project), including any Exhibits and any amendments thereto. (2) "Agreement Expiration Certificate" means the certificate confirming the completion of all obligations under this Agreement and expiration of the term of this Agreement required under Section 15.18, upon the request of either party. (3) "Applicable Laws" means any law, enactment, statute, code, ordinance, administrative order, charter, tariff, resolution, order, rule, regulation, guideline, judgment, decree, writ, injunction, franchise, permit, certificate, license, authorization, or other direction or requirement of any Governmental Authority, political subdivision, or any division or department thereof, now existing or hereafter enacted, adopted, promulgated, entered, or issued. (4) "Beach by Design" or "Plan" means the strategic redevelopment plan for Clearwater Beach dated 2001 which was adopted by the City Council pursuant to the provisions of the Pinellas County Planning Councils Rules for the designation of a Community Redevelopment District, as amended. (5) "Break Wall" shall have the meaning given to it in Section 2.03(4). (6) "Break Wall Easement" means that certain Construction, Access and ,,"Maintenance Easement Agreement by and between the City and the Developer dated December 17, 2009 and recorded January 29, 2010 in 2 0 0 Official Records Book 16817, Page 1071 of the Public Records of Pinellas County, Florida. (7) "Cy" means the City of Clearwater, Florida, a Florida municipal corporation. (8) "City Council" means the governing body of the City. (9) "City Parking Garage Standards" means the City's standards for the construction of City-owned public parking facilities, which standards are attached hereto as Exhibit J. (10) "Commencement Date" means the date on which Developer commences or causes a contractor to commence construction (see Section 5.03(4)), which date shall occur on or before September 30, 2010. (11) "Completion Date" means the date on which a conditional or final certificate of occupancy required for the Project is issued, which date shall be no later than twenty-four (24) months following the Commencement Date. (12) "Conceptual Plans" means the conceptual plans for the Project approved by the parties attached hereto as Exhibit B. (13) "Developer" means, for the purposes of this Agreement, L.O.M., Inc., a Florida corporation and its successors and assigns as provided in Article 15. (14) "Effective Date" means the date of approval and final execution of the Agreement by the parties. (15) "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 Agreement_ (16) "Expiration Date" means the date which is five (5) years following the Completion Date. (17) "Flood Zone Change" shall have the meaning given to it in Section 2.03(4). (18) "Governmental Authority" means any federal, state, county, municipal or other governmental entity or any instrumentality of any of them, having jurisdiction over the Project. 3 0 0 (19) "Land Development Regulations" means the Community Development Code, Comprehensive Plan, Beach by Design and related regulations applicable to the development of the Project in the City of Clearwater. (20) "Parking Unit" shall have the meaning given to it in Section 2.03(1). (21) "Permits" means all land development approvals, permits and consents required to be granted, awarded, issued, or given by any Governmental Authority under any Applicable Laws in order for construction of the Project, or any part thereof, to commence, continue or be completed. The term Permits shall include FEMA's approval of the Flood Zone Change. (22) "Plans and Specifications" means the site plan for the Project to be filed with the City as required by the Land Development Regulations for the purpose of review and approval. (23) "Project" means, generally, the development and construction of a 41,070+/- square foot retail/commercial project with 49 parking spaces, and a commercial parking garage containing 300 parking spaces open to the public, as described in Section 2.03(1) of this Agreement. The Project will consist of the Retail Unit(s) and the Parking Unit, as more particularly described in this Agreement. (24) "Project Financing" shall have the meaning given to it in Section 6.01 (25) "Project Lender" shall have the meaning given to it in Section 6.01. (26) "Pry" means that certain property located at 311 S. Gulf View Boulevard and 320 Coronado Drive, Clearwater, FL 33767, which is owned by the Developer or an affiliate or nominee on the Effective Date of this Agreement see Section 5.01), which Property is more particularly described in the legal description attached as Exhibit A to this Agreement. (27) "Put Agreement" shall have the meaning given to it in Section 6.01. (28) "Retail Unit(s)" shall have the meaning given to it in Section 2.03(1). (29) "Termination Date" means the date a termination certificate is issued pursuant to Article 11. (30) "Unavoidable Delay" means a delay as described in Article 13 hereof. (31) "Vacation of Right-of-Way' means the abandonment of the eastern half of the existing right-of-way of South Gulfview Boulevard (approximately 35' in width) adjacent to the Property by the City, in order that the goals and objectives of the Comprehensive Plan may be better accomplished. The 35' right-of-way area proposed to be vacated is graphically depicted in Exhibit C attached hereto. 4 • 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 (2009), as amended from time to time. ARTICLE 2. PURPOSE AND DESCRIPTION OF PROJECT. 2.01 Finding of Public Purpose and Benefit. The proposed Project, and the design, construction, completion and operation' of the Project, and each part thereof, is hereby found by the City: (1) to be consistent with and in furtherance of the objectives of the Land Development Regulations of the City of Clearwater, (2) to conform to the provisions of Applicable Laws, (3) to be in the best interests of the citizens of the City, (4) to further the purposes and objectives of the City, (5) to further the public interest on Clearwater Beach, and (6) to implement Beach by Design for South Gulfiriew Boulevard. 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 Property and increase the available public parking, all to enhance the quality of life and improve the aesthetic and useful enjoyment of Clearwater Beach and the City, all in accordance with and in furtherance of the Land Development Regulations of the City of Clearwater and as authorized by and in accordance with the provisions of Applicable Laws. 2.03 Scope of the Project. (1) Description of Project. The Project shall include a commercial parking garage, private parking, commercial and retail uses and appropriate accessory uses and shall be developed in substantial conformity with the Conceptual Plans. The Project shall consist of a six-story commercial building on the Property comprised of the following: (a) Retail Unit(s): 41,070+/- square foot retail/commercial unit(s) on the ground floor of the building consisting of approximately 34,183 square feet of retail space and 6,887 square feet of restaurant space, together with a delivery area and approximately 49 parking spaces on the second floor of the building (collectively, the "Retail Units "). Notwithstanding the designation of a portion of the Project as a "Retail Unit", the name alone shall not restrict its use, as the Retail Unit(s) may be used for any lawful purpose. 5 • Eli (b) Parkine _U_nit: 300 parking spaces located on the 2nd through 6th floors of the building (the "Parkin Unit"). (2) Formation of Condominium. The Developer shall create a three-unit commercial condominium for the Project consisting of the above- described Parking Unit and two (2) Retail Units, one of which will include approximately 6,887 square feet of restaurant space and the other of which will include the remainder of the Retail Unit as described above (i.e., approximately 34,183 square feet of retail space, 49 parking spaces and the delivery area). Accordingly, no later than the Completion Date, the Developer shall submit the Property to the condominium form of ownership pursuant Chapter 718 of the Florida Statutes and condominium documents in substantially the form attached hereto as Exhibit D, with a consent or joinder from any then existing Project Lender having any record interest in any mortgage encumbering the interest in the Property as required by Section 71.8.104(3) of the Florida Statutes. The condominium documents shall not be materially modified or amended prior to the expiration or earlier termination of the Put Agreement without the prior written consent of the City, which consent shall not be unreasonably withheld. (3) Parking Covenant. No later than the Completion Date, the Developer shall execute, deliver and record a covenant against the Property in the Public Records of Pinellas County, Florida, which covenant shall require that the Project and any future development on the Property include 300 parking spaces available for public parking to the extent permitted by Applicable Laws, provided that the City (and/or any other applicable Governmental Authority) issues a license or permit (as required by Applicable Law) to the then fee owner of the Property and/or the Parking Unit, as applicable (or its designated parking operator) to operate such parking spaces. The requirement for public parking shall apply to the Project and future developments on the property from the date of the certificate of occupancy for the Project and such future developments (as applicable) for the duration of existence of the improvements covered by such certificate of occupancy. The foregoing parking covenant shall be (i) in substantially the form of the covenant attached to this Agreement as Exhibit E, (ii) recorded prior to the condominium documents under Section 2.03(2) above, (iii) executed by the Developer, and (iv) joined in and consented to by all lien holders and any other person or entity with an interest in the Property superior to and with priority over the Parking Covenant, pursuant to a joinder and consent that makes the Parking Covenant a valid, binding, permanent and superior restrictive covenant against the Property (subject to the terms thereof). The joinder and consent from any then existing Project Lender holding a mortgage against the Property shall be substantially in the form attached to the Parking Covenant as Exhibit E. 6 (4) FEMA Map Revision: The parties hereto acknowledge and agree that the Developer is currently processing a letter of map revision with FEMA to change the flood zone for the Property from VE to AE (the "Flood Zone Change"). The City agrees to cooperate with the Developer and FEMA requirements in order to accomplish the Flood Zone Change. Specifically, the City will (a) comply with any requirement for the construction and on- going maintenance of a so-called "wave dissipating wall" (the "Break Wall") on the City property lying west of the Property to the east of Gulfview Boulevard along the promenade, (b) as the fee owner of the property upon which the Break Wall will be constructed, submit the letter of map revision to FEMA supporting the Flood Zone Change, (c) advertise the Flood Zone Change as required by Applicable Law, (d) in conjunction with LOM, process the Flood Zone Change in accordance with the requirements set forth by FEMA in its Conditional Letter of Map Revision, and (e) comply with all other obligations of the City under that certain (i) letter agreement dated December 17, 2009 regarding the Break Wall, and (ii) the Break Wall Easement. The Developer will be responsible for and pay all costs associated with the Flood Zone Change, including the cost of construction and on-going maintenance and repair of the Break Wall, unless the cost of maintenance and repair is allocated to the City under the Break Wall Easement. (5) Maintenance Easement: The City has provided the Developer with an easement for construction of, access to and from, and maintenance of, the Break Wall, which easement is appurtenant to the Property, pursuant and subject to the terms and conditions of the Break Wall Easement. (6) Sidewalk and Turn-Lane Easement. No later than the Completion Date, the Developer will provide an easement for a sidewalk and turn-lane encumbering the Property on the east side thereof along Coronado Drive. The foregoing easement shall be (i) in substantially the form of the easement attached to this Agreement as Exhibit G, (ii) in the location indicated in said exhibit, (iii) recorded prior to the condominium documents under Section 2.03(2) above, (iv) executed by the Developer and the City, and (v) joined in and consented to by any then existing Project Lender holding a mortgage against the Property (pursuant to the Joinder of Mortgagee substantially in the form attached to Exhibit G). In the event of a conflict between the terms of this Agreement (on the one hand) and the terms of the Break Wall Easement and other specific instruments attached to this Agreement as Exhibits D, E or G (on the other hand) with respect to the subject matter thereof, the terms of the Break Wall Easement such other instruments, which are more specific and detailed as to the subject matter thereof, shall control. 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 7 • 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) The Property is designated Tourist District in the City's Land Development Regulations. (2) The City's current Land Development Regulations shall govern the development of the Project for the duration of this Agreement. Subsequently adopted ordinances and codes of the City which are of general application not governing the development of land shall be applicable to the Property, subject to the terms and conditions of this Agreement. 3.02 Development Approvals and Permits. (1) Applications for Development Approval. The Developer shall prepare and submit to the appropriate Governmental Authority, including the appropriate divisions and boards of the City, applications for approval of all Plans and Specifications necessary for the Project, and shall bear all costs of preparing such applications, applying for and obtaining such permits, including payment of any and all applicable application, inspection, regulatory and impact fees or charges (if any). The City shall, to the extent possible, review and process the foregoing applications and permits on an expedited basis. A list of all permits and approvals required to implement the provisions of this Agreement is attached as Exhibit H. The failure of this Agreement to address a particular permit, condition, term or restriction shall not relieve the Developer o f 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 I that identifies specific tasks to be completed through the entire Project and the proposed date for completion. (3) City Cooperation and Assistance. The City shall cooperate with the Developer in obtaining all necessary Permits required for the construction, completion and opening for business of the Project. If requested by the Developer and authorized by law, the City will join in any application for any Permit, or, alternatively, recommend to and urge any Governmental 8 0 0 Authority that such Permit or Permits be issued or approved, to the extent that the work covered by such Permit(s) is not in violation of the terms of this Agreement. (4) City Authority Preserved. The City's duties, obligations, or responsibilities under any section of this Agreement, specifically including, but not limited to, this Section 3.02, shall not affect the City's right, duty, obligation, authority and power to act in its governmental or regulatory capacity in accordance with applicable laws, ordinances, codes or other building regulations. Notwithstanding any other provision of this Agreement, any required permitting, licensing or other regulatory approvals by the City shall be subject to the established procedures and substantive requirements of the City with respect to review and permitting of a project of a similar or comparable nature, size and scope. In no event shall the City, due to any provision of this Agreement, be obligated to take any action concerning regulatory approvals except through its established procedures and in accordance with applicable provisions of law. (5) Impact Fees. The City shall use its best efforts to secure or provide any lawfully available credits against impact fees applicable to the Project which are authorized under existing laws and regulations for public improvements constructed and paid for by the Developer. 3.03 Concurrency. (1) Concurrency Required. The parties hereto recognize and acknowledge that Florida law (specifically, Part II, Chapter 163, Florida Statutes, and Rule 9J-5, Florida Administrative Code) 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 that it may be required to satisfy the Concurrency requirements of Florida law and the City's regulations as applied to this Project (if applicable) as part of the regulatory approval process for the Project. (2) Reservation of Capacity. The City hereby agrees and acknowledges that as of the Effective Date of this Agreement, the Project satisfies the Concurrency requirements of Applicable Laws. The City agrees to reserve the required capacity in public services to serve the Project for the Developer and to maintain such capacity until January 30, 2014. The City recognizes and acknowledges that the Developer will rely upon such reservation in proceeding with the Project. (3) Required Public Facilities. In addition to the obligations of the City and the Developer set out in Article 5 of this Agreement, the Water Utilities 9 Department of the City will provide potable water service and sanitary sewer service to the Project. ARTICLE 4. PLANS AND SPECIFICATIONS. 4.01 Plans and Specifications. (1) Responsibility for Preparation of Plans and Specifications. The Developer shall be solely responsible for and shall pay the cost of preparing, submitting and obtaining approval of the Plans and Specifications for the Project. (2) Use of Qualified Professionals. The Developer shall retain qualified professionals to prepare the Plans and Specifications and shall cause such professionals to prepare the Plans and Specifications. (3) Approval of Plans and Specifications for the Commercial Parking Garage Which is To Be Available to the Public. The City has previously approved the Conceptual Plans in its regulatory capacity. Exhibit J attached to this Agreement sets forth the City Parking Garage Standards for parking garage facilities owned by the City. In order to ensure that the design of the Parking Unit will meet the City's standards, 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's review of the Plans and Specifications hereunder in its proprietary (i.e., non-regulatory) capacity shall be limited to compliance by the Parking Unit with the City Parking Garage Standards. The City shall notify the Developer in writing within thirty (30) days following 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 have not materially changed from the Conceptual Plans in a manner which causes the Parking Unit to no longer conform to the City Parking Garage Standards, the City shall approve the Plans and Specifications as submitted. The City's failure to respond to the Developer within said 30- day period shall be deemed approval. ARTICLE 5. PROJECT DEVELOPMENT. 5.01 Ownership of Property. The Developer is the owner of the Property. 5.02 City's Obligations. (1) Vacation of Right-of-Way. The City Council has adopted (or will consider adopting) an ordinance permanently vacating the eastern half of the existing right-of-way of South Gulfview Boulevard (approximately 35' in 10 0 9 width) included within or adjacent to the Property, being the area depicted on Exhibit C. The vacation shall be conditioned on the oonstruction of the Project and such other conditions as City Council reasonably deems appropriate, which conditions shall be expressly set forth in the ordinance vacating the right-of-way. The time period for compliance with such condition in the ordinance shall be not less than twenty-four (24) months, provided that if the Completion Date is extended for any reason (whether by unavoidable delay or otherwise), the outside date for compliance with such condition for purposes of the Vacation of Right-of-Way shall be extended for a commensurate period of time. The City shall execute and deliver any instruments confirming the Vacation of Right-of-Way as may be reasonably required by the Developer. (2) Permits. The City will cooperate and coordinate with the Developer with regard to all Permit applications, including without limitation those to federal, state and county agencies, and will facilitate or expedite, to the greatest extent possible, the Permit approval process. (3) Authority for Cafe Seating. The City has adopted a regulation authorizing the use of portions of the west thirty-five (35) feet of the South Gulfview Boulevard right-of-way existing on the Effective Date of this Agreement for outdoor cafe seating and associated activities. 5.03 Obligations of the Developer. (1) The Project. The Developer shall build and operate the Project. (2) Responsibility for On-Site Costs. The Developer shall be responsible for all on-site costs relative to the development of the Project, including the Parking Unit. (3) Parking. The Developer agrees to make three hundred (300) parking spaces within the Project available for public parking, of which not less than two hundred fifty (250) parking spaces will be available on an hourly basis. The Developer may charge the public for use of the parking spaces in the Parking Unit 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. The Developer agrees, during the term of this Agreement, to maintain the Parking Unit in a manner consistent with the City's "Parking Structure Maintenance Standards" attached hereto as Exhibit K. For purposes of clarity, it is acknowledged and agreed that the parking spaces included in the Retail Unit(s) or dedicated to the exclusive use of the Retail Unit(s) are not subject to the requirements and limitations of this Section. 11 0 0 (4) Commencement of Construction. The Developer shall commence construction of the Project by September 30, 2010, and shall thereafter diligently pursue completion of the Project. ARTICLE 6. PROJECT FINANCING. 6.01 Financing. The Developer intends to finance the development and construction of the Project through one or more loans (as amended, restated, assigned and renewed from time to time, the "Project Financing") with third-party lender(s) (collectively, the "Project Lender"), secured by, inter alia, the Retail Unit(s) and Parking Unit. The Project Financing shall be contingent upon and the City hereby agrees to enter into a "put" agreement (the "Put Agreement") between the Project Lender and the City substantially in the form attached hereto as Exhibit L, with such modifications thereto as may be reasonably acceptable to the Project Lender and the City. Pursuant to the Put Agreement, the Project Lender will have the option, for a period of five (5) years following the Completion Date, to notify the City that it will require the City to purchase the Parking Unit for a purchase price of $9,300,000 if the Project Lender forecloses (by judicial foreclosure, deed in lieu or otherwise) against the Project following an event of default by the Developer under the applicable Project Financing documents. The City agrees to establish and maintain a capital improvement project account of $9,300,000 during the term of the Put Agreement for the purchase of the Parking Unit as more particularly provided in the Put Agreement. The City shall enter into the Put Agreement with the Project Lender simultaneously with the closing of the Project Financing. The structure of the Project Financing and security therefor (whether through one mortgage, multiple mortgages or otherwise) shall not be limited or restricted in any way by the terms of this Article 6, provided that the City shall be required to purchase the Parking Unit only upon the terms and conditions set forth in the Put Agreement. The Project Lender shall have the ability to assign the Put Agreement upon the terms and conditions set forth therein, but the City shall have no right to assign the Put Agreement. The City shall not modify or amend (or consent to a modification or amendment to) the Put Agreement without the prior written consent of the Developer. Once the Put Agreement is executed, the City's obligation to purchase the Parking Unit shall be governed by the Put Agreement and shall not be terminated and/or affected in any way by a subsequent termination of this Agreement. With respect to the subject matter of the Put Agreement, the terms of the Put Agreement shall govern and control over any conflicting or inconsistent terms of this Agreement. 6.02 Notice of Project Financing to City. As soon as the Developer shall have obtained any financing for the Project, the Developer shall provide the City with a sworn statement identifying the name and address of 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. 6.03 Copy of Default Notice to City. The Developer covenants and agrees that either the Put Agreement or the Project Financing documents shall include a provision which provides that in the event any Project Financing secured by the Parking Unit shall become due and payable by maturity or acceleration, the Project Lender shall give 12 0 0 written notice thereof to the City by certified mail, return receipt requested, or by overnight courier or by hand deliver. 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. 6.04 Notices to/from Project Lenders. Any notice or other communication which the City shall desire or is required to give to or serve upon Project Lender shall be in writing and shall be served by certified mail, return receipt requested, or overnight courier or by hand delivery, addressed to such Project Lender at its address as set forth in the sworn statement to the City under Section 6.02, or at such other address as shall be designated from time to time by such Project Lender by notice in writing given to the City. 6.06 Rights of Project Lenders. The City hereby agrees with and for the benefit of each Project Lender: (1) When giving notice to the Developer with respect to any default under this Development Agreement or any exercise of any right to terminate this Development Agreement, the City will also give a copy of such notice to each Project Lender, and no such notice to the Developer shall be deemed effective with respect to any Project Lender unless such notice is also given in said manner to each such Project Lender. (2) In case the Developer shall default in respect of any of the provisions of this Development Agreement, any Project Lender shall have the right, but not the obligation, to cure such default and the City shall accept performance by or on behalf of such Project Lender as though, and with the same effect as if, the same had been done or performed by the Developer. A Project Lender will have a period of time after the service of such notice upon it within which to cure the default specified in such notice, or cause it to be cured, which is the same period for cure, if any, as is given to the Developer under this Development Agreement in respect of the specified default after the giving of such notice to the Developer, plus an additional period of thirty (30) days. In the event of a default (or in the event that the City is seeking to terminate this Development Agreement by reason of a default) which is curable without Project Lender being in possession and control of the Property, but cannot reasonably be cured within said period, the period of time for cure shall be extended for so long as any Project Lender is diligently and continuously proceeding to attempt to cure such default, provided that the Project Lender has begun proceedings to cure the default within the said period. (3) With respect to any default by the Developer under this Development Agreement that is not susceptible of being cured by the Project Lender without being in possession and control of the Property, the City shall take no action to terminate this Development Agreement on account of such default if, within ninety (90) days after notice of the default from the City 13 0 0 (subject to any bankruptcy stays), the Project Lender shall have commenced appropriate proceedings to obtain possession of the Property (including possession by a receiver) or to foreclose the Project, and shall thereafter be prosecuting the same to completion in good faith, with diligence and continuity (subject to any bankruptcy stays); provided, however, that (i) the Project Lender shall conclude any proceedings to obtain possession of the Property or to foreclose the Project (as applicable, including the removal of any bankruptcy stay) within eighteen (18) months following commencement of such action, (ii) during the period of the City's forbearance, the Project Lender shall comply with such of the terms, covenants and conditions of this Development Agreement as are then susceptible of compliance by the Project Lender, and (iii) if and after the Project Lender obtains possession of the Property, the Project Lender shall promptly commence and diligently pursue the curing of all defaults under this Development Agreement then susceptible of being cured by the Project Lender. (4) The City agrees to consider reasonable modifications to this Section 6.05 requested by any Project Lender in connection with the closing of the Project Financing, provided that such modifications do not result in any changes in the Project to be constructed hereunder or impair the City's rights or impose any additional obligations on the City or adversely affect the City's remedies in the event of any default. (5) The provisions of this Section 6.05 in favor of the Project Lender shall inure to the benefit of the Project Lender and its successors, assigns and designees, and also any other purchaser or transferee of the Project and this Development Agreement pursuant to any foreclosure or bankruptcy proceedings, or assignment in lieu thereof. ARTICLE 7. INDEMNIFICATION. 7.01 Indemnification by the Developer. (1) The Developer agrees to indemnify, defend and hold harmless, the City, its respective agents, officers, or employees from any and all liabilities, damages, penalties, judgments, claims, demands, costs, losses, expenses or attorneys' fees through appellate proceedings, for personal injury, bodily injury, death or property damage arising out of, or by reason of any act or omission of the Developer, its agents, employees or contractors arising out of, in connection with or by reason of, the performance of its obligations covered by this Agreement, or which are alleged to have arisen out of, in connection with or by reason of, the performance of such obligations. (2) The Developer shall indemnify, defend and hold harmless the City, its officers and employees from any and all liabilities, damages, costs, 14 penalties, judgments, claims, demands, losses, or expenses (including, but not limited to, actual attomeys' fees and engineering flees) arising from or attributable to any breach by the Developer, as the case may be, of any representations or warranties contained in Section 8.01, or covenants contained in Section 8.02. (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. 7.02 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 its obligations covered by this Agreement, or which are alleged to have arisen out of, in connection with or by reason of, the performance of such obligations. (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 9.01, or covenants contained in Section 9.02. (3) The City's indemnity obligations under this Section 7.02 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. (4) 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 15 0 0 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. 7.03 Limitation of Indemnification. Notwithstanding anything to the contrary contained herein, with respect to the indemnification obligations of the Developer (as set forth in Section 7.01) and the City (as set forth in Section 7.02), 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 8. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DEVELOPER. 8.01 Representations and Warranties. The Developer represents and warrants to the City that each of the following statements is currently true and accurate and agrees the City may rely upon each of the following statements: (1) The Developer is a Florida corporation duly organized and validly existing under the laws of the State of Florida, has all requisite power and authority to carry on its business as now conducted, to own or hold its properties and to enter into and perform its obligations hereunder and under each document or instrument contemplated by this Agreement to which it is or will be a party, is qualified to do business in the State of Florida, and has consented to service of process upon a designated agent for service of process in the State of Florida. (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 16 • e or as are specifically noted herein, (ii) contravenes any existing law, judgment, governmental rule, regulation or order applicable to or binding on the Developer, or (iii) contravenes or results in any breach of, default under or, other than as contemplated by this Agreement, results in the creation of any lien or encumbrance upon any property of the Developer under any indenture, mortgage, deed of trust, bank loan or credit agreement, the Developer's Articles of Incorporation, or, on the date of this Agreement, any other agreement or instrument to which the Developer is a party or by which the Developer may be bound. (3) This Agreement and, to the extent such documents presently exist in a form accepted by the City and the Developer, each document contemplated or required by this Agreement to which the Developer is or will be a party constitutes, or when entered into will constitute, a legal, valid and binding obligation of the Developer enforceable against the Developer in accordance with the terms thereof, except as such enforceability may be limited by applicable bankruptcy, insolvency or similar laws from time to time in effect which affect creditors' rights generally and subject to usual equitable principles in the event that equitable remedies are involved. (4) There are no pending or, to the knowledge of the Developer threatened actions or proceedings before any court or administrative agency against the Developer, or against any controlling shareholder, officer, employee or agent of the Developer which question the validity of this Agreement or any document contemplated hereunder, or which are likely in any case, or in the aggregate, to materially adversely affect the consummation of the transactions contemplated hereunder or the financial condition of the Developer. (5) 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 in all material respects. (6) 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, subject to closing the Project Financing. (7) 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. 17 8.02 Covenants. The Developer covenants with the City that until the earlier of the Termination Date or the Expiration Date (unless an earlier date is specified, in which case such earlier date shall control): (1) The Developer shall timely perform or cause to be performed all of the obligations contained herein which are the responsibility of the Developer to perform. (2) During each year that this Agreement and the obligations of the Developer under this Agreement shall be in effect, the Developer shall cause to be executed and to continue to be in effect those instruments, documents, certificates, permits, licenses and approvals and shall cause to occur those events contemplated by this Agreement that are applicable to, and that are the responsibility of, the Developer. (3) The Developer shall use commercially reasonable efforts to accomplish the development of the Project by the Developer in accordance with the Plans and Specifications, and this Agreement, and will not violate any laws, ordinances, rules, regulations, orders, contracts or agreements that are 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 materially adversely affects, or with the passage of time is likely to materially adversely affect, the Developer's financial capability to successfully and completely develop, construct and complete the Project as contemplated hereby. (5) Subject to Section 15.01, from the Effective Date through the Completion Date, 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. (6) 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 18 0 0 performance of all other obligations required of Developer by this Agreement. (7) 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 Completion Date. ARTICLE 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CITY. 9.01 Representations and Warranties. The City represents and warrants to the Developer that each of the following statements is currently true and accurate and agrees that the Developer may rely on each of the following statements: (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, or (iii) contravenes or results in any breach of, or default under or, other than as contemplated by this Agreement, results in the creation of any lien or encumbrance upon any property of the City under any indenture, mortgage, deed of trust, bank loan or credit agreement, applicable ordinances, resolutions or, on the date of this Agreement, any other agreement or instrument to which the City is a party, specifically including any covenants of any bonds, notes, or other forms of indebtedness of the City outstanding on the Effective Date. (3) This Agreement and, to the extent such documents presently exist in a form accepted by the City and the Developer, each document contemplated or required by this Agreement to which the City is or will be a party constitute, or when entered into will constitute, legal, valid and binding obligations of the City enforceable against the City in accordance with the terms thereof, except as such enforceability may be limited by public policy or applicable bankruptcy, insolvency or similar laws from time 19 • to time in effect which affect creditors' rights generally and subject to usual equitable principles in the event that equitable remedies are involved. 9.02 Covenants. The City covenants with the Developer that until the earlier of the Termination Date or the Expiration Date (unless an earlier date is specified, in which case such earlier date shall control): (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 applicable thereto, and, to the extent permitted by law, the City will not enact or adopt or urge or encourage the adoption of any ordinances, resolutions, rules regulations or orders or approve or enter into any contracts or agreements, including issuing any bonds, notes, or other forms of indebtedness, that will result in any provision of this Agreement to be in violation thereof. (4) The City shall not request or recommend any rezoning of the Property, or any part thereof, or any change in the Comprehensive Plan, which will prevent or adversely affect the development of the Project. (5) The City shall maintain its financial capability to carry out its responsibilities as contemplated by this Agreement and shall notify the Developer of any event, condition, occurrence, or change in its financial condition which materially adversely affects, or with the passage of time is likely to materially adversely affect, the City's financial capability to carry out its responsibilities contemplated hereby. ARTICLE 10. CONDITIONS PRECEDENT. 10.01 Construction of Project. Subject to termination of this Agreement pursuant to Article 11, 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: 20 • 0 (1) The Plans and Specifications that are necessary, to commence construction shall have been approved by the City (to the extent required under this Agreement) and by any other applicable Governmental Authority, and the initial Permit for the commencement of construction of the Project and all other Permits necessary for construction to commence shall have been issued.. (2) FEMA shall have approved the Flood Zone Change, all appeal periods allowing for any challenge of the Flood Zone Change shall have expired and the Flood Zone Change shall have become permanently effective (following final resolution of any appeals, if applicable). (3) The Project Financing shall have closed and conditions to funding shall have been satisfied. (4) The City Council shall have adopted an ordinance effecting the Vacation of Right-of-Way as contemplated in Section 5.02(1) hereof. 10.02 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 11. DEFAULT; TERMINATION. 11.01 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 any one or more of the following: (a) The Developer shall fail to perform or comply with any material provision of this Agreement applicable to it within the time prescribed therefor, after receipt of a notice from the City pursuant to subsection 11.01(2)(a); or (b) The Developer shall make a general assignment for the benefit of its creditors, or shall admit in writing its inability to pay its debts as they become due or shall file a petition in bankruptcy, or shall be adjudicated a bankrupt or insolvent, or shall file a petition seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation or shall file an answer admitting, or shall fail reasonably to contest, the material allegations of a petition filed against it in any such proceeding, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of the Developer or any material part of such entity's properties; or 21 0 0 (c) Within ninety (90) 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 ninety (90) 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. (2) (a) If an event of default by the Developer described in subsection (1) above shall occur, the City shall provide written notice thereof to the Developer, and (1) 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 (ii) if such event of default is of such nature that it cannot be completely cured within such time period, then if the Developer shall not have commenced to cure such default within such thirty (30) day period and shall not diligently prosecute such cure to completion within such reasonable longer period of time as may be necessary (provided, however, if the Developer is proceeding diligently and in good faith, the curative period shall be extended for a period of not exceeding six (6) months without any approval or consent of the City being required, but such approval will be required if the curative period is to be extended beyond six (6) months after the notice of default has been given by the City to the Developer), then, in addition to any remedy available under Section 11.05, the City may terminate this Agreement or pursue any and all legal or equitable remedies to which the City is entitled. (b) Any attempt by the City to pursue any of the above referenced remedies will not be deemed an exclusive election of remedy or waiver of the City's right to pursue any other remedy to which either may be entitled. (c) Any time periods or deadlines provided in this Agreement shall be tolled or extended by the amount of time to cure any event of default hereunder if such event affects the Developer's or City's ability to perform by such deadline or the expiration of such period. (3) Notwithstanding any provision of this Section, a default by the Developer following the Completion Date 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. 22 0 0 11.02 Default by the City. (1) 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 (i) any material provision of this Agreement applicable to it within the time prescribed therefor, after receipt of a notice from the Developer pursuant to subsection 11.02(2)(a), or (ii) any obligation of the City under the Put Agreement and such failure continues beyond any applicable notice and grace period provided therein. (2) (a) If an event of default by the City described in Section 11.02(1) shall occur, the Developer shall provide written notice thereof to the City, and (i) if such event of default shall not be cured by the City within thirty (30) days after receipt of the written notice from the Developer specifying in reasonable detail the event of default by the City, or (ii) if such event of default is of such nature that it cannot be completely cured within such time period, then if the City shall not have commenced to cure such default within such thirty (30) day period and shall not diligently prosecute such cure to completion within such reasonable longer period of time as may be necessary (not to exceed, however, six (6) months from the Developer's notice), then the Developer may terminate this Agreement, institute an action to compel specific performance of the terms hereof by the City or pursue any and all legal or equitable remedies to which the Developer is entitled. (b) Any attempt by the Developer to pursue any of the remedies referred to in subparagraph (a) 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. (c) Any time periods or deadlines provided in this Agreement shall be tolled or extended by the amount of time to cure any event of default hereunder if such event affects the Developer's or City's ability to perform by such deadline or the expiration of such period. 11.03 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. 23 0 0 11.04 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. 11.05 Termination. (1) The Developer and the City acknowledge and agree that as of the Effective Date certain matters mutually agreed by the parties hereto to be essential to the successful development of the Project have not been satisfied or are subject to certain conditions, legal requirements or approvals beyond the control of any of the parties hereto or which cannot be definitely resolved under this Agreement, including, but not limited to, failure of a Governmental Authority to grant an approval required for development of the Project and failure of FEMA to grant the Flood Zone Change. 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 11, 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 City or the Developer after the occurrence of any of the following events or conditions (except for subsection (b), in which event only the Developer may terminate this Agreement pursuant to this subsection (2)): (a) The appropriate Governmental Authority (including the City in exercise of its governmental and regulatory authority and responsibility), upon petition by the Developer denies or fails to: issue the necessary order or other action necessary to vacate the right-of-way as described in Section 5.02(1), approve the Flood Zone Change, issue the Permits or any other land use approval necessary to commence construction of the Project on the Property, provided the Developer has proceeded diligently, expeditiously and in good faith to obtain such approval, permits or other necessary actions; (b) A previously unknown site condition is subsequently discovered and that condition prevents successful development of the Project, 24 • • or part of the Project on the Property, or part of the Property (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 of its capabilities, is unable to cause a condition precedent to its respective obligations to occur or be satisfied, then the Developer or the City may elect to terminate this Agreement by giving a notice to the other party hereto within thirty (30) days of the occurrence of such event or the determination of inability to cause a condition precedent to occur or be satisfied, stating its election to terminate this Agreement as a result thereof, in which case this Agreement shall then terminate. Notwithstanding anything contained herein to the contrary, neither party shall have the right to terminate this Agreement under this Section 11.05 once the Commencement Date shall have occurred. (4) In the event of a termination pursuant to this Section 11.05, 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. 11.06 Termination Certificate. (1) In the event of a termination of this Agreement for any reason prior to the Expiration Date, each of the parties hereto do covenant and agree with each other to promptly execute a certificate prepared by the party electing to terminate this Agreement, which certificate shall expressly state that this Agreement has been terminated in accordance with its terms, is no longer of any force and effect except for those provisions hereof which expressly survive termination, that the rights, duties and obligations of the parties hereto have been terminated and released (subject to those surviving provisions hereof) and that the Property is no longer subject to any restrictions, limitations or encumbrances imposed by this Agreement. (2) The certificate described in Section (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 12. ARBITRATION 12.01 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 25 0 0 manner set forth in this Article 12. All parties hereby agree such t arbitration, once commenced, shall be the exclusive procedure for resolving such disagreement or dispute and agree to be bound by the result of any such arbitration proceeding unless all parties mutually agree to terminate such proceeding prior to decision. If any arbitration proceeding under this part adversely affects the performance of any party hereunder, then any time periods provided herein for such performance by that party shall be tolled during the pendency of the arbitration proceeding affecting such performance. 12.02 Appointment of Arbitrators. (1) (a) Unless accelerated arbitration as provided in Section 12.08 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. (2) (a) If two (2) arbitrators are appointed pursuant to subsection (a) above, the arbitrators thus appointed shall appoint a third disinterested person who is on the list of qualified arbitrators maintained by the American Arbitration Association, and such three (3) arbitrators shall as promptly as possible determine such matter. (b) If the second arbitrator shall not have been appointed as provided in subsection (a), the first arbitrator shall, after ten (10) days notice to the parties, proceed to determine such matter. (c) If the two (2) arbitrators appointed by the parties pursuant to subsection (a) shall be unable to agree within fifteen (15) days after the appointment of the second arbitrator upon the appointment of a third arbitrator, they shall give written notice of such failure to agree 26 0 0 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 Code, as amended. 12.03 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. 12.04 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. 12.06 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 12.02 hereof. 12.06 Decision of Arbitrators. (1) If any decision reached by arbitration as provided in this part requires performance by the Developer, the Developer covenants and agrees to comply with any decision of the arbitrator(s) promptly after the date of receipt by the Developer of such decision, and to continue such performance to completion with due diligence and in good faith. 27 0 (2) If any such decision requires performance by the City, the City covenants and agrees to comply promptly with any decision reached by arbitrator(s) 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. 12.07 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 12.07, "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. 12.08 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 12.02 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 12.08, shall be accomplished by either party notifying the American Arbitration Association (or any successor organization thereto) that the parties have agreed to a single arbitrator, qualified to decide the matter for arbitration, to be appointed by the American Arbitration Association (or any successor organization thereto) with the consent of the parties to such proceeding within three (3) days after receipt of the request and to decide such matter within five (5) days after such appointment. (c) If an arbitrator is not so appointed with consent of the parties to the proceeding within three (3) days after the notice referred to in paragraph (2) is received by the American Arbitration Association, the accelerated proceeding under this Section 12.08 shall terminate and the procedures otherwise set forth in this Article 12 shall apply, unless the parties mutually agree to an extension of such time period. 28 0 0 (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 12.08, remain in effect and applicable to an accelerated arbitration proceeding. 12.09 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. 12.10 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 13. UNAVOIDABLE DELAY. 13.01 Unavoidable Delay. (1) Any delay in performance of or inability to perform any obligation (other than an obligation to pay money) or meet any date or deadline (including without limitation the Commencement Date and the Completion Date) under this Agreement due to any event or condition described in subparagraph (2) as an event of "Unavoidable Delay" shall be excused in the manner provided in this Section 13.01. (2) "Unavoidable Delay" means any of the following events or conditions or any combination thereof: acts of God, litigation which has the effect of precluding reasonable satisfaction of the obligations of this Agreement, acts of the public enemy, riot, insurrection, war, pestilence, archaeological excavations required by law, delays relating to Applicable Laws or approval of Permits beyond the control of the party seeking same, 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). 29 0 0 (3) An application by any party hereto (referred to in this subparagraph (3) and in subparagraph (4) as the "Applicant") for an extension of time pursuant to this subsection must be in writing, must set forth in detail the reasons and causes of delay, and must be filed with the other party to this Agreement within thirty (30) 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 14. FIRE OR OTHER CASUALTY; CONDEMNATION. 14.01 Loss or Damage to Project. (1) Until the Completion Date, subject to the extent, availability and sufficiency of insurance proceeds or the condemnation award (as applicable) and the Project Lender's consent and approval (as set forth below in subparagraph (3)), the Developer covenants and agrees to diligently commence and complete the reconstruction or repair of any loss or damage caused by fire or other casualty or by eminent domain (provided the City is not the condemning authority) to the Project (or any portion thereof) 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 (if and to the extent required, and subject to the limitations on the City's approval, under this Agreement) for such reconstruction or repairs. (2) The City shall review the Plans and Specifications (if and to the extent required, and subject to the limitations on the City's approval, under this Agreement) 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 or such approval is otherwise required under Section 4.01(3), and if such Plans and Specifications conform to the applicable laws, ordinances, codes, and regulations in effect at the time of filing with the City of the plans and specifications for such reconstruction or repairs. (3) If (a) the insurance proceeds or condemnation award (as applicable) received are insufficient to complete the repairs, or (b) any Project Lender 30 applies all or a portion of the insurance proceeds or condemnation award to the repayment of the Project Financing, or (c) the Developer is unable to obtain all of the Permits or approvals required under Applicable Laws for the reconstruction of the Project, then, in any of such events, the Developer may elect to terminate this Agreement by giving to the City notice of such election within one hundred eighty (180) days after the occurrence of the casualty or condemnation. If such notice is given, the rights and obligations of the parties under this Agreement shall cease as of the date of such notice, except for those provisions hereof (if any) which expressly survive termination. 14.02 Partial Loss or Damage to Project. Until the Completion Date, any loss or damage by fire or other casualty or exercise of eminent domain to the Project or Property, or any portion thereof, which does not render the Project or Property unusable for the use contemplated by Section 2.03 o f 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, any requirements and conditions of the Project Lender, and the terms of Section 14.01(3). 14.03 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, subject to the terms of this Article 14. 14.04 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. 14.05 Condemnation of Project or Property; Application of Proceeds. In the event that part, but not all, of the Project or Property, 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 31 0 *1 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. 14.06 Condominium Documents Control. Notwithstanding anything contained in this Article 14 to the contrary, from and after the date that the Property is submitted to the condominium form of ownership as contemplated by Section 2.03(2) of this Agreement, the terms of the condominium documents shall govern and control with respect to (a) the reconstruction and repair of any loss or damage to the Project caused by fire or other casualty or eminent domain, and (b) the settlement, collection, use and application of any insurance proceeds or condemnation awards resulting therefrom. ARTICLE 15. MISCELLANEOUS 15.01 Assignments. (1) By the Developer. a. Prior to the Commencement Date, the Developer may sell, convey, assign or otherwise dispose of any or all of its right, title, interest and obligations in and to the Project, or any part thereof, only with the prior written consent of the City, which consent shall not be unreasonably withheld, provided that such party (hereinafter referred to as the "assignee"), to the extent of the sale, conveyance, assignment or other disposition by the Developer to the assignee, shall be bound by the terms of this Agreement the same as the Developer for such part of the Project as is subject to such sale, conveyance, assignment or other disposition. b. If the assignee of the Developer's right, title, interest and obligations in and to the Project, or any part thereof assumes all of the Developer's obligations hereunder for the Project, or that part subject to such sale, conveyance, assignment or other disposition, then the Developer shall be released from all such obligations hereunder which have been so assumed by the assignee, and the City agrees to execute an instrument evidencing such release, which shall be in recordable form. C. An.assignment or transfer of the Project, or any part thereof, by the Developer to any corporation, limited liability company, limited partnership, general partnership, joint venture or other business entity, in which the Developer (or any person(s) or entity controlling, controlled by or under common control with the Developer) is the or a general partner or managing member 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 32 0 9 approvals of assignments or transfers imposed, by this Section 15.01, 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. (2) City's Right to Assign Rights. The City shall not have the right to assign or otherwise transfer this Agreement or any of its rights and obligations hereunder. 15.02 Successors and Assigns. The terms herein contained shall bind and inure to the benefit of the City, and its successors and permitted assigns, and the Developer and its successors and permitted assigns, except as may otherwise be specifically provided herein. 15.03 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: L.O.M., Inc. c/o Surf Style, Inc. 4100 N. 28th Terrace Hollywood, Florida 33020 Attn: Controller To the City: City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 Attn: City Manager with copies to: with copies to: Greenberg Traurig, P.A. Pamela K. Akin, Esq. 1221 Brickell Avenue, 23`d Floor Clearwater City Attorney Miami, Florida 33131 112 S. Osceola Avenue Attn: Nancy B. Lash, Esq. 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 15.03. 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 33 • e of change of address is received as to any particular party hereto, all other parties may rely upon the last address given. 15.04 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. 15.05 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. 15.06 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 certifying that this Agreement has not been modified and is in full force and effect (or if there have been modifications that the said Agreement as modified is in full force and effect and setting forth a notation of such modifications), and that to the knowledge of such party, neither it nor any other party is then in default hereof (or if another party is then in default hereof, stating the nature and details of such default), it being intended that any such statement delivered pursuant to this Section 15.06 may be relied upon by any 34 • s 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. 15.07 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. 15.08 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. 15.09 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. 15.10 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. 15.11 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 Property. 15.12 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. 15.13 Recording of Development Agreement. Pursuant to §163.3239 of the 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 35 • o after City Council approval of this Agreement. The Developer shall pay the cost of such recording. A copy of the recorded Agreement shall be submitted by the City to the state land planning agency within fourteen (14) days after this Agreement is recorded, with evidence of such submittal to be provided to the Developer. 15.14 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. 15.15 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. 15.16 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. 15.17 Technical Amendments. In the event that due to minor inaccuracies contained herein or any Exhibit attached hereto or any other agreement contemplated hereby, or due to changes resulting from technical matters arising during the term of this Agreement, the parties agree that amendments to this Agreement required due to such inaccuracies, unforeseen events or circumstances which do not change the substance of this Agreement may be made and incorporated herein. The City Manager is authorized to approve such technical amendments, on behalf of the City, with the written approval of the Developer, and is authorized to execute any required instruments, amendments and approvals, to make and incorporate such amendment (so approved by the Developer) to this Agreement or any Exhibit attached hereto or any other agreement contemplated hereby. 15.18 Term; Expiration; Certificate. (1) If not earlier terminated as provided in Section 11.05, this Agreement shall automatically expire and no longer be of any force and effect on the Expiration Date. 36 (2) Upon completion of the term of this Agreement, upon the request of the City or the Developer, 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 12. (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. 15.19 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, conditioned or delayed, unless otherwise expressly authorized by the terms of this Agreement. Whenever in this Agreement the approval or consent of the City is required, the written approval or consent regarding the matter in question by the City Manager or his/her designee on behalf of the City shall satisfy the requirement for approval or consent of the City. However, any amendments or modifications to this Agreement or any exhibits hereto, except as otherwise provided in Section 15.17 hereof, shall require City Council approval. 15.20 Waiver of Jury Trial. The parties hereto hereby each knowingly, irrevocably, voluntarily and intentionally waive any right such party may have to a trial by jury in respect of any action, proceeding or counterclaim based on this Agreement, or arising out of, under or in connection with this Agreement or any amendment or modification of this Agreement, or any other agreement executed by and between the parties in connection with this Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement to the parties to enter into this Agreement. 15.21 Effective Date. As provided by §163.3239 of the Florida Statutes (2004), this Agreement will become effective after being recorded in the Public Records of Pinellas County, Florida and 30 days after having been received by the state land planning agency. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK 37 • o SIGNATURES ON FOLLOWING PAGE(S)] 38 • • IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals affixed as of the day and year first above written. Countersigned: CITY OF CLEARWATER, FLORIDA B Y-2717 • ank V. Hibbard William B. Horne II Mayor City Manager Approved as to form: I-jk Pamela K. Akin City Attorney STATE OF FLORIDA Attest: By: < Name: N 'V O V) Title: LA?k COUNTY OF 15YpWRA ) The foregoing instrument was acknowledged before me thiA-4 2010 b day of y V L VlY as % W -f- of L.O.M.,AIC, a)qorida corporation, on behalf of the corporation. ature of Notary Public mtvt4 Week-s Printed, typed or stamp My Commission Expires: 12-/.30 110 NOTARY PUBLIC-STATE OF FLORIDA Lauren Weeks Commission # DD614429 '•.,,,,,,,,.?? Expires: DEC. 30, 2010 BONDED THRU ATLANTIC BONDING CO., M 39 L.O.M., INC., a Florida corporation EXHIBIT A LEGAL DESCRIPTION OF PROPERTY Leaal Description of Property yio to Vacation of Right-of-Way: PARCEL 1: Lot 110, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. PARCEL 2: Lots 60, 61 and 62, and the Southerly one-half of Lot 107 and all of the Lots 108 and 109, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. Legal Description of Pro e after Vacation of Right-of-Way: PARCEL 1: Lot 110, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. PARCEL 2: Lots 60, 61 and 62, and the Southerly one-half of Lot 107 and all of the Lots 108 and 109, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. TOGETHER WITH THE FOLLOWING DESCRIBED PARCELS: The Easterly 1/2 of Gulfview Boulevard lying West of and adjacent to the Westerly boundaries of Lots 60, 61 and 62, THE LLOYD-WHITE-SKINNER SUBDIVISION, as recorded in plat book 13 on pages 12 and 13 of the Public Records of Pinellas County, Florida, more particularly described as follows: Begin at the Northwest comer of said Lot 60; thence 180.12 feet along the Westerly boundary of said Lots 60, 61 and 62, and along the arc of a curve to the right with a radius of 6017.52 feet, subtended by a chord distance of 180.11 feet, bearing S08°35'03"W to the Southwest corner of said Lot 62; thence N80°34'24"W along the Westerly extension of the Southerly boundary of said Lot 62, a distance of 35.00 feet to a point of intersection with the centerline of said Gulfview Boulevard, a 70 foot wide right of way; thence 179.08 feet along said centerline and along the arc of a curve to the left with a radius of 5982.52 feet, subtended by a chord distance of 179.08 feet, bearing N08°35'03"E to a point of intersection with the Westerly extension of the Northerly boundary of said Lot 60; thence S82°15'44"E a distance of 35.00 feet to the Point of Beginning. 1 v11 MIA 180,692,234 h ? .............. SIAPIDM SFM, G + ! MEP. ROOF SURF STYLEL000 GAIDRC SAMIER ACRYLIC I<%TUREO b y j ON MI co'R iPRECAST .. S[W%.IJNL... i •? r CD.K.1tC[4IYP. b? ?? ?U+u oUU e>um.E C. w.>FACM }I r..K yAYC(.WAl if is nl. v.WiIU GREAM cm Y JS' VM.APPLE GRME I ? iTiS HGM b MEOA4NN. L t?? '] ? 4 4 ? LLB ' ? _ __ Bi'Ny EY1L ' I G :a,7a. sK+anc Ei REC b• ?l _ S? _ 6W- .. L? 211a71EfLL .F ?.. 0•8ION WEST ELEVATION :i^ ? t J???? ?MET4 FWVAEO FA9POL'AWMkG 3 i MEfµ 4OOE K 1 ` ?A@ff ON TiECAST ?I e) M r LLO, U) ,yY^L1LS` t a d F a? k? x E Y= Y NORTH ELEVATION pKCAST VN.rx• OVERALL BUILDING ELEVATIONS A401 SCALE: 317r - 1'P .. . , sruaNU aFAr ? , °y Ei 4 ... ACR PA .... ...... ....... c ........ YLIC re%T ..n W a+slE G1 YP : _.. o! _ i fC SMieRtk? ?- - _ a ._._-. X71 ? ? f Y 1. -?- . 13 f 4 yi' r i.rs30. ?, - - I mom ® y - ? ? d i ,? ? •II 5 yo- ?JrA?fvA ag i - .?. _ __ ` ®1..---- ....... _._.._.._. I INNER!!! MIN l! 11 .._.,3.o- u. . ' ' Rh VEAIS:N SOUTH ELEVATION RIECAST PANE , rvv \\VJJ slum-NGSF'M1 METAL RVV^N ACAY:C TE%,UPEO comfTr. rlp i A, 0lwPMBAUBLE oU3 PChC. PUFF 31 LE : -+ - --- K, i]AVANiL1ACNEMI IC IS!9AY ran1AL - m lm-SaVao ''Tmo r) „... T4AFfIC GO%TR 2 EAST ELEVATION AM --- s? YETAI RNW Y M aUOII ...,L.?ETH LEVEL, 68" 3 b, -??iTN. LEVEL H b m U C7 CZ W a Y U 6 rl?r Z oLA. LL r? VJ uli?Ol N < OZ m ?a Q j W _j,LU :z FV Co }p F Lu ' ?1-3 ° COOT d t7 t E:l OVERALL BUILDING ELEVATIONS .: A402 SCALE: YJ2'• 1'-0' Q' H. rr 50 • 0 ........... moor lip ? Flo, U x x rt w • SKETCH of DESCRIPTION TIME 5 NOT A 80 Mt W SURVEY 4'? ?' r 1 1 1 1 1 1 1 1 r 1 r 1 r r r i i p r r r r W J m w 61 1-4 R J J _- P.O.B. LOT 59 H+ NW Corner f 6a 1 ' LOT 60 LOT 61 F LOT 62 \ SW Corner ~- Lot 62 ? LOT 63 i CURVE DATA SCALE : 1' = 50' 0' 50' 100' LOT 106 LOT 108 LOT 109 LOT 110 LOT 111 CURVE RADIUS DELTA ANGLE ARC MM- CIORD BEARING c1 6017.52' 1 01'4254' 180.12' 150.11- 1 SOS'35'031V C2 52' 01-42-W 1. 179.08' A 179.08' N0o?35'03 r r r i r r ? e / ? r r r LU/ M' r Q '_ 0/g r 4r z l b al- or ?j 1 r 1 r ? r 1 II : r I ' r i r r I 1 r The Easterly 1/2 of Gulfview Boulevard lying West of and adjacent to the Westerly boundaries of Lots 60, 61 and 62. THE LLOYD-WHITE-VMNER SUBDMSION, as recorded in plot book 13 on pages 12 and 13 of the Public Records of Pinellas County. Florida, more particularly descrlbed as follows: Begin at the Northwest comer of said Lot 60; thence 180.12 feet along the Westery boundary of said Late 60, 61 and 62, and along the arc of o curve to the fight with a radius of 6017.52 feet. subtended by a chord distance of 180.11 feet, bearing S0935'03'W to the Southwest corner of said Lot 62; thence N80'34'24W along the Westerly extension of.the Southerly boundary of said Lot 62, a distance of 35.00 feet to a point of intersection with the centerline of acid Gulfview Boukvard, 0 70 foot wide right of way; thence 179.08 feet along said centerline and along the arc of o curve to the left with a radius of 5962.52 feet, subtended by o enord distance of 179.08 feet, bearing NOS'35'03'E to a point of intersection with the Westerly extension of the Northerly boundary of said Let 60; thence SBZ15'44"E o distance of 35.00 feet to the Point of Beginning. Contains 6,286.20 wuom feet (0.144 acres), more or less. i LE G? NOR3: 1. Ira L110M AOLM BWML T1ONS OR S ROVIDO S NAVE SUN tOOAttri MM AS SNOWN. PL A IFINFIROM LM MAYM ucem mom PLAT KIM 00171 9600900r iF]D 14I61gID 2 NO M6IRIRIpf15 OF SaLum REREC M EAt;aF?rE]fr5. MW OF WAY AND/OR OWNMV WM FUR116FfD TOT D SURVEYOR ExCfFT AS 9140 3 M SliEl131 OOFS . NOT REFU?CT OR 01311340M E OYI1Jf1tS1MP . 4. USE OF T}M5 90901 BY ANYp1E D7IIEYl 11t411 71p5E PREPARED FOR ML 1NE RE-US135 SOLE RM9t WRNWf LM8l1fY lO lIE SIIRVkI'nt 56 TIE 51d•.ICN WAS PREPAREri 1NINOUr MT M OF A CURRENT TRLE COW~ AND IS Poe PM PO11r or MBLH4111IM POW OF CMISKE1Oa SLOW TO EMAM S. RIOIOS or-WAY me SWAB MAIIM OF Tom 6. M MM BIM ON 111 WESIERLY RlW OF WAY LK OF MUM 80ULEWRO AS BFARMIO SO8'36WOrw fAS5W1ED). rreilare0 fOr no uertmea lo: 11 DATE Drew ing No. 9028om" , Project No. 1 9026 Keith Zoyoc and Associates, Inc. Sepfamber 8, zoos Checked KOU Field Book Pages Drown By JAc SURVEYOR'S CERTIMAIE SUNCOAST LAND SURVEYING I Md ere sum a? loaft s1a palm mWo aM FEWONSM E , nc. 09M a, e. e) rro.e, ad n." M. WMM rJUMM & StMM W5 a1 MvN wy 111 FOREST LAKES I10ULEiVARO ea "01 a" PR7'E:M- va Mayo S in o wr 61617-4 R MM OLOWAR FLA. 34677 MOM INK COOS Pwwrwrt to SNWM 473,MV RMM SMUFM , 110 we 11Tl1MIR Ill MID TIE ROROL I1CD6FD DOLAMARY - TOPOfRAPMC - COMM STAKEOUT slRl4ldlt MC M1i4ETf. ? b 451 PNOW (813) 864-1342 FAX (1113) 655-6690 LB COPQJWO. FA Exhibit C • This instrument prepared by, or under the supervision of (and after recording, return to): Gary A. Saul, Esq. Greenberg Traurig, P.A. 1221 Brickell Avenue Miami, FL 33131 0 DECLARATION OF SURF STYLE CLEARWATER BEACH CONDOMINIUM L.O.M., Inc., a Florida corporation (the "Declarant"), hereby declares: 1. Introduction and Submission 1.1 The Land. The Declarant owns the fee title t0 certain land located in Pinellas County, Florida, as more particularly described in Exhibit 4" annexed hereto (the "Land"). 1.2 Submission Statement. The Declarant hereby submits the Land and all improvements erected or to be erected thereon and all other property, real, personal or mixed owned by Declarant, which is now or hereafter situated on or within the Land - but excluding all public or private (e.g. cable television) utility installations therein or thereon - to the condominium form of ownership and use in the manner provided for in the Florida Condominium Act as it exists on the date hereof and as it may be hereafter renumbered. Without limiting any of the foregoing, no property, real, personal or mixed, not located within or upon the Land as aforesaid shall for any purposes be deemed part of the Condominium or be subject to the jurisdiction of the Association, the operation and effect of the Florida Condominium Act or any rules or regulations promulgated pursuant thereto, unless expressly provided. All provisions of this Declaration (as hereinafter defined), the Articles (as hereinafter defined), the By-Laws (as hereinafter defined) and applicable rules and regulations of the Association (as hereinafter defined) shall, to the extent applicable and unless otherwise expressly herein or therein provided to the contrary, be perpetual and be construed to be covenants running with the Condominium Property (as hereinafter defined) and with every part thereof and interest therein, and all of the provisions hereof and thereof shall be binding upon and inure to the benefit of the Owner and any subsequent owners of any Unit (as hereinafter defined) and their respective heirs, personal representatives, successors or assigns, but the same are not intended to create, nor shall they be construed as creating, any rights in or for the benefit of the general public. All present and future Unit Owners (as hereinafter defined), tenants and occupants of Units shall be subject to and shall comply with the provisions of this Declaration and any applicable rules and regulations adopted by the Association in accordance with this Declaration, as this Declaration, the Articles, the By-Laws and such rules and regulations may be amended from time to time in accordance with this Declaration. The acceptance of a deed of conveyance, or the entering into of a lease, or the entering into occupancy of any Unit, shall constitute an adoption and ratification by such Unit Owner, tenant or occupant of the provisions of this Declaration (including, but not limited to, a ratification of any appointments of attomeys-in-fact contained herein) and the Exhibit D 0 0 rules and regulations of the Association, as they may be amended from time to time, in accordance with this Declaration. 1.3 Name. The name by which this condominium is to be identified is SURF STYLE CLEARWATER BEACH CONDOMINIUM (hereinafter called the "Condominium'. 2. Definitions. The following terms when used in this Declaration and in its exhibits, and as it and they may hereafter be amended, shall have the respective meanings ascribed to them in this Section, except where the context clearly indicates a different meaning: 2.1 "Act" means the Florida Condominium Act (Chapter 718 of the Florida Statutes) as it exists on the date hereof and as it may be hereafter renumbered. 2.2 "Allocated Expenses" means and shall include: (a) All expenses associated with a Shared Component (as hereinafter defined) including, but not limited to, the expenses of maintenance, operation, repair or replacement of a Shared Component, excluding expenses associated with a Casualty or a Taking (each as hereinafter defined), which expenses are allocated between the Unit Owners in proportion to each Unit Owner's Allocated Interest. (b) Costs and expenses of capital improvements and betterments, additions and alterations to and/or relocations of a Shared Component, which costs and expenses are allocated between the Unit Owners in proportion to their applicable Allocated Interest. (c) Expenses declared Allocated Expenses by the provisions of this Declaration or by the By- Laws of the Association. 2.3 "Allocated Interest" means, with respect to any Unit, the proportionate undivided responsibility for the Allocated Expenses related to each Shared Component as set forth on Exhibit "3" attached hereto, and otherwise as may be set forth throughout this Declaration (such Allocated Interest being different and distinct from the Unit Owner's Percentage Shares, and varying with each Shared Component). 2.4 "Apertures" shall have the meaning given to it in Section 3.3(b)(iv) below. 2.5 "Articles" or "Articles of Incorporation" mean the Articles of Incorporation of the Association, as amended from time to time. 2.6 "Assessment" means a share of the funds required for the payment of Common Expenses which from time to time is assessed against the Unit Owners. 2.7 "Association" or "Condominium Association" means SURF STYLE CLEARWATER BEACH CONDOMINIUM .ASSOCIATION, INC., a Florida corporation not for profit, the entity responsible for the operation of the Common Elements of the Condominium in accordance with the terms of this Declaration and the Act. 2.8 "Association Property" means that property, real and personal, if any, which is owned or leased by, or is dedicated by a recorded plat to, the Association for the use and benefit of its members. -2. 2.9 "Board" or "Board of Directors" means the board of directors, from time to time, of the Association 2.10 "By-Laws" mean the By-Laws of the Association, as amended from time to time. 2.11 "Casualty" means any kind or manner of damage, destruction, or physical loss of any kind affecting any portion of the Condominium Property, from any cause whatsoever, including fire, storm, hurricane, flood, earthquake, explosion, act of God, act of war, structural or mechanical failure, or any act or failure to act of any person, whether or not the same may be insured or insurable, other than as a result of (a) normal obsolescence or ordinary wear and tear, (b) any Taking, or (c) any voluntary demolition or removal of improvements by one or more Unit Owners or the Association pursuant to the provisions of this Declaration. 2.12 "Charges" mean a share of the funds required for the payment of Common Expenses, Allocated Expenses or other charges hereunder, including, without limitation, charges levied by the Association, charges levied by a Responsible Unit Owner (as hereinafter defined), Allocated Expenses, insurance related expenses, and all costs and expenses for the maintenance, management, operation and insurance of the Condominium Property, which share may from time to time be levied or assessed against some, but not all Unit Owners, in accordance with the provisions and terms of this Declaration. Charges are not intended to be Assessments which are governed by the Act, but rather are amounts imposed and secured under the terms of this instrument and common law. 2.13 "Committee" means a group of Board Members, Unit owners or Board Members and Unit Owners appointed by the Board or a member of the Board to make recommendations to the Board regarding the Association budget or to take action on behalf of the Board. 2.14 "Common Elements" mean and include: (a) The portions of the Condominium Property which are not included within the Units and/or Association Property. (b) An easement of support in every portion of a Unit which contributes to the support of the Building. (c) Any other parts of the Condominium Property designated as Common Elements in this Declaration or required to be Common Elements pursuant to the Act. 2.15 "Common Expenses" mean all expenses incurred by the Association for the operation, maintenance, repair, replacement or protection of the Common Elements and Association Property, the costs of carrying out the powers and duties of the Association, and any other expense, whether or not included in the foregoing, designated as a "Common Expense" by the Act, the Declaration, the Articles or the Bylaws. For all purposes of this Declaration, "Common Expenses" shall also include, without limitation: all reserves required by the Act or otherwise established by the Association (but same shall not preclude the waiving of reserves as permitted by the Act), regardless of when reserve funds are expended; (d) any valid charge against the Condominium Property as a whole, the cost of which has not been allocated to one or more Unit Owner(s) under the terms of this Declaration, but which shall be shared among the Unit Owners in proportion to each Unit Owner's Percentage Share, (e) all expenses related to the installation, repair, maintenance, operation, alteration and/or replacement of any Common Element Life Safety -3- 0 0 Systems (as hereinafter defined), and (f) any unpaid share of Common Expenses or Assessments extinguished by foreclosure of a superior lien or by deed in lieu of foreclosure. 2.16 "Common Surplus" means the excess of all receipts of the Association collected on behalf of the Association, including, but not limited to, Assessments, rents, profits and revenues on account of the Common Elements, over the amount of Common Expenses. 2.17 "Condominium" shall have the meaning given to it in Section 1.3 above. 2.18 "Condominium Parcel" means a Unit together with the undivided share in the Common Elements which is appurtenant to said Unit; and when the context permits, the term includes all other appurtenances to the Unit. 2.19 "Condominium Property" means the Land, Improvements and other property described in Section 1.2 hereof, subject to the limitations thereof and exclusions therefrom. 2.20 "County" means the County of Pinellas, State of Florida. 2.21 "Clearwater Beach Project" or "Surf Style Clearwater Beach Condominium" means the Land hereby submitted to condominium ownership by Declarant, as well as the Improvements thereon. 2.22 "Declarant" shall mean and refer to L.O.M., Inc., a Florida corporation, and its successors and assigns. 2.23 "Declaration" or "Declaration of Condominium" means this instrument and all exhibits attached hereto, as same may be amended from time to time. 2.24 "Dispute Resolution Plan" shall have the meaning set forth in Section 13.2 below. 2.25 "First Mortgage" means a mortgage (or two or more mortgages of equal priority) which creates a lien (or liens) on a particular Unit having first and paramount priority as among mortgagees under applicable law. 2.26 "First Mortgagee" means the holder of a First Mortgage. 2.27 "Force Majeure" shall mean "Acts of God", labor disputes (whether lawful or not), material or labor shortages, restrictions by any governmental or utility authority, civil riots, floods or other causes beyond a party's control. 2.28 "Improvements" mean all structures and artificial changes to the natural environment (exclusive of landscaping) located on the Condominium Property. 2.29 "Insurance Trustee" shall have the meaning given in Section 2.2(b) below. 2.30 "Land" shall have the meaning given to it in Section 1.1 above. 2.31 "Law" shall mean all present and future laws, ordinances, orders, rules, regulations and requirements of all federal, state, county and municipal govemments, courts, departments, agencies, commissions, boards and offices and of any other body or board or sovereign -4- concurrently or successively exercising similar functions, and of any other lawful authority having jurisdiction over the Condominium Property but expressly excluding changes to the Act or rulings promulgated thereunder. 2.32 "Life Safety Systems" mean and refer to any and all emergency lighting, emergency generators, audio and visual signals, safety systems, sprinklers and smoke detection systems, which are now or hereafter installed in the Building, whether or not within the Units. Without limiting the generality of the foregoing, when the context shall so allow, the Life Safety Systems shall also be deemed to include all means of emergency ingress and egress, which shall include all stairways and stair landings serving more than one Unit or a Unit and any portion of the Common Elements. Notwithstanding the breadth of the foregoing definition, nothing herein shall be deemed to suggest or imply that the Building or the Condominium contains any such Life Safety Systems. 2.33 "Mortgagee" means the holder of a mortgage on a Unit. 2.34 "Parking Unit" means and refers to the "Parking Unit" as more particularly identified on Exhibit "2" attached hereto. Subject to the other provisions of this Declaration, the Parking Unit is designed and intended to be used for any purpose permitted by applicable zoning ordinances. References herein to "Units" or "Parcels" shall include the Parking Unit unless the context would prohibit or it is otherwise expressly provided. Notwithstanding the designation of the Unit as the "Parking Unit", the name alone shall not restrict its use, as the Parking Unit may be used for any lawful purpose. The Retail Unit Parking Area (as hereinafter defined) is not within the Parking Unit. 2.35 "Pass-thru" or "Central Pass-thru" means and refers to that portion of the Condominium Property identified as such on Exhibit 7 attached hereto. 2.36 "Percentage Share" means the undivided interest in the Common Elements appurtenant to each Unit as set forth in Section 5.1 below. 2.37 "Permittees" means and includes any Unit Owner's tenants, sub-tenants, contractors, subcontractors, agents, employees, licensees, and invitees and their respective officers, directors, contractors, subcontractors, agents, employees, licensees, invitees, customers, and visitors. 2.38 "Prime Rate" means a varying rate of interest from time to time, equal to the "Prime Rate" as reported from time to time in the "Money Rates" section of The Wall Street Joumal, as published and distributed in New York, New York, or if such rate shall cease to be published, such other rate as shall at the time be representative of the rates announced by major U.S. money center banks as the typical rate of interest charged on unsecured corporate loans. 2.39 "Repair Work" means all maintenance, repair and replacement work and capital repair and replacement work, including costs of plans and specifications, permits and inspections fees, supervision, and other related costs, whether due to ordinary wear and tear, physical or economical obsolescence or other causes, but excluding costs associated with a Casualty or a Taking. 2.40 "Responsible Insurance Party" means and refers to the Association, with respect to Common Elements, and the Responsible Unit Owner, with respect to the Shared Components. -5- 0 0 2.41 "Responsible Unit Owner" means the Owner of a Unit in which a specified Shared Component is located and who is designated to operate, maintain, repair, improve and insure, as applicable, the applicable Shared Component and to perform such other duties imposed on it hereunder relative to the applicable Shared Component. 2.42 "Restoration" means the repair, restoration, replacement, or reconstruction of any Improvements, structures, fixtures, or equipment that shall be affected by any Casualty or Taking to substantially the same design, condition, and functionality as existed prior to such Casualty or Taking. The term 'Restore' (and related verb forms) shall mean to effect a Restoration. 2.43 "Retail Unit" means and refers to those Units identified by the prefix *RU-* on Exhibit 7 attached hereto. Subject to the provisions hereof, the Retail Units are designed and intended to be used for any purpose permitted by applicable zoning ordinances. References herein to "Units" or "Parcels" shall include the Retail Units unless the context would prohibit or it is otherwise expressly provided. Notwithstanding the designation of the Unit as a "Retail Unit", the name alone shall not restrict its use, as the Retail Units may be used for any lawful purpose. 2.44 'Retail Unit Parking Area' means that portion of Retail Unit RU-A consisting primarily of parking spaces on the 2^d level of the Improvements, as more particularly identified on Exhibit 7 attached hereto. 2.45 "Shared Components" mean those parts of a Unit, which serve and may be used by the Owners of any other Unit and such other Owner's Permittees. The Shared Components are limited to the following as the same now exist and as the same may from time to time exist. (a) ramps, drives and access control systems [depicted on Exhibit 7 as part of the Parking Unit]; (b) the Utility Facilities, including without limitation, water, sewagetwaste, electric, cable/CATV/Intemet/Telephone, which are not owned by third party utility providers or governmental agencies [which are, to the extent depicted on Exhibit 7, part of the applicable Unit where located] (c) any and all Sidewalks and landscaping within, or beyond, the legal boundaries of the Condominium Property [depicted on Exhibit 02" as part of the applicable Retail Unit where located], (d) Central Pass-thru [depicted on Exhibit 7 as part of the applicable Retail Unit where located] (e) Life Safety Systems [within the applicable Unit where located], (f) exterior lighting [depicted on Exhibit 02" within the applicable Unit where located], (g) the Stairways [depicted on Exhibit 7 as part of the applicable Unit where located] and (h) Rooftwater resistant membranes [which are part of the Parking Unit]. 2.46 'Sidewalks" mean and refer to any and all sidewalks, walkways and/or pathways, together with any and all landscaping installed, or to be installed, thereon, located along or upon (even if beyond the legal boundaries of) the Condominium Property. 2.47 "Special Assessment" means such sums in addition to the Assessments which may be assessed directly against all of the Unit Owners in accordance with the provisions and terms of this Declaration. 2.48 "Special Charges' means such sums in addition to the Charges which may be levied or assessed directly against some, but not all Unit Owners, in accordance with the provisions or terms of this Declaration. -6- 01 0 2.49 "Stairways" mean any flight of steps, fire corridors, elevators and/or escalators which are at some point located in more than one Unit and/or within a Unit and a portion of the Common Elements. 2.50 "Taking" means any transfer of title to all or any part of any Unit Owners interest in any Unit or to any Common Elements, or any transfer of possession thereof, pursuant to the exercise of the power of condemnation or eminent domain by any governmental authority or governmental unit, any agency thereof, any public utility company, or any other person granted the power of condemnation under the laws of the United States, the State of Florida, or any political subdivision thereof, whether such transfer is temporary or permanent, and whether the same occurs by force of legal process or by conveyance in lieu thereof, and expressly including any changes in Laws that have the effect of rendering the Condominium Property or any part thereof unusable as part of, or in connection with, the operation of the Clearwater Beach Project in the manner contemplated by this Declaration. 2.51 'Unit" means a part of the Condominium Property which is subject to exclusive ownership, and except where specifically excluded, or the context otherwise requires, shall be deemed to include the Retail Units and the Parking Unit. 2.52 "Unit Owner" or'Owner of a Unit" or'Owne' means a record owner of legal title to a Condominium Parcel. 2.53 "Utility Facilities" mean and include private and public utility lines, systems, or facilities of any type or nature, including wires, pipes, mains, conduits, valves, air handling units, switches, control boxes, breakers, risers, cables, fiber optic lines, shafts and ducts, which supply or are used in the supply of domestic cold and hot water, sanitary sewer service, storm sewer service, chilled water, condenser water, steam, steam condensate, natural gas, compressed air, conditioned and non-conditioned air, ventilation and exhaust air, electricity, fire alarm, emergency communications, systems control and automation, video and other security monitoring, telephone, television, other telecommunications systems, and other mechanical, electrical, and life safety systems, and including all meters for any of the foregoing. 2.54 "Utility Services" shall include, but not be limited to, electric power, gas, water, garbage, sanitary and storm sewage disposal, cable television, telephone service, fire alarm service, emergency communication service, video and security monitoring service, telecommunications, compressed air, air conditioning and other mechanical, electrical and life safety systems. All defined terms (denoted by capitalization or other indication of special definition such as quotation marks) used in this Declaration which are not defined in this Section 2, shall have the meaning set forth elsewhere in this Declaration. 3. Description of Condominium. 3.1 Identification of Units. The Condominium consists of three (3) Units consisting of Two (2) Retail Units ('RU-A" and "RU-B"} and one (1) Parking Unit. The designations of the Retail Unit(s) and Parking Unit are for identification purposes only and are not intended to limit, define or otherwise, directly or indirectly, limit their permitted uses. The designation of each of the Units is set forth on Exhibit 112" attached hereto. Exhibit 02' consists of a survey of the Land, a graphic description of the Improvements located thereon, including, but not limited to, the Improvements upon the Land, and a plot plan thereof. Said Exhibit 7, together with this Declaration, is sufficient in detail to -7- 0 0 identify the Common Elements and each Unit and their relative locations and dimensions. There shall pass with a Unit as appurtenances thereto: (a) an undivided share in the Common Elements and Common Surplus; (b) the exclusive right to use such portion of the Common Elements as may be provided in this Declaration; (c) an exclusive easement for the use of the airspace occupied by the Unit as it exists at any particular time and as the Unit may lawfully be altered or reconstructed from time to time, provided that an easement in airspace which is vacated shall be terminated automatically; (d) membership in the Association with the full voting rights appurtenant thereto; and (e) other appurtenances as may be provided by this Declaration. 3.2 Usage of Shared Components. In any case in which a Shared Component benefits more than one Unit Owner, the right of each such benefited Unit Owner to the use and benefit thereof shall be on a non-exclusive, equal priority basis, such that no benefited Unit Owners use thereof shall unreasonably hinder or encroach upon the lawful rights of another benefited Unit Owner to the use and benefit therefrom or shall violate any rules and regulations of the Association applicable to such Shared Components. Further to the foregoing, no use of the Shared Components may unreasonably interfere with or otherwise disrupt the operations, businesses and/or services being conducted and/or offered from the Retail and/or Parking Units and/or with the use, operation, maintenance, repair and replacement of the Retail and/or Parking Units and its or their facilities. 3.3 Unit Boundaries. (a) Boundaries of the Parking Unit. The upper, lower and perimetrical boundaries of the Parking Unit shall be as graphically depicted on Exhibit 02" attached hereto, as supplemented by the following: (i) Upper Boundaries. The upper boundary of the Parking Unit shall be the horizontal plane parallel to the higher of: (i) elevation 87.17' N.G.V.D or (ii) the horizontal plane parallel to the highest point of any structural improvements located on the Condominium Property. (ii) Lower Boundaries. The lower boundary of the Parking Unit shall be the horizontal plane of the unfinished upper surface of the floor of the Unit to the extent that that floor falls within the perimetrical boundaries at the lowest level. In a multi-story Unit where upper levels have a greater floor area than exists on the lower level, the lower boundary shall, on each applicable upper level, include that portion of the floor of the upper level of the applicable Unit for which there is no corresponding floor on the lower level of the applicable Unit directly below the floor of such top floor). (iii) Perimetrical Boundaries. The perimetrical boundaries of the Parking Unit shall, be as applicable: (a) the vertical planes formed by the interior undecorated unfinished surfaces of all structural walls bounding the Unit extended to their planar intersections with each other and with the upper and lower boundaries; or (b) where there is no wall and the Unit consists in whole or in part of unenclosed space, the vertical plane lying on the survey line defining the Unit as shown on Exhibit 12' hereof, as amended or supplemented, perpendicular to the upper and lower boundaries. -8- • (iv) Proviso. Notwithstanding the foregoing, any and all structural components of the Building, regardless of where located, shall be deemed to be Common Elements, provided, however, that the water resistant roof membranes located on the Building, and any Life Safety Systems located within the Parking Unit shall be deemed part of the Parking Unit. (b) Boundaries of the Retail Units. The upper, lower and perimetrical boundaries of the Retail Units shall be as graphically depicted on Exhibit "2" attached hereto, as supplemented by the following: (i) Upper Boundaries. The upper boundary of each Retail Unit shall be the horizontal plane of the unfinished lower surface of the ceiling of the applicable Retail Unit to the extent that that ceiling falls within the perimetrical boundaries at the uppermost level. In a multi-story Unit where lower levels have a greater ceiling area than exists on the upper level, the upper boundary shall, on each applicable lower level, include that portion of the ceiling of the lower level of the applicable Unit for which there is no corresponding ceiling on the upper level of the applicable Unit directly above the ceiling of such lower level). (ii) Lower Boundaries. The lower boundary of each Retail Unit shall be the horizontal plane of the unfinished upper surface of the floor of the Unit to the extent that that floor falls within the perimetrical boundaries at the lowest level. In a multi--story Unit where upper levels have a greater floor area than exists on the lower level, the lower boundary shall, on each applicable upper level, include that portion of the floor of the upper level of the applicable Unit for which there is no corresponding floor on the lower level of the applicable Unit directly below the floor of such top floor). (iii) Perimetrical Boundaries. The perimetrical boundaries of the Retail Unit shall, be as applicable: (a) the vertical planes formed by the interior undecorated unfinished surfaces of all structural walls bounding the Unit extended to their planar intersections with each other and with the upper and lower boundaries; or (b) where there is no wall and the Unit consists in whole or in part of unenclosed space, the vertical plane lying on the survey line defining the Unit as shown on Exhibit *2" hereof, as amended or supplemented, perpendicular to the upper and lower boundaries. (iv) Apertures: Proviso. Where there are apertures in any boundary, including, but not limited to, windows, doors, bay windows and skylights, all of same shall be deemed part of the applicable Retail Unit. Any Life Safety Systems located within a Retail Unit shall be deemed part of the applicable Retail Unit. Notwithstanding the foregoing, any and all structural components of the Building, regardless of where located, shall be deemed to be Common Elements. 3.4 Advertising Wall Space. By the recordation of this Declaration in the Public Records of the County, the Declarant shall be deemed to have assigned to the owners from time to time of the Retail Units, as a Limited Common Element appurtenant thereto, the right use of the surface of the exterior walls of the ground level of the Building (including the decorative building eyebrow located -9- 0 0 immediately above the ground level of the Building) as well as the interior or exterior surfaces of the windows of any such owner's Retail Unit (the "Advertising Wall Space"), for commercial advertising and/or promotional purposes (including, without limitation, advertisements and promotions for products and/or services which are not offered from the Condominium Property). The applicable Owner from time to time of the Retail Units, or its or their assignee, shall have the right to install signage on, decorate and/or otherwise alter the appearance of the Advertising Wall Space in accordance with the provisions of applicable law. Notwithstanding the foregoing, or anything contained to the contrary herein, no action permitted by this Section Errorl Reference source not found.Errorl Reference source not found. shall affect or impair the structural integrity of the Building. The Association shall be responsible for the maintenance of the structural elements behind the Advertising Wall Space, with the costs of same being a part of the Common Expenses. The applicable Owner from time to time of the applicable Retail Unit, or its or their assignee, shall be responsible for the maintenance of any other portions of the Advertising Wall Space, including, without limitation, the general cleaning and upkeep of the appearance of the Advertising Wall Space. 3.5 Easements. The following easements are hereby created (in addition to any easements created under the Act and any easements affecting the Condominium Property and recorded in the Public Records of the County): (a) Support. Each Unit, and the Improvements, shall have an easement of horizontal, vertical, and lateral support and of necessity, including a non-exclusive easement in and to all structural members, columns, beams, foundations, bad bearing walls, and other structural components located in or constituting part of the Common Elements or another Owner's Unit for the support of such Owner's Unit and each Unit shall be subject to an easement of support and necessity in favor of all other Units, the Common Elements and any other structure or improvement which abuts any Unit or any Improvements. (b) Encroachments. If (i) any portion of the Common Elements encroaches upon any Unit; (ii) any Unit encroaches upon any other Unit or upon any portion of the Common Elements; or (iii) any encroachment shall hereafter occur as a result of (A) settling or shifting of the Improvements; (B) any alteration or repair to the Common Elements and/or Units made in accordance with the terms hereof, or (C) any repair or restoration of the Improvements (or any portion thereof) or any Unit after damage by fire or other Casualty or any Taking by condemnation or eminent domain proceedings of all or any portion of any Unit or the Common Elements, then, in any such event, a valid easement shall exist for such encroachment and for the maintenance of same so long as the Improvements shall stand. (c) Access. Each Unit Owner and its Permittees shall be entitled to, and are hereby granted, the right and nonexclusive easement for ingress and egress to and from the Unit owned by such Unit Owner and any public streets, sidewalks, and walkways within or adjacent to the Condominium Property, over and across the driveways, halls, corridors, Stairways, stairs, ways, the Central Pass-thru, ramps, bridges, escalators, elevators, and exterior access ways, and other areas which are part of the Common Elements or which are portions of Units or Shared Components open to the general public, subject, however, to: (a) the further provisions of this subsection; (b) the right of each Unit Owner to modify or eliminate ingress and egress through portions of its Unit, so long as reasonably equivalent ingress and egress is maintained from each Unit to a public street and right of way in -10- • • compliance with all applicable building codes and regulations and applicable permits and/or to any Shared Component; and (c) the right of each Unit Owner to implement such safety measures as it deems necessary and appropriate. In particular, and without limiting the foregoing: (i) The Retail Unit Owners and its or their Permittees shall be entitled to a perpetual easement over and upon the Parking Unit, including all Shared Component driveway areas, ramps and other vehicular accessways into, out of and through the Parking Unit for purposes of pedestrian and vehicular ingress and egress to and from the entrance to the parking garage contained therein, the Retail Unit Parking Area, the Shared Components and/or the Common Elements, as the case may be (provided, however that the easement shall not be deemed to authorize use of any parking spaces and/or garage offices contained within the Parking Unit). Without limiting the generality of the foregoing, it is understood and agreed that access will be required through the floors of the Building containing the Parking Unit in order to access the Retail Unit Parking Area. Access thereover is expressly permitted hereby, although the easement reserved herein shall not afford any party the right to park within any parking space contained within the Parking Unit Parking within the Parking Unit will be within the sole discretion and control of the Parking Unit Owner, and absent an express agreement for such parking rights, no such parking rights shall exist Additionally, a perpetual easement is hereby reserved in favor of the Association, and its designees, over and upon the Parking Unit and the Retail Unit Parking Area for purposes of performing such maintenance, repairs, and other services as are permitted or required to be performed by the Association, including, but not limited to, maintenance, repair, replacement and alteration of Common Elements, safety and maintenance activities, and enforcement of rules and regulations. (ii) The Retail Unit Owners and its or their Permittees shall be entitled to, and are hereby granted, the right and easement for pedestrian ingress and egress over, across and upon the Parking Unit and the Shared Components as reasonably necessary or convenient to provide access to and from the Parking Unit and/or the Retail Unit Parking Area and the Pass-Thru and/or sidewalks within or adjoining the Condominium Property. Such rights and easements shall include, without limitation, access to and use of the Stairways, the walkways, passageways, corridors, and elevators leading through or from the Parking Unit and/or the Retail Unit Parking Area, subject to such safety provisions, as may be adopted by the Parking Unit Owner with respect to the Parking Unit or the applicable Retail Unit Owner, with respect to the Retail Unit Parking Area, pursuant to the terms of this Declaration. (iii) Each Unit Owner and its Permittees shall be entitled to, and are hereby granted, the right and easement for pedestrian traffic over, through and across such portions of the Common Elements and/or Shared Components as from time to time may be paved and/or designed for such purposes. -11- 0 0 (d) Access for Re air Work. Subject to compliance with Section 9 below, each Unit Owner and the Association shall be entitled to, and are hereby granted, upon reasonable advance notice to the other Unit Owners, an easement and right of access to each Unit, the Shared Components and the Common Elements from time to time as may be reasonably necessary to perform Repair Work to any Unit, Shared Components or Common Element for which such Unit Owner or the Association is responsible or entitled to make repairs pursuant to the provisions of Section 9.1 (excluding all repairs relating to a Casualty or a Taking which are addressed in Section 3.4(i) below), including the temporary erection of scaffolding or lateral supports and ingress and egress for, and the temporary presence of, demolition and construction equipment, machinery, and personnel; provided, that such easements shall not permit any Unit Owner to unreasonably interfere with the use, enjoyment or occupancy of any other Unit, Shared Components or Common Elements, except as may otherwise be agreed in writing by the Owner(s) of the Units or Shared Components affected thereby and by the Association with respect to any Common Elements affected thereby; and provided further, that the Unit Owner performing or causing to be performed any such Repair Work shall (i) be responsible for, and shall indemnify the Owner(s) of the affected Unit(s) and the Association against, all damage or loss to the other Units, Shared Components and/or Common Elements or personal injury or loss of life that may result from the performance of such Repair Work (subject to the provisions of this Declaration), and (ii) prior to commencing any such Repair Work that may affect any other Unit, Shared Components and/or the Common Elements, provide to the Owner(s) of the affected Unit(s) evidence that (A) any special coverages or endorsements to the policy of property damage insurance maintained by the Association pursuant to Section 10 that are reasonably necessary to provide coverage to the Condominium Property in the course of such Repair Work have been obtained and (B) the Unit Owner(s) and its contractors are insured against liability arising as a result of such Repair Work in reasonable and customary amounts in light of the nature and extent of the Repair Work to be performed. In the event of any dispute regarding the amounts or coverages of insurance that may be required under the preceding sentence, the same shall be resolved in accordance with Section 13.2 hereof. If entry is necessitated by a Unit Owner's failure to comply with its obligations with respect to the operation, maintenance, repair, reconstruction, or replacement of any other Unit, Shared Component, Common Elements, Utility Facilities, or other areas, Improvements, or facilities that are the subject of any of the easements granted under this Declaration, then the other Unit Owner(s) or the Association must first comply with the provisions of Section 9.6, prior to undertaking such operation, maintenance, repair, reconstruction or replacement. (e) Utilities. Each Unit Owner shall have, and is hereby granted, a non-exclusive right and easement for the existence, use, enjoyment, repair, replacement, and (to the extent expressly permitted by this Declaration) the relocation and the installation of all Utility Facilities which serve either such Owner's Unit or any Shared Component and which are located (in whole or in part) within, or pass through or under, another Unit or any Common Elements. Each Unit and the Common Elements are hereby subjected to the rights and easements for all Utility Facilities granted by the preceding sentence. Such easements shall exist for all Utility Facilities as presently located within the Condominium Property and as the same may hereafter be located or relocated in accordance with the provisions below and shall be deemed to include rights of access to such Utility Facilities and the use -12- 0 0 of such additional spaces and areas around such Utility Facilities as shall be reasonably necessary to serve the purposes of such easements. The foregoing rights and easements are expressly made applicable to any utilities or other services which are or may become necessary in the future for the proper operation of such Owner's Unit, so long as the use of such easements does not interfere with the use and occupancy of another Owner's Unit or the Common Elements (it being stipulated that the easements for Utility Facilities existing as of the date hereof do not interfere with the use and occupancy of any Units or Common Elements). The Association, on its behalf and on behalf of the Unit Owners, has the right to grant such additional easements for the installation and use of Utility Facilities, and for the relocation of any existing Utility Facilities in any portion of the Property, the Improvements and the Common Elements, as the Association shall deem necessary for the proper operation and maintenance of the Condominium Property, or any portion thereof, or for the general health or welfare of the Unit Owners, or for the purpose of carrying out any provisions of this Declaration; provided, however, that such easements or the relocation of existing easements: (i) will only be performed after thirty (30) days' prior written notice to the Unit Owners, (i) will not unreasonably interfere or diminish the service being supplied to the Unit(s) (excepting reasonable, temporary interference when relocation is necessary), (i) will only be performed during nonbusiness hours, unless performance during business hours cannot be reasonably avoided (it being intended that "business hours" will be different as applied to each Unit, according to when normal use is highest for such Unit), (1) will, to the extent practicable, be located in the public roads and in the Common Elements, and (i) will otherwise comply with the requirements of this Declaration. Any Unit Owner that requires the creation or relocation of such easement(s) shall bear the expense of such creation and/or relocation. Any Unit Owner objecting to the creation or relocation of such easements may pursue Dispute Resolution, in accordance with Section 13.2 hereof. (f) Emergency Easements. Each Unit Owner and its Permitt'ees shall be entitled to, and are hereby granted, the right and easement over, through and across the Condominium Property for emergency ingress and egress to and from any other portion of the Condominium Property, in the event of fire or other emergency. A non-exclusive easement for ingress and egress is hereby granted to all police, sheriff, fire protection, ambulance, and other similar emergency agencies or persons now or hereafter servicing the Condominium Property, to enter upon all streets, driveways, sidewalks, walkways and other public access ways located within the Condominium Property in performance of their duties. Each Unit Owner shall be enttled to, and is hereby granted, a non-exclusive easement for ingress and egress to any Unit or Common Element in the event of any emergency for the purpose of protecting such Owner's Unit, any Utility Facilities serving such Unit, any Common Elements benefiting such Owner, and any persons in, on, or about such Unit or Common Elements and for making emergency repairs that are necessary to prevent damage to the Common Elements or to a Unit, if reasonably practicable, the affected Unit Owner shall be warned of the impending entry, as early as possible. (g) Easements for Equipment. Etc. Each Owner shall have, and is hereby granted, a non-exclusive right and easement for the existence, use, enjoyment, and (to the extent expressly permitted by this Declaration) the installation, repair, replacement and relocation of equipment, appliances, machinery, mechanical, or other systems or areas (if -13- any) that do not constitute Utility Facilities and that serve such Owners Unit, to the extent the same are located (in whole or in part) outside of such Unit and/or are connected to other Units or the Common Elements and provided that the same are situated in an area used exclusively for mechanicals or in a location approved, in writing, by the burdened Unit Owner. Each Unit and the Common Elements are hereby subjected to the rights and easements granted by the preceding sentence. Such easements shall be deemed to include rights of access to the foregoing and the use of such additional spaces and areas around such equipment, appliances, machinery, mechanical and other systems or areas as shall be reasonably necessary to serve the purposes of such easements. (h) Easements over Common Elements. Each Unit Owner shall have and is hereby granted a non-exclusive easement in, over and through the Common Elements to use such Common Elements for their intended purposes, subject to the right of the Association to promulgate rules and regulations governing the use and enjoyment thereof, as and to the extent permitted hereby. (i) Easements over Shared Components. Each Unit Owner shall have and is hereby granted a non-exclusive easement in, over and through the Shared Components to use such Shared Components for their intended purposes, subject to the right of the Responsible Unit Owner to promulgate rules and regulations governing the use and enjoyment thereof, as and to the extent permitted hereby. (j) Easements for Restoration or Reconstruction in the Event of a Casualty or a Taking. Subject to the provisions of this Declaration, each Unit Owner shall have and is hereby granted perpetual, non-exclusive easements, in, upon, over, under, across and through the Common Elements and (to the extent reasonably necessary) any Unit(s), to remove, demolish, Restore, reconstruct, and/or replace any and all buildings, structures, fixtures, equipment, and other improvements within the building or its Unit or which constitute a Common Element or a Shared Component that may be damaged or rendered non-functional due to a Casualty or to a Taking, including the temporary erection of scaffolding or lateral supports and ingress and egress for, and the temporary presence of, demolition and construction equipment, machinery, and personnel; provided, that such easements shall not permit any Unit Owner to unreasonably interfere with the use, enjoyment or occupancy of any other Unit or Common Elements, except as may otherwise be agreed in writing by the Owner(s) of the Units affected thereby and by the Association with respect to any Common Elements affected thereby; or may be necessary to complete any Restoration required by this Declaration, so long as the Responsible Unit Owner uses reasonable efforts to minimize any interference with other Units and the Common Elements; and provided further, that the Unit Owner performing or causing to be performed any such work shall (i) be responsible for, and shall indemnify the Owner(s) of the affected Unit(s) and the Association against, all damage or loss to the other Units and Common Elements and personal injury of loss of life that may result from the performance of such work (subject to the provisions of this Declaration), and (i) prior to performing any such work that may affect any other Unit or the Common Elements, provide to the Owner(s) of the affected Unit(s) evidence that (1) any special coverages or endorsements to the policy of property damage insurance maintained by the Responsible Unit Owner pursuant to Section 10.1 that are reasonably necessary to provide coverage to the Condominium Property in the course of such work have been obtained and (2) the -14- 0 0 Responsible Unit Owner and its contractors are insured against liability arising as a result of such work in reasonable and customary amounts in fight of the nature and extent of the work to be performed. In the event of any dispute regarding the amounts or coverages of insurance that may be required under the preceding sentence, the same shall be resolved in accordance with Section 13.2 hereof. (k) Easement for Mortgagees. Any holder of a mortgage, its officers, agents, and employees, shall be entitled to, and are hereby granted, a blanket, perpetual and non-exclusive easement to enter the Condominium Property or any part thereof to inspect the condition and repair of the Common Elements or any Units so encumbered by a mortgage held by it. This right shall be exercised only during reasonable daylight hours, and then, whenever practicable, only after advance notice to and with permission of the Board of Directors (as to Common Elements) and the Unit Owners whose Units are to be inspected. Except in the event of emergencies, the rights accompanying the easements provided for in this paragraph shall be exercised only during reasonable hours and then, whenever practicable, only after advance notice to and with permission of the Unit Owner(s) directly affected thereby. (1) Easement for Services. Each governmental agency and utility service provider shall be entitled to, and is hereby granted, a blanket, perpetual and non-exclusive easement in, upon, over, across and through the Common Elements and public spaces and easement areas within the Units, for the purpose of maintaining, repairing, servicing and replacing all Utility Facilities and other items in the nature of Utility Facilities that are owned by such agency or utility provider, which such governmental agency or utility service provider is responsible for maintaining, repairing, servicing, or replacing. Except in the event of emergencies, the rights accompanying the easements provided for in this paragraph shall be exercised only during reasonable hours and then, whenever practicable, only after advance notice to and with permission of the Unit Owner(s) directly affected thereby. (m) Additional Easements. If at any time after the date hereof additional emergency exits are required by Law or by insurance underwriting requirements generally applicable to commercial and/or retail projects, or (A) any additional easements for access to or use, repair, and replacement of Utility Facilities now or hereafter existing are reasonably necessary for the use and operation of any one or more Units, or (B) any additional easements are required to complete any Restoration required under this Declaration, or (C) any other additional easements are necessary or desirable to effectuate the purposes of this Declaration, each Unit Owner shall, within a reasonable time after written request therefor by any other Unit Owner, grant such easement; provided (i) no Unit Owner granting any such easement is required to construct improvements, expend any monies, or incur other material liabilities in order to provide such easement (other than costs paid solely by the Unit Owners for whose benefit such easement is to be granted), (ii) such easement will not materially increase expenses, or create any material additional expenses, for any portion of the Condominium Property (unless permanently allocated to and paid by the Owner for whose benefit such easement is to be granted), and (iii) the use of such easement will not unreasonably interfere with the operation, use or enjoyment of such Owner's Unit or violate or interfere with the rights or interests of such Unit Owner's Permittees. The Unit Owners requesting any such easement shall pay all costs and expenses in connection with the approval and granting of any such easement, including -15- all engineering fees, recording charges, and legal fees and expenses reasonably incurred by the Unit Owners or any of them in connection therewith. If new easements are created, this Declaration shall be amended, if necessary, by the Unit Owners or by the Association, as the case may be, and such easements shall have the same force, effect and priority as if such easements were originally contained herein. (n) Easements Deemed Appurtenant. The easements, uses, and rights created herein for a Unit Owner shall be appurtenant to its Unit, and all conveyances of and other instruments affecting title to a Unit shall be deemed to grant and reserve the easements, uses and rights provided for herein, even though no specific reference to such easements, uses, and rights appears in any such instrument. Each Unit Owner whose Unit is subject to an easement created by this Declaration may use the easement area for any purposes permitted in this Declaration not inconsistent with such easement and shall also have the right to temporarily interrupt the use of such easements as may be necessary in order to perform Repair Work to Common Elements or Units, provided that the temporary interruption does not materially, interfere with the use and occupancy of another Owner's Unit or the Common Elements. Each Unit Owner shall have the right to relocate any easement burdening its property at its expense, so long as it provides an adequate replacement easement which does not materially interfere with the use and occupancy of another Owner's Unit or the Common Elements. (o) Savings Clause. Should the intended creation of any easement described in this Declaration fail by reason of the fact that, at the time of creation, there may be no grantee in being having the capacity to take and hold such easement, then such grant of easement shall be considered as having been granted directly to the Association for the purpose of allowing the original party or parties to whom the easements were originally granted the benefit of such easement and the Unit Owners and their mortgagees designate the Association as their lawful attomey-in-fact to execute any instrument on their behalf as may hereafter be required or deemed necessary for the purpose of creating such easement. (p) Indemn'. Declarant, during the time it owns any of the Units, hereby covenants and agrees, and each Unit Owner thereafter, by acceptance of a deed for its Unit, whether or not it shall be so expressed in any such deed, including any purchaser at a judicial sale, shall hereafter be deemed to covenant and agree, to (i) repair any damage suffered by a Unit Owner(s) as a result of its or its Permittees' use of any easement set forth in Section 3.4 or elsewhere in this Declaration, and (ii) reimburse, indemnify and hold the Unit Owner(s) whose Unit was damaged harmless for any loss, action, claim, expense, injury, liability, judgment, fine or damages arising from or relating to the exercise of such easement(s) by the indemnifying Unit Owner, their agents, employees and/or contractors, except any loss, action, claim, expense, injury, liability, judgment, fine or damage arising from the action or inaction of the Unit Owner(s) so indemnified. -16- • • 4. Restraint Upon Separation and Partition of Common Elements. The undivided share in the Common Elements and Common Surplus which is appurtenant to a Unit shall not be separated therefrom and shall pass with the We to the Unit, whether or not separately described. The appurtenant share in the Common Elements and Common Surplus, except as elsewhere herein provided to the contrary, cannot be conveyed or encumbered except together with the Unit. The respective shares in the Common Elements appurtenant to Units shall remain undivided, and no action for partition of the Common Elements, the Condominium Property, or any part thereof, shall lie, except as provided herein with respect to termination of the Condominium. 5. Ownership of Common Elements and Common Surplus and Share of Common Expenses: Voting Rights 5.1 Percentage Ownership and Shares. The undivided percentage interest in the Common Elements and Common Surplus, and the percentage share of the Common Expenses, appurtenant to each Unit, is as set forth below: Unit % Share Parking Unit 50% Retail Unit A 35% Retail Unit B 15% 5.2 Allocated Interest in Shared Components. The Allocated Interest of each Unit in each of the Shared Components is as set forth on Exhibit "3" attached hereto. In the event of a material change in the usage of a Shared Component or in the size of a Unit, improvements within a Unit, or the reconstitution of two or more Units, the Unit Owners affected thereby shall make a good faith effort to equitably reallocate the Unit Owners' Allocated Interests in said Shared Components. If the affected Unit Owners are unable to agree on an equitable reallocation of any Allocated Interest within 30 days after the occurrence of the material change, the provisions of Section 13.2 hereof shall govern. 5.3 Votin . Each Unit Owner shall be a member of the Association and shall be entitled to cast one (1) vote on all matters upon which the membership shall be entitled to vote. All votes shall be cast by the Owner in accordance with the provisions of the By-Laws and Articles of the Association. All actions of the Association, unless otherwise provided in the By-Laws, shall require unanimity of Unit Owners. In the event, however, that the requisite unanimous vote is not obtained with respect to a matter that one Unit Owner, in good faith, believes will result in an act or omission that will have a material adverse effect on the Condominium Property as a whole or on the Unit, such Unit Owner shall have the right to implement dispute resolution procedures in accordance with Section 13.2 hereof. The question to be submitted to the Board of Directors and, if necessary, to an arbitrator, for dispute resolution in accordance with Section 13.2 hereof shall be whether or not the act or omission resulting from the failure to obtain a unanimous vote will have a material adverse effect on the Condominium Property as a whole or on a Unit. If the Board or the arbitrator (as applicable) determines that there is no significant likelihood of such a material adverse effect, the Unit Owner who initiated the dispute resolution shall pay all costs associated therewith, including without limitation, the costs of all other parties to the dispute and no further dispute resolution shall be conducted with respect to such dispute and the Unit Owner or Unit Owners who initiated the -17- • • dispute resolution shall have no further recourse or right to seek to avoid the act or omission resulting from the failure of the Unit Owners to unanimously agree. If the Board or the arbitrator (as applicable) determines, however, that there is a risk of a material adverse effect on the Condominium Property or on the Unit, then it shall proceed to determine the most effective means of avoiding the act or omission, in accordance with Section 13.2, as if a dispute existed between the Owners as to the most effective means. Assessments; Special Assessments; Charges; Special Charges 6.1 Assessments and Charges (a) Determination of Common Expenses and Foxing of Assessments. The Board of Directors shall prepare a condominium budget, in accordance with the Act, on a calendar year basis. The budget shall be distributed to the Unit Owners on or before October 31 preceding the year for which the budget is effective. Based upon the budget and consistent with each Unit Owner's Percentage Share, the Board shall determine each Units Assessment and Charges (to the extent possible). The Board of Directors shall advise each Unit Owner promptly in writing of the amount of its Assessment and Charges, which amounts shall be payable monthly to the Association. (b) Determination of Charges for expenses of Shared Components. The Charges and expenses with respect to each Shared Component shall not be included in the Budget or the Assessments but shall be allocated between the Unit Owners in proportion to each Unit Owner's Allocated Interest in the applicable Shared Component and shall be funded in accordance with Section 9.1(c) below. The Responsible Unit Owner for a particular Shared Component shall prepare an Allocated Expense budget for said Shared Component on a calendar year basis to be delivered to the Association for distribution to the Unit Owners with the budget described in Section 6.1(a). Payment of Allocated Expenses shall not be monthly but, instead, shall only be required of the benefited Unit Owners in sufficient time to enable the Responsible Unit Owners to pay Allocated Expenses as they come due, but in no event less than ten (10) days prior to the payment date provided in applicable invoices. Payment of Allocated Expenses shall be tendered to the Responsible Unit Owner or to a third party management or maintenance company selected by the Responsible Unit Owner. (c) Determination of Charges. A Unit Owner's share of Charges will vary with the nature of the Charges. Charges related to Common Expenses will be allocated according to each Units Percentage Shares. Charges related to Shared Components will be allocated according to each Units Allocated Interest in any Shared Components. All other Charges shall be allocated as otherwise provided in this Declaration. To the greatest extent possible, Charges shall be included in the budget described in Section 6.1(a) above. (d) Payment of Assessments. Charges and Allocated Expenses. (i) Declarant, for each Unit owned by it, hereby covenants and agrees and each Unit Owner, by acceptance of a deed for its Unit, whether or not it shall be so expressed in such deed, including any purchaser at a judicial sale, shall hereafter be deemed to covenant and agree to pay all Assessments, Allocated Expenses and Charges (which Charges shall include but not be limited to -18- Charges arising out of Allocated Expenses) for the operation of the Association and Shared Components and for the maintenance, management, operation and insurance of the Condominium Property imposed on it under this Declaration, including such reasonable reserves as the Association may deem necessary as to Common Elements (or the Responsible Unit Owner may deem necessary as to any Shared Components), capital improvements assessments or charges, maintenance assessments or charges, and all other Charges and Assessments herein referred to or lawfully imposed by the Association or by a Responsible Unit Owner, all such Assessments, Allocated Expenses and Charges to be fixed, established and collected from time to time as herein provided. All such Charges, Allocated Expenses and Assessments, together with interest thereon and costs of collection thereof, shall be a charge on the Land and shall be a continuing lien upon the Unit against which each such Assessment, Allocated Expense or Charge is made. Each such Assessment and Charge, together with such interest thereon and costs of collection thereof, shall also be the personal obligation of the person or entity who is the Owner of such Unit at the time when the Assessment or Charges fall due and all subsequent Owners of said Unit until paid. (ii) The foregoing provisions are independent covenants running with the Land between and among the Association, each Responsible Unit Owner and each Unit Owner, and the power to impose and enforce all Charges and Assessments, as provided herein, is in addition to and not pursuant to or in reliance on the Act. (e) Revisions to Budget, Enforcement. Any budget adopted by the Association may be revised from time to time by the Association to cover actual expenses. The Association shall assess each Unit its share of the Common Expenses and Allocated Expenses (if the same are not paid in accordance with Section 6.1(b)), and shall enforce collection of same so that at all times the solvency of the Association, pursuant to generally accepted accounting principles, consistently applied, is maintained and assured. 6.2 Special Assessments and Special Charges. Declarant, for each Unit owned by it, hereby covenants and agrees, and each Unit Owner, by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, including any purchaser at a judicial sale, shall hereafter be deemed to covenant and agree: (a) to pay the Association any Special Assessments imposed by the Board and any Special Charges imposed by a Responsible Unit Owner against any or all of the Units, pursuant to this Declaration, including, but not limited to a Special Assessment or Special Charge for reconstruction (Section 6.6), failure to pay a charge or cost attributable to a Shared Component (Section 6.1(b)), correction of a violation (Section 6.7), repayment for utility services (Section 6.8), failure to pay its share of insurance expenses to secure liability insurance or to secure liability insurance with the required coverage (Section 10), failure to correct a deviation from the plans and specifications (Section 9), failure to maintain a Unit or a Shared Component (Section 9.2), as well as the cost of emergency repairs, and such other matters as are provided under this Declaration, in accordance with the provisions of this Declaration; (b) that such Special Assessment and Special Charges shall be a charge on the Land and a continuing lien on the affected Unit, (c) that such Special Assessment and Special Charges together with such interest thereon and costs of collection thereof shall also be an obligation of the Owner of the Unit at the time when the Assessment or Charge falls due and an obligation of all subsequent Owners of said -19- Unit until paid, and (d) that such Special Assessment and/or Special Charge may be enforced in the manner set forth in this Declaration. The foregoing provisions are independent covenants running with the Land between and among the Association, each Responsible Unit Owner and each Unit Owner, and the power to impose and enforce Special Assessments and Special Charges, as provided herein, is in addition to and not pursuant to or in reliance on the Act. 6.3 Lien for Assessment and Special Assessment. The Association and a Responsible Unit Owner shall have a lien against a Unit upon recording a claim of lien in the Public Records of the County, for any unpaid Assessment(s), Changes, Special Assessment(s) and/or Special Charges against the Owner thereof, and for interest accruing thereon, which lien shall also secure reasonable attorneys fees incurred by the Association or the collecting Unit Owner incident to the collection of such Assessment or Charge, or enforcement of such lien, whether or not legal proceedings are initiated, and if initiated, on the trial court and appellate levels. Such claims of lien, if made by the Association, may be signed and verified by the President and a Vice President or Secretary of the Association. Upon full payment, the party making payment shall be entitled to a recordable satisfaction of lien, to be prepared and recorded at its expense. All such liens shall be subordinate to the lien of mortgages recorded prior to the date of recording the claim of lien, and all such liens may be foreclosed by suit brought in the name of the Association or the Responsible Unit Owner (as applicable) in like manner as a foreclosure of a mortgage on real property. Subject to the provisions of Section 19.11, the Association and a Responsible Unit Owner may, at its option, sue to recover a money judgment for unpaid Assessments or Charges without thereby waiving the lien securing the same. 6.4 Interest: Application of Payments. Assessments, Charges, Special Assessments and Special Charges, and installments on such Assessments, Charges, Special Assessments and Special Charges paid on or before ten (10) days after the date when due shall not bear interest, but all sums not paid on or before ten (10) days after the date when due shall bear interest at the Prime Rate, plus three (3%) percent, but in no event higher than the highest rate permitted by law. All payments on account shall be first applied to interest, and then to the Assessment, Charge, Special Assessment or Special Charge payment first due. 6.5 Commencement. The Assessments, Charges, Special Assessments and Special Charges provided for in this Section 6 shall be due and payable on the date or dates fixed by the Board of Directors of the Association (as to Assessments and Special Assessments), as provided in the resolution authorizing the applicable Assessment or Charge, or by the Responsible Unit Owner (as to Charges and Special Charges). 6.6 Reconstruction Assessment. Unless the decision has been made pursuant to Section 15 to terminate the Condominium, upon the occurrence of a Casualty or a Taking, the Board shall impose a Special Charge on the Owner of a damaged Unit if at any time it is determined by the Board that: the deductible contributed by said Unit Owner in accordance with Section 10 and the proceeds of insurance are not sufficient to pay (a) the estimated or actual costs of Restoration of the Unit; or (b) N said Unit Owner has elected not to Restore its Unit, (i) the estimated or actual costs of the Restoration of any Common Elements or Shared Components which said Unit Owner is required to Restore; and/or (ii) any costs associated with the requirements of Sections 11.2 and 11.3. Such Special Charge shall (A) be a charge on the Land and a continuing lien on the affected Unit, (B) be an obligation of the Owner of the Unit at the time when the Charge falls due and an obligation of all subsequent Owners of said Unit until paid, and (C) may be enforced in any manner -20- 9 9 set forth in this Declaration. The foregoing provisions are independent covenants running with the Land between and among the Association and each Unit Owner, and the power to impose and enforce Special Charges, as provided herein, is in addition to and not pursuant to or in reliance on the Act. 6.7 Violation of Declaration. The Board may impose a Special Charge on a Unit Owner to pay the cost to correct a violation by said Unit Owner of the Declaration, the Association rules and regulations, and/or any Laws, after said Unit Owner has received written notice from the Association of such violation and reasonable opportunity to cure. Such Special Charge shall (i) be a charge on the Land and a continuing lien on the affected Unit, (ii) be an obligation of the Owner of the Unit at the time when the Charge falls due and an obligation of all subsequent owners of said Unit until paid, and (iii) may be enforced in any manner provided in this Declaration. The foregoing provisions are independent covenants running with the Land between and among the Association and each Unit owner, and the power to impose and enforce Special Charges, as provided herein, is in addition to and not pursuant to or in reliance on the Act. 6.8 Utilities. Each Unit Owner shall pay for said Unit Owner's own use of any and all utilities. To the extent that any portion of a Unit is not submetered, it shall be the obligation of the Owner of that Unit to cause said portion to be submetered, and prior to the submetering, the Responsible Unit Owner shall, in its reasonable discretion, equitably attribute Utility costs to the portion of the Unit which is not submetered and the Responsible Unit Owner shall be obligated to pay any amount so attributed. Any Utility Facilities which serve the Shared Components shall be treated as part of the Shared Components and allocated among the Units according to the Allocated Interests. Any Utility Facilities which serve the Common Elements shall be treated as part of the Common Expenses and allocated among the Units according to the Percentage Shares. 6.9 Certificate of Unpaid Assessments. Within fifteen (15) days after written request by a Unit Owner or mortgagee of a Unit, the Association or Responsible Unit Owner, as applicable, shall provide a certificate stating all Assessments, Charges and other moneys owed to the Association and/or Responsible Unit Owner by the Unit Owner with respect to his or her Unit. 6.10 Application of Payments. Any payments received by the Association from a delinquent Unit Owner shall be applied first to any interest accrued on the delinquent installment(s) as aforesaid, then to any costs and reasonable attorneys' fees incurred in collection and then to the delinquent and any accelerated Assessments. The foregoing shall be applicable notwithstanding any restrictive endorsement, designation or instruction placed on or accompanying a payment. 7. Operation of the Condominium by the Association; Powers and Duties. 7.1 Powers and Duties. The Association shall be the entity responsible for the operation of the Common Elements and the Association Property. The powers and duties of the Association shall include time set forth in the By-Laws and Articles of Incorporation of the Association (which By- Laws and Articles are attached hereto as Exhibits 14" and "5", respectively), as amended from time to time. 7.2 Restraint U n Assignment of Shares in Assets. The share of a Unit Owner in the funds and assets of the Association cannot be assigned, hypothecated or transferred in any manner except as an appurtenance to his or her Unit. -21- 0 9 7.3 Approval or Disapproval of Matters. Whenever the decision of a Unit Owner is required upon any matter, whether or not the subject of an Association meeting, that decision shall be expressed by the same person who would cast the vote for that Unit if at an Association meeting, unless the joinder of all record Owners of the Unit is specifically required by this Declaration or by law 7.4 Limitation Upon Liability of Association. Notwithstanding the duty of the Association to maintain and repair parts of the Condominium Property, the Association shall not be liable to Unit Owners for injury or damage, other than for the cost of maintenance and repair, caused by any latent condition of any portion of the Condominium Property to be maintained by the Association. Further, the Association shall not be liable for any such injury or damage caused by defects in design or workmanship or any other reason connected with any additions, alterations or improvements or other activities done by or on behalf of any Unit Owners. The Association also shall not be liable to any Unit Owner or lessee or to any other person or entity for any property damage, personal injury, death or other liability on the grounds that the Association did not obtain or maintain insurance (or carried insurance with any particular deductible amount) for any particular matter where: (i) such insurance is not required hereby; or (ii) the Association could not obtain such insurance at reasonable costs or upon reasonable terms. 8. Use Restrictions. In order to provide for congenial use of the Condominium and Association Property and for the protection of the values of the Units, the use of the Condominium Property shall be restricted to and shall be in accordance with the following provisions: 8.1 Use. The Units may be used only in accordance with applicable zoning requirements and for any lawful purpose by the Owners thereof and their guests, tenants and invitees. Except only to the extent that same may be unlawful or otherwise be deemed a nuisance, the Unit Owners shall be permitted to (i) operate from the Units twenty four (24) hours each day, seven (7) days each week, and fifty two (52) weeks each year, (ii) accept deliveries to, and deliver merchandise, or other items necessary for the operations of the Units, as applicable, from the Units at any and all times, (iii) operate the Units, and conduct business from the Units in a manner consistent with other similar establishments in Florida, and in a manner that parking, lighting, signage, and convenient access by invitees/customers is consistent with that of such other similar establishments. Further, it is understood and agreed that any such operations are expressly permitted hereunder and shall in no event be deemed a nuisance hereunder. The foregoing two (2) sentences shall be interpreted liberally to allow the Unit Owners broad discretion in operating from the Units and may not be amended (nor may any other provision of the Declaration, the Articles, By-Laws or any rules be amended which may limit or derogate the broad rights herein granted) without the affirmative vote of eighty percent (80%) of all of the voting interests in the Condominium. 8.2 Use of Common Elements and Association Property. The Common Elements and Association Property shall be used only for furnishing of the services and facilities for which they are reasonably suited and which are incident to the use of Units. There shall be no obstruction of the Common Elements nor shall anything be stored in or upon the Common Elements without prior consent of the Association. Without limiting the foregoing, no vehicles may be parked on the Condominium Property in such a manner as to impede or prevent ready access to any entrance to or exits from the Units or parking areas by any other vehicle. No Unit Owner or occupant shall build, plant, or maintain any matter or thing upon, in, over or under the Common Elements without the prior written consent of the Association. -22- 0 0 8.3 Nuisance. No noxious or offensive activities shall be carried on, in or upon the Common Elements or in any Unit nor shall anything be done therein either willfully or negligently which may be or become a nuisance to the other Unit Owners or occupants in the Condominium Property. No unlawful use shall be made of any Unit; and all valid laws, zoning ordinances and regulations of all governmental bodies having jurisdiction thereover shall be observed, including but not limited to compliance with the provisions of the Environmental Cleanup Responsibility Act of the State of Florida, if applicable, or any other law dealing with usage of such space. No nuisance shall be allowed upon or within the Condominium Property, nor any use or practice which interferes with the peaceful possession and proper use of the Condominium Property. 8.4 Alteration. Except as otherwise permitted herein, nothing shall be done to any Unit or on or in the Common Elements which will impair the structural integrity of the Clearwater Beach Project. Each Unit Owner shall use best efforts to avoid disruption to the business and activities of other Unit Owners from any and all work relating to any additions, alterations or improvements that a Unit Owner shall elect to make or perform from time to time. 8.5 Floor Load. No Unit Owner shall place more weight on any floor or on the roof of any part of its Unit or the Clearwater Beach Project than the same was designed to hold. 8.6 Environmental Matters. Nothing shall be done in any Unit or on or in the Common Elements which will result in a violation of any applicable rules or regulations issued by the Department of Environmental Protection or any other governmental agency having jurisdiction thereof. If it is determined that a clean up and/or deposit of monies and/or remedial action is required by any governmental entity having jurisdiction thereof, then, (a) in the event such is required for any Unit, that Unit Owner shall take all necessary steps, and shall be financially responsible therefor, which shall include the cost of said cleanup and/or deposit of monies and/or remedial action; (b) in the event such is required for any Common Element, the Association shall take all necessary steps, and shall be financially responsible therefor, which shall include the cost of said cleanup and/or deposit of monies and/or remedial action; and/or (c) in the event such is required for any Shared Component, the Responsible Unit Owner shall take all necessary steps, and the Unit Owners benefiting from such Shared Component shall be financially responsible therefor in proportion to the Allocated Interest for the applicable Shared Component, which shall include the cost of said cleanup and/or deposit of monies and/or remedial action. 8.7 Trash Disposal. No portion of the Common Elements or other portions of the Condominium Property shall be used or maintained for the dumping of rubbish or debris. Trash, garbage or other waste shall be disposed of in the trash containers designated or approved by the Association or otherwise disposed of in accordance with all Laws. 8.8 No Improper Uses. No unlawful use shall be made of the Condominium or Association Property or any part thereof, and all valid laws, zoning ordinances and regulations of all govemmental bodies having jurisdiction thereover shall be observed. Violations of laws, orders, rules, regulations or requirements of any governmental agency having jurisdiction thereover, relating to any portion of the Condominium and/or Association Property, shall be corrected by, and at the sole expense of, the party obligated to maintain or repair such portion of the Condominium Property, as elsewhere herein set forth. Notwithstanding the foregoing and any provisions of this Declaration, the Articles of Incorporation or By-Laws, the Association shall not be liable to any person(s) for its failure to enforce the provisions of this Section 8.8. Nothing shall be done or kept in any Unit or in or upon -23- • • the Common Elements which will increase the rates of insurance for the Association or any other Unit Owner beyond the rates normally applicable to properties of like kind, character, and use, without the prior written consent of the Association. No Unit Owner shall permit anything to be done or kept in the Unit or in or upon the Common Elements which will result in the cancellation of insurance for the Association or any other Unit Owner, or which will be in violation of any Law. 8.9 Relief by Association. The Association shall have the power (but not the obligation) to grant relief in particular circumstances from the provisions of specific restrictions contained in this Section 8 for good cause shown. 9. Maintenance and Repairs, Replacement, Alteration and Improvement. 9.1 Maintenance and Repairs. Responsibility for maintenance and repair (excluding repairs necessitated by a Casualty or a Taking) of the Condominium Property in a manner consistent with the overall first class standards of the Clearwater Beach Project shall be as follows: (a) Maintenance and Repair of the Common Elements. The Association shall be responsible for the maintenance and repair of the Common Elements. In furtherance of the foregoing, with respect to those U614 Facilities constituting Common Elements, the Association hereby appoints the Unit Owner of each Unit in which any such Utility Facilities are located, and each such Unit Owner hereby accepts said appointment, to inspect, test, maintain and repair such Common Elements at the Association's expense. (b) Maintenance and Repair by the Unit Owner. The Unit Owner shall inspect, test, maintain and repair at its expense: W All portions of its Unit (including landscaping and fire pumps) and all Common Elements located within its improvements, excluding the Shared Components, which shall be maintained and repaired pursuant to Section 9.1(c). (ii) Any portion of conduits, ducts, plumbing, wiring or similar installations required for the transmittal or return of utilities, plumbing, air conditioning, mechanical, electrical or other services located within such Unit and servicing solely that Unit, or located outside such Unit but servicing solely that Unit. (iii) Any exterior sign (other than monument signs) shall be maintained and repaired by the Owner of the Unit where the sign is affixed subject to Rules and Regulations promulgated by the Association. In the event that a Unit Owner elects to have a sign on its Unit removed, and there is no immediate expectation of replacing such sign with a new sign, such Unit Owner shall be responsible for all costs and expenses involved in the removal of said sign and the restoration of the exterior of its Unit to a condition comparable to the balance of the exterior of such Unit, in a prompt and workmanlike manner. The foregoing notwithstanding, in the event a component of a Unit is located in space that is non-contiguous or not physically connected to said Unit and said component requires emergency repairs, the failure to repair having an immediate adverse affect on any other Unit, then, and in that event, any Owner of a Unit may make emergency repairs to the component, if the Responsible Unit Owner fails to act on an emergency basis and -24- 0 0 provided the acting Unit Owner provides the Responsible Unit Owner with as much advance notice as is reasonably practicable. Such emergency repairs shall be made in a good, first-class and workmanlike manner, consistent with the overall quality of the Clearwater Beach Project. The Responsible Unit Owner shall promptly reimburse the Unit Owner who made such repairs for all reasonable costs associated therewith. (c) Maintenance. Operation and Repair of Shared Components. Whenever a Shared Component shall require maintenance, service, replacement or repair, then, the Responsible Unit Owner shall be responsible for any operation, maintenance, service, replacement and Repair Work for such Shared Component and the other Unit Owners shall reimburse the Responsible Unit Owner for the Allocated Expenses incurred in connection therewith in accordance with Section 6.1(b) above. (i) Obligations of Responsible Unit Owner. The Responsible Unit Owner shall inspect, test, maintain and repair the Shared Components for which it is responsible, in accordance with the standards set forth in Section 9.1(d). The duties and obligations of a Responsible Unit Owner are independent and shall continue as obligations and duties of the Responsible Unit Owner regardless of whether the Responsible Unit Owner is then presently operating its businesses at or from said Owner's Unit. An easement over and upon the Units and the Common Elements is hereby reserved in favor of the Responsible Unit Owner to effect such purposes. (ii) Self Help Remedies. The foregoing notwithstanding, any Unit Owner who is not responsible for the maintenance or repair of a Shared Component shall have the right to make emergency repairs to said Shared Component if the Responsible Unit Owner fails to act on an emergency basis and provided the acting Unit Owner provides the Responsible Unit Owner with as much advance notice as is reasonably practical. Such emergency repairs shall be made in a good, first-class and workmanlike manner, consistent with the overall quality of the Clearwater Beach Project and such "self-help" repair rights shall not affect the Allocated Interests. An easement over and upon the Units and the Common Elements is hereby reserved in favor of such Unit Owner to effect such purposes. (iii) Default Remedies. If default shall be made in the payment of an Owner's obligation to pay to the Responsible Unit Owner its Allocated Expenses or in the payment of any other sum required to be paid by an Owner to the Responsible Unit Owner under this Section 9.1(c), and such default shag continue for five (5) business days after written notice to the defaulting Unit Owner, then the Responsible Unit Owner may treat the occurrence of any one or more of the foregoing events as a breach of this Section 9.1(c), and in such event the Responsible Unit Owner shall have a lien against the defaulting Units and such other rights granted a'Responsible Unit Owner" in Sections 6.1(d) and 6.3 of the Declaration and may enforce such lien as provided therein. If default shall be made in performance of the obligations of the Responsible Unit Owner set forth in this Section 9.1(c) and such default shall continue for thirty (30) days (unless such default cannot be cured within thirty (30) days, in which event, so long as the Responsible Unit Owner is diligently pursuing a cure, such default shall be -25- 0 0 allowed to continue for an additional thirty (30) days), then the other Unit Owners may treat the occurrence of any one or more of the foregoing events as a breach of this Section 9.1(c), and thereupon, at its option may, with or without notice or demand of any kind to the Responsible Unit Owner or any other person, cause such default to be cured and bill the Responsible Unit Owner for its share of the same, in which case the curing Unit Owner shall have a lien against the Unit of the Responsible Unit Owner and such other rights granted a "Responsible Unit Owner' in Sections 6.1(d) and 6.3 of the Declaration and may enforce such lien as provided therein. (d) Standards. All such inspections, testing, maintenance and repairs conducted (i) pursuant to Section 91(a), shall be performed by the Association, and (ii) pursuant to Sections 9.1(b) and 9.1(c), shall be performed by the Responsible Unit Owner. (a) in a prompt, good and workmanlike manner consistent with the overall first class standards of Clearwater Beach Project; (b) in a manner which minimizes any interruption of the operation of the Unit(s) and the Common Elements and the services provided to said Unit(s) and Common Elements and without unreasonably disturbing the rights of the Unit Owner(s) and their Permittees; and (c) after not less than twenty-four (24) hours prior written notice to the affected Unit Owner, except in the case of emergency where only such notice as is reasonable under the circumstances shall be required. In the event there is a question as to whether the standards set forth here have been satisfied, a decision pursuant to the Dispute Resolution Plan described in Section 13.2 shall be determinative. 9.2 Replacement. In the event that a portion of a Common Elements or a Shared Component must be replaced as a result of ordinary wear and tear, the same party who has the responsibility to maintain and repair such items shall have the responsibility to replace same and the costs thereof shall be allocated among the Unit Owners in proportion to each Unit Owners Percentage Share, if the replacement is of all or a portion of a Common Element, or in proportion to each Unit Owners applicable Allocated Interest, if the replacement is of all or a portion of a Shared Component. 9.3 Alteration and Improvement. (a) Interior of the Unit. Each Unit Owner has the right to change the interior design and/or arrangement of the Unit it owns provided, however, that the following requirements are satisfied in each instance: such change is in compliance with all Laws. Unless all other Unit Owners consent in writing, such change shall not: (1) compromise an easement for support relied upon by any otter Unit or a Common Element, (2) impair the provision of Utility Services to any other Unit or a Common Element, (3) unreasonably interfere with the permitted use or operation of any other Unit by its Unit Owner or its Permittees or of the Common Elements, (4) change the aesthetic character of Clearwater Beach Project in a material, adverse manner, (5) have an adverse effect on the structural integrity of any other Unit or a Common Element; or (6) be inconsistent with the overall first class standards of the Clearwater Beach Project. (b) Exterior and Landscaping of the Units and Common Elements. Except for the alterations and improvements to the landscaping and exteriors of the Improvements made in accordance with Section 11, there shall be no other alterations or improvements to the -26- 0 0 exteriors of any Units as they exist on the date hereof (including, but not limited to, facade, roofing, wall mounted signage, windows or entrances) and no modifications of (including reductions in, or additions to) any landscaping as it currently exists, unless the following requirements are satisfied in each instance: (i) such alteration, improvement or modification is in compliance with all Laws and (ii) unless all other Unit Owners consent in writing, such change shall not (1) compromise an easement for support relied upon by any other Unit or a Common Element, (2) impair the provision of Utility Services to any other Unit or a Common Element, (3) impair the view afforded any other Unit, (4) unreasonably interfere with the permitted use or operation of any other Unit by its Unit Owner or its Permittees or of the Common Elements, (5) change the aesthetic character of Clearwater Beach Project, in a material adverse manner, or (6) be inconsistent with the overall first class standards of the Clearwater Beach Project. The foregoing notwithstanding, a Unit Owner may replace windows, exterior facades, facings and other decorative elements, provided said Unit Owner complies with all Laws and further provided that the same are substantially identical to the exterior materials and elements that are not being replaced. 9.4 Documentation. Each Unit Owner shall keep the following documentation on site and available for inspection by the Association during normal business hours: Copies of all building permits for new construction and certificate(s) of occupancy, to the extent in the Unit Owner's possession; (i) Current as-built plans and specifications, to the extent in the Unit Owner's possession; and (ii) Copies of all maintenance and testing records for the past three (3) years, to the extent in the Unit Owner's possession. In addition, each Unit Owner shall promptly provide to the Association, upon request, access to copies of current as-built plans and specifications for its respective Unit, to the extent in the Unit Owner's possession. 9.5 Incidental Damage. Any damage caused to a Unit or the Common Elements by reason of any maintenance and repair performed in accordance with the provisions of this Section 9 or elsewhere in this Declaration shall be promptly repaired to a condition substantially the same or superior to the condition existing prior to the damage by the party causing such damage, at said party's expense. 9.6 Inspection and Testina. (a) The Association or its designee may inspect and test any portion of the Condominium Property W the Association reasonably believes that any such part of the Condominium Property is not being properly maintained and repaired or, upon request from any other Unit Owner, based upon such other Unit Owner's reasonable belief that (i) such property is not being properly maintained and repaired, and (ii) the failure to property maintain and repair such property is having a material and adverse effect on such Unit Owner's Unit (or the operations from such Unit), and if the Association determines that same is not being property maintained and repaired, the Association shall so advise the Responsible Unit Owner. In the event a question arises as to whether any portion of the Condominium Property is or is not being property maintained, a decision pursuant to the Dispute Resolution Plan described in Section 13.2 shall be determinative. (b) In the event of an emergency, the Responsible Unit Owner shall immediately perform required maintenance or repair, and should such Unit Owner fail to do so, then the -27- Association may proceed to maintain or repair the portion of the Condominium Property so affected and make such necessary and reasonable repairs, and to collect any monies advanced by the Association for these purposes through a Special Assessment against the applicable Unit (c) In the event there is no emergency, a Unit Owner will be allowed twenty (20) days to perform required maintenance or repair after receipt of notice thereof from the Association or from the other Unit Owner(s), and if at the end of such time period, more time is required, and the Unit Owner has been diligently performing required maintenance or repair, then such additional time as may be necessary to complete such maintenance or repair shall be allowed, provided the Unit Owner continues to diligently pursue same. The Association may proceed to maintain the Condominium Property and to make such repairs, and to collect any monies advanced by the Association for these purposes through a Special Assessment against the applicable Unit in the event that (i) the Unit Owner fails to commence correction of such matter or (ii) the Unit Owner fails to diligently complete the same. 10. Insurance. 10.1 Property Insurance. (a) Coverages. The Responsible Insurance Party shall obtain and keep in full force and effect at all times property damage insurance, excluding only: (a) fixtures, installations or additions comprising any part of the Building within the unfinished interior surfaces of the perimeter walls, floors and ceilings of the individual Units initially installed or replacements thereof of like kind and quality, (b) all personal property and trade fixtures located within any Unit, which shall be separately insured by each Unit Owner, and (c) all moveable personal property belonging to tenants and subtenants and such portion of tenant finish improvements, 9 any, which a tenant is responsible to insure under its lease. The property damage insurance shall be on a standard all-risk form including coverage for sprinkler leakage, water damage, and other special perils (or on such other form as the Responsible Insurance Party, as applicable, selects with the approval of the other Unit Owners and all Mortgagees). All property damage insurance shall, at a minimum, meet the following requirements: (i) Such insurance shall provide full replacement cost coverage, with an agreed value endorsement. The limit of coverage thereunder shall be established by insurance appraisals acceptable to the Association and the applicable insurer, which the Responsible Insurance Party, as applicable, shall cause to be performed from time to time as the Responsible Insurance Party, as applicable, shall direct. In addition, the Responsible Insurance Party shall cause the insurance appraiser to determine the replacement costs of the Common Elements and/or the Shared Components, as applicable, but such allocation shall not limit the amount of insurance proceeds to which any Unit Owner shall be entitled to receive on account of any insured loss, in the event such Unit Owner shall be entitled to proceeds in excess of replacement cost. In the event that a Unit Owner believes that the amount of insurance coverage being maintained is inadequate, the such Owner shall have the right to obtain, at its -28- 0 0 own cost and expense, a separate appraisal and to submit same to the other Unit Owners. Upon receipt, the other Unit Owners shall have the option to either (i) accept the findings of the appraisal, in which event, it shall obtain such adjusted insurance coverage to meet the findings of the appraisal, or (ii) advise the requesting Owner that it does not accept the findings of the appraisal, in which event, If the requesting Unit Owner does not, within fifteen (15) days following the other Unit Owners' advice that the appraisal is not accepted, mutually agree upon the amounts of insurance coverage to be maintained, the matter shall be submitted to the Dispute Resolution Plan. (ii) Such insurance shall include demolition, increased cost of construction, and building ordinance coverages, boiler and machinery coverage, flood insurance and an inflation-guard endorsement. Such insurance shall (i) name each Unit Owner as a named insured, (li) designate the Association as an additional named insured and (iii) require that the insurance proceeds be disbursed to the Unit Owners or such Unit Owners' Mortgagees, as applicable, in accordance with the Unit's applicable Allocated Interests with respect to the Shared Components, and with each Unit's Percentage Shares with respect to the Common Elements, and as provided in Section 11.4(a), or with respect to the Insurance Trustee, as provided in Section 11.4(b), as the case may be, after the determination to reconstruct or repair has been made pursuant to Section 11.2 and 11.3. (iv) Such insurance shall contain a standard mortgagee endorsement naming each mortgagee. (v) The deductible under any such insurance shall not be greater than that which is commercially reasonable, without the approval of all Unit Owners and their Mortgagees. (vi) In any case in which any material alterations or improvements are being constructed upon or within any Unit or any Common Element, there shall be added to such insurance during the construction period, builder's risk coverages (the additional cost of which shall be borne solely by the Unit Owner or Owners of the Units in which such alterations or improvements are being constricted, and If there is more than one such Unit Owner, or a Shared Component is involved, to be allocated between such Unit Owners based on the costs of the applicable alterations and improvements). (vii) The premium for the property damage insurance maintained by the Responsible Insurance Party with respect to the Units, the Common Elements and/or the Shared Components, as required by this Section 10.1 (including boiler and machinery and any special perils coverages or endorsements), shall be allocated among the Unit Owners in proportion to each Unit Owner's Allocated Interests, with respect to the Shared Components, and each Units Percentage Shares, with respect to the Common Elements. Any reasonable costs incurred by the Responsible Insurance Party in connection with the maintaining of the insurance -29- 0 0 required to be maintained by it pursuant to this Section 10.1, including, without limitation, costs of any appraisals, shall be part of the Common Expenses or Allocated Expenses, a applicable. In the event that a Unit Owner does not timely pay its allocable portion thereof, the Responsible Insurance Party shall have a lien against the such Unit or Units and such other rights granted a 'Responsible Unit Owner" in Sections 6.1(d) and 6.3 of the Declaration and may enforce such lien as provided therein. (viii) Each Unit Owner may also obtain business income coverage for the benefit of such Unit Owner, in such amounts as may be determined by each Unit Owner. Each Unit Owner shall pay the premium attributable thereto. At the election of a Unit Owner, said Unit Owner's Mortgagee(s) (if any) for which such business income insurance is maintained shall be designated as the party entitled to collect the proceeds of such business income coverage. The proceeds of any such coverage shall be separately payable to each Unit Owner or its Mortgagee(s) (as provided immediately above) and not to the Insurance Trustee or the Association. (b) Obligation to Purchase. Declarant, for each Unit owned by it, hereby covenants and agrees, and each Unit Owner, by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, including any purchaser at a judicial sale, shall hereafter be deemed to covenant and agree to purchase such insurance policies containing the coverages described in this Section 10.1 and to pay all insurance related expenses and costs imposed on it under this Declaration. The requirement to purchase such insurance policies and to pay all such costs and expenses (i) shall be a charge on the Land and a continuing lien on the affected Unit; (ii) shall be an obligation of the Owner of the Unit at the time such costs and expenses are due and an obligation of all subsequent Owners of said Unit until paid; and (iii) may be enforced in any manner provided in this Declaration. The provisions of Section 10.1 constitute an independent covenant running with the Land between the Unit Owners, and the obligation to purchase property damage insurance covering the Shared Components, as set forth herein, is not pursuant to the Condominium Act. (c) Copies. Copies of all insurance certificates, policies and their endorsements required under this Section 10.1 shall be deposited with the Association and the Insurance Trustee (when and if appointed). Such copies shall be available for inspection by Unit Owners or their authorized representatives at reasonable times at the offices of the Association. 10.2 Liability Insurance. (a) Coverages. The Association hereby charges, directs and requires that each Unit Owner obtain and keep in full force and effect at all times commercial general liability insurance covering (x) public liability for bodily injury and property damage, and (y) claims of one or more insured parties against other insured parties, including a contractual liability endorsement covering the indemnity set forth in Section 19.11 below. Such liability insurance shall cover as additional insureds the Board of Directors of the Association, the Association, the officers of the Association, all mortgagees (to the extent requested by such mortgagees by written notice to the Association), the other Unit Owners and their -30- 0 9 respective employees and agents and shall, at a minimum, have limits of coverage that are not less than the following: (i) $1,000,000 per occurrence with respect to personal injury (including death); (ii) $1,000,000 per occurrence with respect to damage to property; (iii) $2,000,000 per occurrence with respect to contractual liability; and ('iv) $10,000,000 umbrella liability with respect to the liability coverages required hereunder. Such insurance shall also include premises/operations, products/completed operations, personal/advertising injury, and property/legal liability coverages and shall expressly provide that additional insureds shall be entitled to defense of claims. In addition, (b) So long as any alcoholic beverages shall be served, sold, or otherwise made available upon or from any of the Retail Units, the applicable Retail Unit Owner shall maintain liquor liability insurance, in such form and with such limits of coverage as are then generally being maintained by owners or operators of Retail facilities of equivalent class in the State of Florida. (c) All such liability policies will name the Association, each Unit Owner, and each Unit Owner's mortgagee(s) (if requested by such mortgagees by written notice to the Association) as additional insureds. 10.3 Miscellaneous Insurance Provisions. (a) All insurance required to be maintained under this Declaration shall provide that h may not be cancelled or modified without at least thirty (30) days' prior written notice to the Association, all Unit Owners, and all mortgagees who have given the Association notice of its encumbrance pursuant to this Declaration. (b) The Association and each Unit Owner may carry any other type of insurance it considers appropriate in amounts it deems appropriate, to insure the interests of the Association and the Unit Owners; provided, that the liability of the carriers issuing insurance required by this Declaration shall not be affected or diminished by reason of any such additional insurance. Without limiting the foregoing, each Unit Owner shall be entitled to purchase such additional coverages and endorsements to any property damage and liability insurance policies as such Unit Owner may desire so long as it does not adversely affect the required coverage, and provided that all additional costs of such coverage shall be paid by said Unit Owner. (c) All insurance required to be maintained under this Declaration shall provide that no act or omission by any insured will void the policy or be a condition to recovery under the policy as against any mortgagee or other named insured or additional insured party. In addition, all insurance providing coverage for damage, destruction, or other loss from Casualty and/or for loss of business income (whether required or permitted hereunder) shall provide that the insurer furnishing such coverage waives its right of subrogation under the -31- policy against the Association, each Unit Owner, each mortgagee, each tenant, each manager or operator of a Retail Unit, each property manager or operator of any Unit, any other person claiming by, through, or under any Unit Owner, and any director, agent, or employee of any the foregoing. (d) If at the time of a loss under the policy, there is other insurance in the name of an insured party covering the same risk covered by the policy, the policy of the Unit Owner of the building incurring such loss shall be primary as to any similar coverages maintained by any other Unit Owner. Such losses shall include, without limitation, liabilities arising from events or occurrences upon such Unit or any Common Elements or easement areas for which the owner of such Unit is responsible under Sections 11.2 and 11.3, or for which a Unit Owner is required to indemnity the other Unit Owners under Section 19.11. (e) The Association may adopt and establish written nondiscriminatory policies and procedures relating to the submittal of claims, responsibility for deductibles, and any other matters of claims adjustment, provided that the Association may not adopt policies or procedures which contradict or contravene the terms of this Declaration. Insurance policies and insurance coverage shall be reviewed at least annually by the Association. (f) All insurance obtained by the Association under Sections 10.4 and 10.5 hereof or by any Unit Owner hereunder shall, except as expressly provided otherwise elsewhere in this Declaration, contain deductibles no greater than the maximum deductible amounts established in writing by the Responsible Insurance Party with respect to each type of insurance required under this Declaration. To the extent that (1) Restoration is required under the provisions of this Declaration, or an insured party is required to indemnify any other person under the provisions of this Declaration, and (2) the amount the insurer would otherwise pay with respect to such Restoration or indemnified matter is reduced by the amount of a deductible, then (i) in the case of deductibles under policies maintained by the Association or by a Unit Owner where the Association has agreed in this Declaration to be liable for the premiums payable thereunder, the Unit Owners shall be liable for the amount of such deductibles in the same proportions as the Unit Owners share in the cost of such insurance, and (ii) in the case of deductibles under policies maintained by a Responsible Unit Owner, each Unit Owner shall be liable for a share of the amount of such deductible equal to its Allocated Interest. (g) Notwithstanding anything contained herein to the contrary, all insurance carriers shall conform to the minimum financial rating, asset size, and other reasonable requirements imposed by Mortgagees; provided, that in no event shall any insurance required hereunder be maintained with an insurer having a rating by Best Insurance Reports that is lower than "A+/X ll" (or if such rating is no longer published or is modified, then such rating or qualifications as shall be equivalent to the aforesaid rating as determined as of the date of this Declaration), without the approval of all Mortgagees. 10.4 Fidelity Insurance. The Association or its managing agent shall also obtain and maintain fidelity coverage against dishonesty of directors, officers, employees of the Association, the managing agent and any other person handling funds of the Association, against destruction or disappearance of money or securities and forgery. Said policy shall also contain endorsements covering any persons who serve the Association without compensation. Such fidelity bond shall -32- name the Association as obligee and such coverage shall not be less in the aggregate than two months' current Assessments plus reserves, as calculated from the current Budget of the Association. The Association shall require of any managing agent that such managing agent maintain fidelity insurance coverage or a bond in an amount not less than Fifty Thousand Dollars ($50,000). 10.5 D & 0 Liability Insurance. The Association shall also maintain liability insurance for the benefit of the directors and officers of the Association, with coverages commonly carried under so-called "D & 0" policies by not-for-profit corporations, in amounts reasonably approved by the Board from time to time (but in no event less than $1,000,000 per occurrence), the cost of which shall be a Common Expense. 10.6 Compliance with Insurance Reauiremgnts. Neither the Association nor any Unit Owner shall commit or permit to occur any violation of the insurance policies required hereunder and maintained by the Association or any Unit Owner pursuant to this Declaration, nor permit any action or keep or permit to be kept in any Unit any substances or materials that (i) would result in termination of any such policies, (ii) could result in the loss of the right of recovery under any of such policies, or (ii7 could result in reputable, independent insurance companies refusing to insure the property covered thereby in the amounts required by this Declaration. Each Unit Owner shall provide to the Association, to the other Unit Owners and to each Mortgagee, prior to the expiration or renewal date under each insurance policy required or permitted to be maintained by said Unit Owner hereunder, evidence that said Unit Owner is continuing to maintain the insurance policies and coverages (including all required endorsements) for the benefit of all persons required to be insured, as provided for under this Section 10. Such evidence shall be in the form of one or more certificates of insurance; provided, that at the written request of any Unit Owner or any Mortgagee, said Unit Owner will provide copies of the applicable insurance policies. In any case in which any of the coverages or minimum coverage limits provided for in this paragraph cease to be commercially available, any Unit Owner affected thereby shall notify the Association, the other Unit Owners and all mortgagees, and, in such event, such requirements may be varied, or other provisions may be made for protection against such risks, upon the approval of two-thirds of the Unit Owners and Mortgagees. 10.7 Failure to Maintain Insurance; Remedies. If any Unit Owner shall fail to promptly obtain or continuously maintain any of the insurance required by this Declaration or to pay the premium on such insurance when the same is due, each of the Association and the other Unit Owners shall have the right, but not the obligation, to obtain such policies and/or pay such premiums, and to cause the Association to charge the cost thereof to the failing Unit Owner as a Special Assessment. If the Association shall fail to promptly obtain or continuously maintain any of the insurance required by this Declaration or to pay the premium on such insurance when the same is due, each of the Unit Owners and each of the Mortgagees shall have the right, but not the obligation, to obtain such policies and/or pay such premiums upon not less than three (3) business days' prior notice to the Association and the other Unit Owners, and if any Unit Owner or Mortgagee shall elect to so acquire any such insurance, the Unit Owner or Mortgagee paying for such insurance shall be entitled, in addition to any other remedy, either (x) to cause the Association to charge the cost thereof to the Association and to be subrogated to the assessment lien of the Association as against any Unit Owner having failed to pay its share of the premiums therefor as required under this Declaration, or (y) to require the Association to charge (as a Special -33- Assessment) the cost thereof directly to any Unit Owner having failed to pay its share of the premiums therefor as required hereunder. 11. Reconstruction or Repair After Fire or Other Casua . 11.1 Reconstruction or Repair After Casualty. If the Clearwater Beach Project, or any improvements, structures, fixtures or equipment therein, or any Common Element or any part thereof, is damaged or destroyed by any Casualty, the repair, Restoration or ultimate disposition of any proceeds arising as a result thereof shall be in accordance with the following: 11.2 Casually to Units. Except as may otherwise be required by the Act, and subject to the availability and sufficiency of insurance proceeds for such purpose, upon any Casualty to any Unit, subject to the provisions of Section 11.3 below: (a) Each Unit Owner shall be obligated to diligently pursue and promptly complete the Restoration of the portion or portions of its Unit that shall have been affected by such Casualty, to the extent (and only to the extent) of all structures, improvements, Utility Facilities, and areas subject to easements in favor of other Unit Owners hereunder that are required in order to Restore, use, and operate any other Unit, Shared Components or any Common Elements necessary for the Restoration, use and operation of any other Unit, if such Unit is operational or is itself being Restored, and, unless the condominium form of ownership is terminated as provided in Section 15, each Unit Owner shall have the option to Restore its Unit (or any portion thereof it is not obligated to restore as aforesaid), upon the terms and conditions hereinafter set forth. If said Unit Owner elects not to restore its Unit, said Unit Owner shall be obligated to diligently pursue and promptly complete either of the following: W construction within its Unit of a new building and related structures, improvements, fixtures and equipment as such Unit Owner may desire to construct, for such uses as are permitted by and in accordance with all Laws, provided the same are consistent with the provisions of this Declaration and substantially preserve the easements reserved herein for the benefit of the other Unit Owners and the Association; or (ii) demolition of all damaged structures and improvements that are not being Restored, removal of all debris, the permanent closure of openings to the Clearwater Beach Project that are created by such demolition and removal, and the exterior finishing of all unrestored areas, so as to (i) preserve the security and the architectural integrity of the remaining portions of the Clearwater Beach Project, (ii) provide an exterior finish that is architecturally consistent with the other portions of the Clearwater Beach Project, (iii) comply with all Laws, (iv) place all unrestored areas in a sightly condition, and (v) comply with the requirements of Section 11.2(a) above. Notwithstanding anything herein contained to the contrary, in the event of any Casualty affecting more than one Unit or any of the Shared Components or Common Elements (which shall be deemed to be all Casualties, other than one which only affects the interior of a Retail Unit and does not otherwise affect the structural integrity of the Building or the Shared Components or Common Elements), any and all such Restoration shall be -34- undertaken by the Responsible Insurance Party, in accordance with the provisions of Sections 11.4(b), 11 .5, 11.6, 11.7 and 11.8 below. 11.3 Casualty to Common Elements or Shared Components. To the extent any Common Elements or Shared Components are subject to any Casualty: (a) The repair and Restoration of all Common Elements and/or Shared Components shall be the responsibility of the Responsible Insurance Party. The Responsible Insurance Party shall be obligated to promptly pursue and diligently complete the Restoration of all Common Elements and/or Shared Components for which it is responsible. In any case in which the Association or an Owner, as applicable, is required to Restore, and does Restore, any Common Elements or Shared Components hereunder, the Association and/or such Owner shall be entitled to use any and all available insurance proceeds any Unit Owner or the Insurance Trustee shall receive or be entitled to receive on account of such Casualty to the Common Elements and/or Shared Components, as applicable. If insurance proceeds are inadequate, the provisions of Section 11.5 hereof shall govern. The occurrence of a Casualty that may affect any Owner's use or enjoyment of any Common Elements and/or Shared Components shall not constitute a basis for an abatement of Assessments and Charges for Common Expenses. 11.4 Collection and Application of Insurance Proceeds. (a) Collection and Application of Insurance Proceeds Upon Casualty to One Unit. In any case in which a Casualty affects only one Unit and does not affect any Common Elements or Shared Components and does not otherwise affect the structural integrity of the Building or the provision of Utility Services to any other Unit, then the Owner of such Unit shall be (and is hereby) empowered and authorized to settle and adjust the applicable insurance claims on account thereof and to collect and apply the insurance proceeds provided, that to the extent required by any mortgage upon such Owner's Unit, such insurance proceeds (i) shall be settled and adjusted by or with the consent of the Mortgagee(s) of such Unit and (ii) shall be paid over to the First Mortgagee, for application as provided under the such First Mortgage; provided further, however, that each mortgagee must permit the application of insurance proceeds so as to enable each Unit Owner to comply with its obligations under this Section. If required by its mortgagee, such proceeds may be deposited in an escrow account with an escrow agent. The escrow agent shall administer the disbursement of such proceeds in a manner consistent with this Section 11. The escrow agent shall be the First Mortgagee, or its designee, of the Unit involved. The escrow account shall be subject to such limitations on disbursement as may be reasonably required by the escrow agent and which meet the requirements customarily unposed by prudent institutional mortgage lenders for disbursements of funds for construction, including, without limitation, draw requests certified by the applicable Unit Owner, general contractor, and project architect (including certification from the architect of the stage of completion under each contract and subcontract), retainage of funds in accordance with prevailing construction practices, progressive lien waivers submitted by the contractor and subcontractors, continuing evidence of the availability of sufficient funds to complete the restoration, and satisfactory date-downs of title at the time of each disbursement. -35- 0 9 (b) Collection and Application of Insurance Proceeds Upon Casualty to More than One Unit or to Common Elements or Shared Components. Upon the occurrence of any Casualty affecting either (i) more than one Unit or (ii) any Common Elements or Shared Components, (iii) the structural integrity of the Building, or (iv) the provision of Utility Services to more than one Unit, the following provisions shall apply: (i) This Declaration does hereby make mandatory the irrevocable appointment, as attomey-in-fact, of either (i) a title insurance company or (ii) a bank having trust powers or (III) a trust company located in Pinellas County having a minimum ratio of total capital to total assets of at least seven percent (7°/a) and an aggregate capital and unimpaired surplus of at least Fifty Million Dollars ($50,000,000.00), to be selected by the Responsible Insurance Party, as "Insurance Trustee," provided, that no Insurance Trustee shall be designated whose accounts are not government insured or guaranteed. Notwithstanding the foregoing, to the extent required by any institutional lender holding a mortgage encumbering the Parking Unit or the Retail A Unit, said holder shall be deemed an acceptable Insurance Trustee. (ii) Each of the Unit Owners irrevocably constitutes and appoints the Responsible Insurance Party, applicable, its true and lawful attorney, in its name, place, and stead, for the purpose of dealing with the Condominium Property in connection with such Casualty as set forth in this subsection 11 A(b). Title to each Unit is declared and expressly made subject to the terms and conditions hereof, and acceptance by any grantee of a deed or other instrument of conveyance from the Owner or from any subsequent Unit Owner shall constitute appointment of the attomey-in-fact by such grantee as herein provided. The Responsible Insurance Party, shall, in undertaking the duties and exercising the powers and authority granted hereunder and in clauses 11.4(b)(iii) and 11.4(b)(iv) below, have an obligation to act in a non-discriminatory manner to further the interests of the Unit Owners. In that regard, the Responsible Insurance Party shall, prior tD accepting any insurance settlement, consult with the Unit Owners regarding the terms of the proposed settlement, provided, however, that the consent or approval of the Unit Owners shall not be required unless the proposed amount of insurance proceeds to be received shall be inadequate to effect Restoration of the Units. (iii) Subject to the provisions of clause 11.4(b)(ii) above, the Responsible Insurance Party shall be (and is hereby) empowered and authorized to settle and adjust the applicable insurance claims on account of a Casualty covered by this subsection 11.4(b) and the Unit Owners shall collect and apply the insurance proceeds on account thereof, as provided in this Section 11. (iv) As attorney-in-fact, the Responsible Insurance Party, by its duly authorized officers or agents, shall, subject to the provisions of clause 11.4(b)(ii) above, have full and complete authorization, right, and power to make, execute, and deliver any contract or other instrument with respect to the interest of a Unit Owner which is necessary and appropriate to exercise the powers herein granted. -36- LJ (v) The proceeds of any insurance collected shall be available to the Responsible Insurance Party for (i) the purpose of Restoration of the Units, Shared Components and Common Elements (or any other reconstruction permitted under this Declaration), as applicable, or (ii) for distribution to the Unit Owners where either (A) any Unit Owner is not obligated to Restore, and elects not to Restore, its Unit in accordance with this Section 11 or (13) the Unit Owners elect to terminate the Condominium in accordance with the provisions of Section 15, in which event the insurance proceeds shall be distributed to the Unit Owners in accordance with Section 11.6 (provided, however, that no proceeds shall be distributed until all costs of any Restoration to be undertaken has been completed and paid). Each Unit Owner hereby directs the Insurance Trustee to release, in accordance with the provisions of this Section 11, to the applicable Responsible Insurance Party, such portions of the insurance proceeds as are necessary to fully Restore the Units and/or such Common Elements and/or Shared Components in accordance with the terms of this Declaration. (vi) Declarant, as the Owner of each Unit, and each subsequent Owner of a Unit, by its acceptance of a deed or other form of conveyance of its Unit, covenants and agrees, upon the occurrence of a Casualty governed by this subsection 11.4(b), to pay over to the Insurance Trustee all insurance proceeds covering such property losses immediately upon receipt thereof. To the extent of any portion of insurance proceeds received (whether by the Parking Unit Owner or a Retail Unit Owner) on account of another Unit Owner, said portion shall be placed with the Insurance Trustee, to be held and disbursed only in accordance with the terms hereof. To the extent that a Unit Owner, in settling an insurance claim, is to receive proceeds with respect to more than one Unit, the insurance company, in paying such proceeds, shall allocate same between the Units. (vii) The Insurance Trustee shall not be liable for payment of premiums nor the failure to collect any insurance proceeds. (viii) All expenses of the Insurance Trustee shall be paid by the Unit Owners in proportion to their Allocated Interests. (ix) The duty of the Insurance Trustee shall be to receive such proceeds as are paid to the Insurance Trustee and to hold the proceeds in trust, pursuant to the provisions of this Declaration, for the purpose and application elsewhere stated in this Declaration and for the benefit of the Association and/or the Unit Owner(s) and, when applicable, the Unit Owner's Mortgagees. (x) Within sixty (60) days following settlement of the insurance claim and receipt of insurance proceeds, the Responsible Insurance Party shall deliver to the Unit Owners an anticipated date for commencement of Restoration and an anticipated date for completion of Restoration of the Units (as same may be extended by Force Majeure, the "Anticipated Completion Date"). In establishing these dates, the Responsible Insurance Party shall act in a commercially reasonable manner and shall establish a Restoration plan that will allow for each Unit to be Restored as soon as reasonably possible (keeping in mind that one -37- 0 s Unit may reasonably be able to be opened prior to another Unit). Subject only to delays resulting from Force Majeure, the Responsible Insurance Party shall make commercially reasonable efforts to effect the Restoration within the time periods described to the Unit Owners. (xi) Notwithstanding anything herein contained to the contrary, provided that commercially reasonable efforts are made to coordinate with the Unit Owners, nothing herein shall preclude a Unit Owner from effecting Restoration of its own Unit from its own funds (and upon receipt of insurance proceeds, the Unit Owner effecting the repairs from its own funds shall be entitled to prorata reimbursement from the insurance proceeds). 11.5 Insufficient Insurance Proceeds. In the case of damage, destruction, or other loss affecting only one Unit, receipt of insufficient insurance proceeds shall not relieve the Responsible Insurance Party of complying with the provisions of Sections 11.2 and 11.3 and such Unit Owner shall be required to deposit the amount of such insufficiency (including any deductibles) with the Insurance Trustee, prior to the commencement of Restoration. In all other cases, if the insurance proceeds are insufficient to Restore the damage, destruction, or other loss resulting from any Casualty: (a) the Owners may elect to terminate the condominium form of ownership as provided herein; (b) where insurance funds are insufficient to effect a Restoration of Units and Common Elements to the minimum extent required by Sections 11.2 and 11.3 or in the event of an uninsured casualty (and the Unit Owners shall not have made the election to terminate the Condominium under paragraph (a) above), the (i) Assessments shall be made against all Unit Owners, where all Unit Owners or the Common Elements have been affected; and (ii) Charges shall be made against the affected Unit Owners, where only Shared Components are affected by such Casualty, in each case in sufficient amounts to provide funds for the payment of such costs. All such Assessments against all Unit Owners pursuant to (i) above shall be in proportion to the Percentage Shares applicable to the affected Owner's Unit, and all such Charges against the affected Unit Owners pursuant to (ii) above shall be in proportion to the Allocated Interests. The failure by any Unit Owner to pay the Assessments and Charges described above shall be governed by Section 6.1(d) and Section 6.3 hereof; and (c) where the Unit Owners shall not have made the election under paragraph (a) above to terminate and the insurance proceeds are sufficient to effect the minimum Restoration required by Sections 11.2 and 11.3 but not sufficient to effect a complete Restoration of all Units affected by such Casualty, and the Owners desire to exceed the minimum requirements of Sections 11.2 and 11.3, then insurance proceeds shall be allocated as follows: (i) first, to restoration of the Parking Unit; (ii) second, subject to all applicable laws, and so long as such Restoration, at a minimum, completes the exterior of all affected Units and satisfies the minimum requirements of Sections 11.2 and 11.3, to the Restoration of so much of such damage or destruction of the other Units affected by such Casualty as the -38- 0 0 amount of insurance proceeds available will permit, such proceeds being allocated between the Owners whose Units were affected by such Casualty, on a pad passu basis in proportion to the total costs that would be required to effect a complete Restoration of the affected Units (and in such case the cost of Restoration shall be determined by averaging three estimates of such costs from three (3) qualified professional Insurance claims adjusters selected by the Association, which the Association shall obtain at the request, and at the expense, of such Unit Owners within thirty (30) days after receipt of a written request therefor from such Unit Owners); provided, that such proceeds may be allocated in such other priority and/or manner as the Owners and all Mortgagees shall otherwise agree. Nothing herein shall be construed to permit the partial Restoration of a Unit. The allocation of insurance proceeds under Section 11.5(c)(i) above shall not mitigate a Unit Owner's obligation to fund any insufficiencies, in accordance with this Section 115(c) and to fully and completely Restore its Unit, once Restoration has commenced. 11.6 Excess Insurance Proceeds. If the amount of available insurance proceeds shall exceed the cost of any Restoration that a Unit Owner undertakes in accordance with this Section (such as, but not limited to, where a Unit Owner elects not to fully Restore its Unit or to construct new improvements in lieu thereof), the excess shall be returned to the affected Unit Owners in accordance with their Allocated Interests, subject to the following: to the extent required by any mortgage on any Unit, such excess proceeds shall be paid to the appropriate mortgagee(s), as their interests may appear, for application to the appropriate mortgage indebtedness and the excess, N any, shall be allocated among the Unit Owners whose Units were affected by the applicable Casualty, up to the amount of the insured loss sustained by each such Unit Owner as determined under the provisions of the applicable insurance policies, K adequate insurance proceeds are not otherwise available pursuant to such Unit Owner(s)' insurance policies; provided, that (i) losses to Common Elements shall be allocated among the Unit Owners in proportion to their respective Percentage Shares and, (ii) losses to Shared Components Owner shall be allocated between the Unit Owners in proportion to their Allocated Interests. 11.7 Remedies. In the event a Unit Owner or Unit Owners elect or are obligated to Restore all or any part of the Condominium Property, or to Restore the minimum of Condominium Property, as required by Sections 11.2 and 11.3, but fail(s) to do so pursuant to the requirements of this Section 11 within a commercially reasonable time following the Casualty (or as to a Casualty governed by subsection 11.4, within sixty (60) days following the Anticipated Completion Date), the other Unit Owners and/or the Association shall have the right and power to effect the Restoration of the damaged Unit(s) and any Common Elements to the minimum extent required under Sections 11.2 and 11.3. The other Unit Owners and/or Association, as applicable, shall not exercise its remedies unless the Unit Owners performing the Restoration have failed to provide the other Unit Owners and/or Association with adequate assurances that such Owner will commence or complete rebuilding, as applicable, as required by this Section 11 within thirty (30) days after notice from the other Unit Owners and/or Association. The other Unit Owners and/or the Association shall have access to all insurance proceeds as provided in this Section 11, in order to exercise its remedies. The other Unit Owners and/or Association shall be entitled to the appointment of a receiver or other court authorization in order to exercise its remedies. Any insurance proceeds remaining after the exercise of any remedies hereunder shall be distributed to the Unit Owner who failed to comply -39- 0 0 with the provisions of this Section 11, or, if more than one Unit Owner, to the Unit Owners who failed to comply with the provisions of this Section 11, in proportion to their Percentage Shares, subject to any valid liens. 11.8 Construction Procedures. If repair and Restoration of any damaged or destroyed Units or Common Elements is required pursuant to the provisions of this Section 11, such repair and Restoration shall be commenced and pursued until completion in as timely a manner as practicable and shall be performed by reputable contractors experienced in the construction of structures similar to the Improvements to be reconstructed selected by the Responsible Insurance Party. Plans and specifications for such repair and Restoration shall be prepared by a reputable architect experienced in the design of high rise structures similar to the Improvements to be repaired or restored. Subject to the provisions of Sections 11.2 and 11.3, the plans and specifications shall provide for the Improvements to be rebuilt as nearly as comparable and as commercially practical to the Improvements, as constructed prior to the damage, unless prohibited by Law or unless the Unit Owners unanimously vote otherwise, subject to the approval of all Mortgagees. The Responsible Insurance Party shall obtain builder's risk insurance during any period of reconstruction in such amount as is prudent under the circumstances and shall provide the Insurance Trustee, the Responsible Insurance Party and the other Unit Owners with evidence of such coverage. The contractor and all subcontractors shall carry insurance in such types and amounts as the Responsible Insurance Party may determine in its reasonable discretion and shall provide the Insurance Trustee and the Association with certificates of insurance evidencing such insurance and naming the Responsible Insurance Party , the Association and the other Unit Owners as additional insureds. Any and all funds deposited with the Insurance Trustee shall be subject to such limitations on disbursement as may be reasonably required by the Insurance Trustee and which meet the requirements customarily imposed by prudent Institutional mortgage lenders for disbursements of funds for construction, including, without limitation, draw requests certified by the applicable Unit Owner, general contractor, and project architect (including certification from the architect of the stage of completion under each contract and subcontract), retainage of funds in accordance with prevailing construction practices, progressive lien waivers submitted by the contractor and subcontractors, continuing evidence of the availability of sufficient funds to complete the restoration, and satisfactory date-downs of title at the time of each disbursement. The provisions of this Section 11.8 may be enforced by any Unit Owner or the Association. 12. Condemnation. 12.1 In General. If any portion of the Condominium Property shall be affected by any Taking, each Unit Owner affected thereby and the Association shall be entitled to notice of such Taking and to participate in the proceedings incident thereto. Any awards made in connection with such proceedings shall, to the extent possible, specifically allocate the awards between the affected Units and the affected Common Elements, and shall be collected, applied, and/or distributed in accordance with the following provisions, subject to the contrary provisions of any final order (after conclusion of any appeals or expiration of any appeal periods) entered in the applicable judicial proceedings with respect to such Taking. 12.2 Total Taking. If a Unit is acquired in its entirety by a Taking, or if part of a Unit is acquired by a Taking leaving the Unit Owner with a remnant which cannot practically or lawfully be Restored to a -40- • complete architectural structure or structures that can economically be used for a purpose permitted by this Declaration, the provisions of this Section 12.2 will control. (a) (In any case in which all Units are affected by a Taking to the extent described immediately above, the Unit Owners may elect to terminate the condominium form of ownership in accordance with the provisions of Section 15 which provisions shall govern such termination. (b) Where the Unit Owners do not so elect to terminate the condominium form of ownership, the award payable for the Taking of each Unit and the award payable for the Taking of any Common Elements shall (i) first, be applied to the Restoration of Common Elements and Shared Components if and to the extent necessary to permit the Restoration and use of the Units that are being Restored in whole or in part notwithstanding the occurrence of such Taking, in accordance with the provisions of Section 11.2, (ii) second, be applied to any remnant of the Unit affected by such Taking so as to cause such remnant to comply with the provisions of Section 11.2, and (iii) third, be paid to the Unit Owner(s) of the affected Unit(s), with the award for the Taking of a Unit being payable entirely to the Owner of such Unit and the award for the Taking of Common Elements being payable to the Unit Owners in proportion to their Percentage Shares; provided, that to the extent required by any mortgage on any Unit, any proceeds under Clause (iii) shall be paid to the appropriate mortgagee(s), as their interests may appear, for application to the appropriate mortgage indebtedness and the excess, if any, shall be paid to the appropriate Unit Owners. Awards for the Taking of a Shared Component shall be payable to the Unit Owners in accordance with their respective Allocated Interests. (c) If, by reason of a Taking, a Unit ceases to be a part of the Condominium Property and/or ceases to be used in a manner consistent with this Declaration, then, upon acquisition of such Unit by the condemning authority, the entire Percentage Share, and all obligations for contribution to Common Expenses and other costs and expenses allocated to such Unit, shall be automatically reallocated to the remaining Unit(s) in proportion to the respective Percentage Share before the taking, and the Association shall promptly prepare, execute, and record an amendment to the Declaration reflecting such reallocations. Any remnant of a Unit remaining within the Condominium Property after a part of a Unit is taken under this subsection shall thereafter be a Common Element. 12.3 Partial Taking. If part of a Unit is acquired by eminent domain, other than under the circumstances contemplated by Section 12.2, this Section 12.3 will control. (a) The provisions of Section 11 shall be applicable in substantially the same manner as if loss resulted from a Casualty rather than a Taking and the proceeds were insurance proceeds rather than awards arising from such Taking; provided, that in the case of a Taking, Restoration that a Unit Owner would be obligated to perform under Section 11 shall be limited in the case of a Taking by the fact that the Unit Owner or Unit Owners may no longer have title to or possession of portions of Units or Common Elements, and in such case the Unit Owners' obligations shall be limited to effecting such Restoration as shall be feasible in light of the effects of such Taking. -41- 0 9 (b) Upon acquisition of a portion of any Unit by the condemning authority, (1) the Unit Owners' Percentage Shares (and their respective obligations for Common Expenses) shall be adjusted on the basis of the new floor area of the affected Unit(s) in accordance with the provisions of Section 5, and (2) the Unit Owner's Allocated Interests shall be prorata adjusted in accordance with the provisions of Section 5. 12.4 Limitation on Distribution After Taking. In no event shall the aggregate amount distributed to the affected Unit Owner(s) exceed the total amount of any award paid by the condemning authority with respect to any Taking. 13. Enforcement. 13.1 Compliance and Default. Declarant, during the time period it owns any of the Units, hereby covenants and agrees, and each Unit Owner, by acceptance of a deed therefor, whether or not it shall be so expressed in any such deed, including any purchaser at a judicial sale, shall hereafter be deemed to covenant and agree that each Unit Owner shall be governed by and shall comply with the terms of the Declaration and the rules and regulations adopted pursuant to the Declaration, as the Declaration and said rules and regulations may be amended from time to time, as provided in this Declaration. In the event a Unit Owner or its Pemittee fails: (i) to maintain a Unit or fails to cause such Unit to be maintained in accordance with the requirements of this Declaration; or (ii) fails to observe and perform all the covenants and provisions of this Declaration and the rules and regulations, in the manner required by this Declaration, then, in addition to all other rights and remedies established or permitted by this Declaration, and subject to notice and reasonable cure rights established by the Board, (i) the Association shall have the right, subject to the provisions of Section 19.6 below hereof, to proceed in a court of equity to require performance and/or compliance, to impound any applicable funds, to sue in a court of law for damages, to assess the Unit Owner and the Unit for sums necessary to do whatever work is required to put the Unit Owner or Unit in compliance and to collect such Special Assessment and have a lien therefor as elsewhere provided. In addition, the Association shall have the right, for itself and its employees and agents, to enter the Unit and perform the necessary work to enforce compliance with the above provisions (by force, if necessary), without having committed a trespass or incurred any other liability to the Unit Owner, and/or (ii) subject to the provisions of Section 19.6, any Unit Owner may bring an action at law or in equity for damages, injunctive relief, or otherwise, in order to require performance and/or compliance with the Declaration and the rules and regulations (ail as amended from time to time, in accordance with the terms of this Declaration), and to collect for its losses and damages allowed under this Declaration and to have a lien therefor as provided in Section 6.1(d)(i) hereof, and/or to sue under the provisions of this Declaration or under the Act. 13.2 Dispute Resolution Plan. Notwithstanding anything herein contained to the contrary, if this Declaration calls for the approval, consent, or acknowledgement of a Unit Owner with respect to any matter or action to be taken by any other Unit Owner(s), and such requested approval, consent, or acknowledgement is not given, or if a dispute arises among Unit Owners or any Unit Owner and the Association, then, such dispute shall be submitted in writing by the aggrieved Unit Owner to the Board of Directors for resolution, with a copy to the other Unit Owners. If, within five (5) business days, the Board of Directors is not able to unanimously agree upon the resolution of such dispute, and such five (5) day period is not extended by mutual agreement of the Unit Owners, then the Board of Directors shall take the following action: -42- 0 0 (a) If the matter in dispute can be reduced to monetary terms, and such monetary terms are less than $500,000.00, the Board of Directors may select and rely upon one person, meeting the qualifications set forth in subparagraph (d) below, to resolve such dispute. If, within three (3) business days, the Board is unable to unanimously agree upon one person to resolve such dispute then: (I) within three (3) business days following their failure to select an individual, the members of the Board of Directors designated by the Retail Unit A Owner shall appoint one (1) representative (meeting the qualifications of subparagraph (d)) and the members of the Board of Directors designated by the Parking Unit Owner shall appoint one (1) representative (meeting the qualifications of subparagraph (d) below); (ii) within three (3) business days of their collective selection, the two representatives selected by the Directors shall select a third representative (meeting such standards); and, (iii) the three representatives shall meet within three (3) business days of their collective appointment (or at such reasonable time thereafter as a majority of said representatives may agree upon) to decide the disputed issue. If the Directors representing one Unit shall fail to timely appoint a representative, the Director; representing the other Units may appoint such representative. The disputed issue shall be resolved by not less than a majority vote of the representatives, and any fees or expenses incurred by these representatives in connection with the dispute resolution shall be bome equally by both Unit Owners. The representative(s) shall be discharged by the Directors as soon as a decision has been reached. (b) If the matter in dispute can be reduced to monetary terms, and such monetary terms are $500,000.00 or greater, the dispute shall be promptly submitted by the Directors for binding arbitration in accordance with the Florida Arbitration Code (Florida Statutes Chapter 682) for decision by a panel of not less than three arbitrators. (c) If the matter in dispute cannot be reduced to monetary terms, the Directors may mutually agree to use one individual or the three-representative panel process described in subparagraph (a) above; provided, however, if such agreement as to the choice of one individual or a three-member panel cannot be mutually reached by the Directors within three (3) business days, then the matter in dispute shall be submitted to formal arbitration under the Florida Arbitration Code as described in subparagraph (b) above. (d) The individual, representatives, or arbitrators selected in accordance with this Section 13.2 shall be professionals or experts in the substantive area in which the dispute has arisen. For example; if the dispute arises from an engineering issue, the Directors shall select the appropriate professional engineer(s) (i.e. civil, structural, mechanical, or electrical); if the matter involves business management, building operating expenses, etc., the Directors shall select a past officer(s) of the local building owners and managers association. Such examples are used by way of illustration and not by way of limitation concerning the type of professional and/or expert to be selected by the Directors to resolve disputes in accordance with this Section. (e) Declarant, during the time period it owns its Unit, hereby covenants and agrees, and each Unit Owner, by acceptance of a deed therefor, whether or not it shall be so expressed in any such deed, including any purchaser at a judicial sale, shall hereafter be deemed to covenant and agree to be bound by the decision of such representative(s) or arbitration -43- 0 0 once the appropriate resolution procedure is instituted, and each Unit owner shall immediately comply with decisions of such representative(s) or arbitration. (f) Notwithstanding anything in this Section 13.2 to the contrary, the dispute resolution procedures set forth herein are not intended to resolve breach of covenants, provisions, and obligations of the parties under this Declaration, but are intended to provide a mechanism for the resolution of differences when good faith attempts by the Unit Owners or the Directors of the Association to resolve disputes have resulted in impasse. 13.3 Costs and Attomeys Fees. In any proceeding arising under this Declaration, the prevailing party shall be entitled to recover the costs of the proceeding, as well as reasonable attorneys' fees before and at trial, on appeal, in bankruptcy and in post judgment collection, as may be awarded by the court 13.4 No Waiver of Rights. The failure of the Association or any Unit Owner to enforce any covenant, restriction or other provision of the Condominium Act, this Declaration and/or the rules and regulations shall not constitute a waiver of the right to do so thereafter. 14. Amendments. 14.1 Amendment. Except as elsewhere provided herein, amendments may be effected as follows: (a) By The Association. Notice of the subject matter of a proposed amendment shall be included in the notice of any meeting at which a proposed amendment is to be considered. A resolution for the adoption of a proposed amendment may be proposed either by a majority of the Board of Directors of the Association or by not less than one- third (1/3) of the Unit Owners. Except as elsewhere provided, approvals must be by an affirmative vote representing four fifths (4/5ths) of the voting interests of all Unit Owners. No amendment shall be effective unless each mortgagee shall join in the execution of such amendment. (b) Material Amendments. Unless otherwise provided specifically to the contrary in this Declaration, no amendment shall change the configuration or size of any Unit in any material fashion, materially after or modify the appurtenances to any Unit, change the voting requirements (as set forth in Section 5.3 hereof) or change the percentage by which the Owner of a Unit shares the Common Expenses and owns the Common Elements and Common Surplus (any such change or alteration being a "Material Amendment', unless the record Owner(s) thereof shall join in the execution of the amendment and the amendment is otherwise approved by an affirmative vote representing four fifths (4/5ths) of the voting interests of all Unit Owners. The acquisition of property by the Association, material alterations or substantial additions to such property or the Common Elements by the Association or to the Shared Components by a Responsible Unit Owner, if in accordance with the provisions of this Declaration, shall not be deemed to constitute a material alteration or modification of the appurtenances of the Units, and accordingly, shall not constitute a Material Amendment. (c) By or Affectina the Declarant. Notwithstanding anything herein contained to the contrary, during the time the Declarant has the right to elect a majority of the Board of Directors of the Association, this Declaration, or its exhibits, may be amended by the Declarant alone, -44- L_J E-7 without requiring the consent of any other party, to effect any change whatsoever, except for an amendment: (a) to permit time-share estates (which must be approved, if at all, by all Unit Owners and mortgagees on Units); or (b) to effect a "Material Amendment which must be approved, if at all, in the manner set forth in Subsection 14.1(b) above. The unilateral amendment right set forth herein shall include, without limitation, the right to correct scrivener's errors. No amendment may be adopted (whether to this Declaration or any of the Exhibits hereto) which would eliminate, modify, prejudice, abridge or otherwise adversely affect any rights, benefits, privileges or priorities granted or reserved to the Declarant, without the prior written consent of the Declarant in each instance. 14.2 Execution and Recording. An amendment shall be evidenced by a certificate of the Association, executed either by the President of the Association or by the Owner(s) voting in favor of the amendment provided they have sufficient voting interests to adopt the amendment, and shall include recording data identifying the Declaration and shall be executed with the same formalities required for the execution of a deed. An amendment of the Declaration is effective when the applicable instrument is properly recorded in the public records of the County. No provision of this Declaration shall be revised or amended by reference to its title or number only. Proposals to amend existing provisions of this Declaration shall contain the full text of the provision to be amended; new words shall be inserted in the text underlined; and words to be deleted shall be lined through with hyphens. However, if the proposed change is so extensive that this procedure would hinder, rather than assist, the understanding of the proposed amendment, it is not necessary to use underlining and hyphens as indicators of words added or deleted, but, instead, a notation must be inserted immediately preceding the proposed amendment in substantially the following language: "Substantial rewording of Declaration. See provision ... for present text." Nonmaterial errors or omissions in the amendment process shall not invalidate an otherwise properly adopted amendment. 15. Termination of Condominium. Except as otherwise provided by the Act, the Condominium shall continue until terminated by casualty loss, condemnation or eminent domain, as more particularly provided in this Declaration, or (iii) such time as withdrawal of the Condominium Property from the provisions of the Act is authorized by a vote of Owners owning representing all of the total Voting Interests and all mortgagees of all Units. In the event such withdrawal is authorized as aforesaid, the Condominium Property shall be subject to an action for partition by any Unit Owner, mortgagee or liienor as if owned in common in which event the net proceeds of the partition sale shall be divided among all Unit Owners in proportion to their respective interests in the Common Elements, provided, however, that no payment shall be made to a Unit Owner until there has first been paid off, out of his share of such net proceeds, all mortgages and liens on his Unit in the order of their priority. The termination of the Condominium, as aforesaid, shall be evidenced by a certificate of the Association executed by its President and Secretary, certifying as to the basis of the termination and said certificate shall be recorded among the public records of the County. 16. Additional Rights of Mortgagees and Others. 16.1 Availability of Association Documents. The Association shall have current and updated copies of the following available for inspection by Mortgagees during normal business hours or under other reasonable circumstances as determined by the Board: this Declaration; (c) the Articles; (d) the By-Laws; (e) the rules and regulations of the Association; and (f) the books, records and financial statements of the Association. -45- • 0 16.2 Notices. Any holder, insurer or guarantor of a mortgage on a Unit shall have, if first requested in writing from the Association, the right to timely written notice of: (a) any condemnation or casualty loss affecting a material portion of the Condominium and/or Association Property or the affected mortgaged Unit; (b) any notice of default given by the Association to the Owner of the affected mortgaged Unit; (c) any notice of default given by a Responsible Unit Owner to the Owner of the affected mortgaged Unit; (d) any notice of default given to a Responsible Unit Owner of an affected mortgaged Unit; (e) a sixty (60) day delinquency in the payment of the Assessments on a mortgaged Unit; (f) the occurrence of a lapse, cancellation or material modification of any insurance policy maintained by the Association; (g) any proposed action which requires the consent of a specified number of mortgage holders. 17. Covenant Running With the Land. All provisions of this Declaration, the Articles, By-Laws and applicable rules and regulations of the Association, shall, to the extent applicable and unless otherwise expressly herein or therein provided to the contrary, be perpetual and be construed to be covenants running with the Land and with every part thereof and interest therein, and all of the provisions hereof and thereof shall be binding upon and inure to the benefit of the Declarant and subsequent owner(s) of the Land or any part thereof, or interest therein, and their respective heirs, personal representatives, successors and assigns, but the same are not intended to create nor shall they be construed as creating any rights in or for the benefit of the general public. All present and future Unit Owners, tenants and occupants of Units shall be subject to and shall comply with the provisions of this Declaration, the Articles, By-Laws and applicable rules and regulations, all as they may be amended from time to time. The acceptance of a deed or conveyance, or the entering into of a lease, or the entering into occupancy of any Unit, shall constitute an adoption and ratification of the provisions of this Declaration, and the Articles, By-Laws and applicable rules and regulations of the Association, all as they may be amended from time to time, including, but not limited to, a ratification of any appointments of attomeys-in-fact contained herein. 18. Disclaimer of Warranties. Declarant hereby disclaims any and all express or implied warranties as to design, construction, sound transmission, furnishing and equipping of the Condominium Property, except only those set forth in section 718.203 of the Act, to the extent applicable and to the extent that same have not expired by their terms. As to such warranties which cannot be disclaimed, and to other claims, if any, which can be made as to the aforesaid matters, all incidental and consequential damages arising therefrom are hereby disclaimed. All unit owners, by virtue of acceptance of title to their respective units (whether from the Declarant or another party) shall be deemed to have automatically waived all of the aforesaid disclaimed warranties and incidental and consequential damages. -46- 19. Additional Provisions. 19.1 Notices. All notices to the Association required or desired hereunder or under the By-Laws of the Association shall be sent by certified mail (return receipt requested) or recognized overnight courier service to the Association in care of its office at the Condominium, or to such other address as the Association may hereafter designate from time to time by notice in writing to all Unit Owners. Except as provided specifically in the Act, all notices to any Unit Owner shall be sent by certified mail or recognized overnight courier service to the Condominium address of such Unit Owner, or such other address as may have been designated by him from time to time, in writing, to the Association. All notices to mortgagees of Units shall be sent by first class mail to their respective addresses, or such other address as may be designated by them from time to time, in writing to the Association. All notices shall be deemed to have been given when mailed in a postage prepaid sealed wrapper, except notices of a change of address, which shall be deemed to have been given when received, or 5 business days after proper mailing, whichever shall first occur. 19.2 Mortgagees. Anything herein to the contrary notwithstanding, the Association shall not be responsible to any mortgagee or lienor of any Unit hereunder, and may assume the Unit is free of any such mortgages or liens, unless written notice of the existence of such mortgage or lien is received by the Association. 19.3 Exhibits. There is hereby incorporated in this Declaration all materials contained in the Exhibits annexed hereto, except that as to such Exhibits, any conflicting provisions set forth therein as to their amendment, modification, enforcement and other matters shall control over those hereof. 19.4 Signature of President and Secretary. Wherever the signature of the President of the Association is required hereunder, the signature of a vice-president may be substituted therefor, and wherever the signature of the Secretary of the Association is required hereunder, the signature of an assistant secretary may be substituted therefor, provided that the same person may not execute any single instrument on behalf of the Association in two separate capacities. 19.5 Goveming Law. Should any dispute or litigation arise between any of the parties whose rights or duties are affected or determined by this Declaration, the Exhibits annexed hereto or applicable rules and regulations adopted pursuant to such documents, as the same may be amended from time to time, said dispute or litigation shall be governed by the laws of the State of Florida. 19.6 Limitation on Liability. Notwithstanding anything contained in this Declaration to the contrary, except with respect to payment of Common Expenses and Allocated Expenses, Unit Owners shall not have any personal liability for any obligations set forth in this Declaration. The recourse of an aggrieved party with respect to any breach of a Unit Owner of any obligations set forth in this Declaration shall be limited to obtaining specific performance, injunctive relief or other equitable relief, filing and foreclosing upon the liens described in this Declaration, and/or the procurement of a judgment for damages against a Unit Owner provided that the judgment is satisfied solely by foreclosure of such Owner's Unit in accordance with applicable law. 19.7 Severabili . The invalidity in whole or in part of any covenant or restriction, or any section, subsection, sentence, paragraph, clause, phrase or word, or other provision of this Declaration, the Exhibits annexed hereto, or applicable rules and regulations adopted pursuant to such documents, as the same may be amended from time to time, shall not affect the validity of the remaining portions thereof which shall remain in full force and effect. -47- 0 - 0 19.8 Estoaoel Certificates. Each Unit Owner or the Association, as the case may be, shall, from time to time, within ten (10) days after receipt of written request from any other Unit Owner or Mortgagee execute, acknowledge and deliver to such other Unit Owner, Mortgagee, or their designee a certificate ("Estoppel Certificate") stating to the best of their knowledge, without inquiry: (a) That the terms and provisions of this Declaration are unmodified and are in full force and effect, or, if modified, identifying any such modifications; (b) Whether there is any existing default hereunder by any other Unit Owners or the Association and, if so, specifying the nature and extent thereof; (c) Whether there are any sums which the Unit Owner executing such Estoppel Certificate is entitled to receive or demand from any of the other Unit Owners, and if there is any such sum, specifying the nature and amount thereof and method of computation; (d) In the case of the Association, confirmation of the current budget, and whether there are any outstanding, unpaid Assessments or Charges, or currently proposed Assessments or Changes; (e) Whether the Unit Owner or Association has performed or is performing work, the cost of which is chargeable in whole or in part to any of the other Unit Owners under the provisions hereof, but has not yet been charged to any such Unit Owner, and if there be any such work, specifying the nature and extent thereof, (f) The nature and extent of any set-offs, claims, counterclaims or defenses then being asserted, or otherwise known by a Unit Owner or the Association against the enforcement of any other Unit Owner's obligations hereunder, (g) Whether any Unit Owner has requested that a matter be submitted to arbitration and the nature of any arbitration proceeding or finding made within ninety (90) days preceding the date of the Estoppel Certificate; (h) Such other matters as may be reasonably requested. 19.9 Ratification. Each Unit Owner, by reason of having acquired ownership (whether by purchase, gift, operation of law or otherwise), and each occupant of a Unit, by reason of his occupancy, shall be deemed to have acknowledged and agreed that all of the provisions of this Declaration, and the Articles and By-Laws of the Association, and applicable rules and regulations, are fair and reasonable in all material respects. 19.10 Gender: Plurality. Wherever the context so permits, the singular shall include the plural, the plural shall include the singular, and the use of any gender shall be deemed to include all or no genders. 19.11 Indemnification: Waivers of Claims. (a) Indemnification. To the extent not covered by the insurance required under Section 13 above, each Unit Owner, by taking title to a Unit, is hereby deemed to covenant to indemnify, defend, and hold harmless the Association, each other Unit Owner, its Mortgagee(s), and their respective partners, officers, directors, shareholders, members, managers, employees, and agents (each an "Indemnified Party") from and against any and all claims, actions, damages, liabilities and demands asserted by thins persons (other than Indemnified Parties), including those for loss of life, personal injury and property damage, occasioned by or arising directly or indirectly, out of or in connection with the use, occupancy, operation or ownership (as applicable) by such Unit Owner of its Unit, Common Elements, or easement areas, or the failure of such Unit Owner to perform any obligation with respect to those Common Elements or easement areas which such Owner is required to operate, maintain, and/or repair under the terms of this Declaration, except with respect to Laws pertaining to environmental matters. An Indemnified Party shall provide the indemnifying Unit Owner (the 'Indemnifying Owned') with prompt notice of any claim or other matter for which the Indemnified Party may seek indemnity under this -48- paragraph; provided, however, the failure to provide such notice shall relieve the Indemnifying Owner of its indemnity obligations only to the extent that the Indemnifying Owner is damaged or prejudiced by such failure. The Indemnifying Owner shall defend the Indemnified Party with respect to any such claim at the Indemnifying Owner's expense, with attorneys selected by the Indemnifying Owner who may also represent the Indemnifying Owner. If the Indemnified Party retains separate attorneys for its defense, it shall do so at its own expense. The Indemnifying Owner shall have sole right to conduct such defense (including decisions concerning the forum) and settle any claim, suit, proceeding, or other matter brought by the third party, so long as the Indemnified Party is released from any liability with respect to such claim. The Indemnified Party shall cooperate with the Indemnifying owner in the defense of any claim, including providing documents and witnesses. (b) Waivers of Claims. The Association and each Unit Owner, for itself and its Permittees, successors and assigns, hereby waives, as against all other Unit Owners and their respective Mortgagees, tenants, managers, operators, Permittees, and any other person claiming by, through, or under any Unit Owner, and any director, officer, constituent partner, member, shareholder, agent, or employee of any the foregoing, all claims arising from any loss, damage, or liability to the extent that (i) such claims are covered by any insurance policy maintained by the Association or any Unit Owner pursuant to this Declaration and (ii) such waiver either (x) is expressly contemplated by such policy (including any policy providing for a waiver of the insurer's subrogation rights) or (y) does not invalidate the applicable policy or any coverages provided thereby. It is the express intention of this provision that, where possible, the Unit Owners and the Association desire to allocate the risks of loss or liability to the insurers under the insurance policies provided for herein, and accordingly the foregoing waivers should be liberally construed and applied notwithstanding statutory provisions or judicial principles disfavoring waivers of Claims for future conduct. Each Unit Owner and the Association agrees to include in each lease, property management agreement, Retail management or operating agreement, concession license, or other instrument or agreement entered into after the date hereof by which possession or use of any Unit or any part of the Common Elements is conveyed or granted, a waiver of claims provision consistent with the provisions of this Subsection. 19.12 Adiustment of Dollar Amounts. In every instance where this Declaration refers to a specific dollar amount, such amount shall be increased on every fifth anniversary of the recording of this Declaration, to reflect the increase, if any, in the consumer price index ('CPI'). This adjustment shall be made by multiplying each dollar amount by a fraction, the denominator of which is the CPI published for the month in which this Declaration is recorded, and the numerator of which is the CPI published for the most recent month prior to each fifth anniversary of the recording. The CPI used for this purpose is the U.S. Department of Labor's Bureau of Labor Statistics Consumer Price Index - All Items, Miami, Florida (1982-1984 =100) or the successor thereto which is a comparable measure of inflation. The Association shall be responsible to make such adjustments and notify all Unit Owners. 19.13 Captions. The captions herein and in the Exhibits annexed hereto are inserted only as a matter of convenience and for ease of reference and in no way define or limit the scope of the particular document or any provision thereof. -49- f?J IN WITNESS WHEREOF, the Declarant has caused this Declaration to be duly executed and its corporate seal to be hereunto affixed as of the day of , 20-. Witnessed by: Name: L.O.M., Inc., a Florida corporation By: Name: Title: Name: STATE OF SS: COUNTY OF ) (Corporate Seal) The foregoing Declaration was acknowledged before me, this _ day of , by of LOX, Inc., a Florida corporation on behalf of said corporation. He/she is personally known to me or has produced as identification. My Commission Expires: Name: Notary Public, State of Florida Commission No.: (Notarial Seal) -50- • • JOINDER SURF STYLE CLEARWATER BEACH CONDOMINIUM ASSOCIATION, INC., a Florida corporation not for profit, hereby agrees to accept all the benefits and all of the duties, responsibilities, obligations and burdens imposed upon it by the provisions of this Declaration and Exhibits attached hereto. IN WITNESS WHEREOF, SURF STYLE CLEARWATER BEACH CONDOMINIUM ASSOCIATION, INC. has caused these presents to be signed in its name by its proper officer and its corporate seal to be affixed this day of , 200 Witnessed by: SURF STYLE CLEARWATER BEACH CONDOMINIUM ASSOCIATION, INC., a Florida corporation not for profit Name: Name: STATE OF FLORIDA ) ) SS: COUNTY OF PINELLAS } By: Name: Title: [CORPORATE SEAL) The foregoing joinder was acknowledged before me this day of , by as President of SURF STYLE CLEARWATER BEACH CONDOMINIUM ASSOCIATION, INC., a Florida corporation not-for-profit, on behalf of said corporation. He/she is personally known to me or has produced as identification. Name: My Commission Expires: Notary Public, State of Florida Commission No.: (Notarial Seal) -51- 0 0 EXHIBIT 1 LOM PROPERTY PARCEL 1: Lot 110, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. PARCEL 2: Lots 60, 61 and 62, and the Southerly one-half of Lot 107 and all of the Lots 108 and 109, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. TOGETHER WITH THE FOLLOWING DESCRIBED PARCELS: The Easterly 1/2 of Gulfview Boulevard lying West of and adjacent to the Westerly boundaries of Lots 60, 61 and 62, THE LLOYD-WHITE-SKINNER SUBDIVISION, as recorded in plat book 13 on pages 12 and 13 of the Public Records of Pinellas County, Florida, more particularly described as follows: Begin at the Northwest corner of said Lot 60; thence 180.12 feet along the Westerly boundary of said Lots 60, 61 and 62, and along the arc of a curve to the right with a radius of 6017.52 feet, subtended by a chord distance of 180.11 feet, bearing S08°35'03"W to the Southwest corner of said Lot 62; thence N80°34'24"W along the Westerly extension of the Southerly boundary of said Lot 62, a distance of 35.00 feet to a point of intersection with the centerline of said Gulfview Boulevard, a 70 foot wide right of way; thence 179.08 feet along said centerline and along the are of a curve to the left with a radius of 5982.52 feet, subtended by a chord distance of 179.08 feet, bearing N08°35'03"E to a point of intersection with the Westerly extension of the Northerly boundary of said Lot 60; thence S82°15'44"E a distance of 35.00 feet to the Point of Beginning. • EXHIBIT "2„ Survey Plot Plans To be supplemented • -53- • EXHIBIT "3" Allocated Interests is The Allocated Interest shall vary depending on the nature of the Allocated Expense. In the event of any dispute as to the proper categorization of the Allocated Expense, either party shall have the right to implement the Dispute Resolution procedures in accordance with Section 13.2 of this Declaration. The Allocated Interests are as follows: Allocated Expense: Allocated Interest Allocated Interest of Allocated Interest of of Retail Unit A Retail Unit B Parkin Unit Insurance 35% 15% 50% Landscaping: Off-site Perimeter 75% 25% 0% sidewalks and landscaping 0% Central Pass-thru 75% 25% Cleaning: Exterior and Marble Floor 45% 45% 10% Trash Removal & Compactor 45% 45% 10% Recycling 50% 50% 0% Window Cleaning 70% 30% 0% Maintenance and Repairs: Responsible for Responsible for 100% Responsible for 100% Fire/Emergency Systems 100% of ifs own of its own separate of it's own separate Radios and Repeater separate systems - systems systems Stairways HVAC Other Maintenance and Repairs Utilities and Services: Responsible for Responsible for 1000/6 Responsible for 100% Electricity 100% of its own of ifs own separate of its own separate Water and Sewer separate systems systems systems Alarm Monitoring Extermination Drainage (and injection wells) -54- Roof/Water Resistant Membranes 1/7th shared 1/71? shared between 6170, between the Retail the Retail Units in Units in accordance accordance with their with their respective respective percentages of percentages of ownership of the ownership of the Common Elements Common Elements Common Parking Facilities (drives, 117t' shared 1/71h shared between 617th ramps, access control systems) between the Retail the Retail Units in Units in accordance accordance with their with their respective respective percentages of percentages of ownership of the ownership of the Common Elements Common Elements Life Safety Systems Responsible for Responsible for 100% Responsible for 100% 1001/6 of it's own of it's own separate of it's own separate separate stems systems systems Exterior Lighting 35% 15% 50% -55- Exhibit "4" • BY-LAWS OF SURF STYLE CLEARWATER BEACH CONDOMINIUM ASSOCIATION, INC., A corporation not for profit organized under the laws of the State of Florida 1. Identity. These are the By-Laws of SURF STYLE CLEARWATER BEACH CONDOMINIUM ASSOCIATION, INC., (the "Association'), a corporation not for profit incorporated under the laws of the State of Florida, and organized for the purposes set forth in its Articles of Incorporation. 1.1 Fiscal Year. The fiscal year of the Association shall be the twelve month period commencing January 1 st and terminating December 31st of each year. 1.2 Seal. The seal of the Association shall bear the name of the corporation, the word 'Florida", the words 'Corporation Not for Profit, and the year of incorporation. 2. Definitions. For convenience, these By-Laws shall be referred to as the 'By-Laws" and the Articles of Incorporation of the Association as the "Articles'. The other terms used in these By-Laws shall have the same definitions and meanings as those set forth in the Declaration for SURF STYLE CLEARWATER BEACH CONDOMINIUM, unless herein provided to the contrary, or unless the context otherwise requires. 3. Members. 3.1 Annual Meeting. The annual members' meeting shall be held on the date, at the place and at the time determined by the Board of Directors from time to time, provided that there shall be an annual meeting every calendar year and the location of the annual meeting shall be within 45 miles of the Condominium Property. The purpose of the meeting shall be, except as provided herein to the contrary, to elect Directors, and to transact any other business authorized to be transacted by the members, or as stated in the notice of the meeting sent to Unit Owners in advance thereof. Unless changed by the Board of Directors, the first annual meeting shall be held in the month of October following the year in which the Declaration is filed. 3.2 Special Meetings. Special members' meetings shall be held at such places as provided herein for annual meetings, and may be called by the President or by a majority of the Board of Directors of the Association, and must be called by the President or Secretary upon receipt of a written request from a majority of the members of the Association. The business conducted at a special meeting shall be limited to those agenda items specifically identified in the notice of the meeting. Special meetings may also be called by Unit Owners in the manner provided for in the Act. Notwithstanding the foregoing: (i) as to special meetings regarding the adoption of the Condominium's estimated operating budget, reference should be made to Section 718.111(2)(e), Florida Statutes; and (ii) as to special meetings regarding recall of Board members, reference should be made to Section 718.111(2)6), Florida Statutes. 3.3 Participation b Unit Owners. Members shall have the right to speak at the annual and special meetings of the Members, committee meetings and Board meetings with reference to all designated agenda items. 3.4 Notice of Meeting: Waiver of Notice. Notice of a meeting of members (annual or special), stating the time and place and the purpose(s) for which the meeting is called, shall be given by the President or Secretary. A copy of the notice shall be posted at a conspicuous place on the Condominium Property. The notice of an annual or special meeting shall be hand delivered, electronically transmitted or sent by regular mail to each Unit Owner, unless the Unit Owner waives in writing the right to receive notice of the annual meeting by mail. The delivery or mailing shall be to the address of the member as last furnished to the Association by the Unit Owner. However, if a Unit is owned by more than one person, the Association shall provide notice, for meetings and all other purposes, to that one address initially identified for that purpose by the Declarant and thereafter as one or more of the Owners of the Unit shall so advise the Association in writing, or if no address is given or if the Owners disagree, notice shall be sent to the address for the Owner as set forth on the deed of the Unit. The posting and mailing of the notice for either special or annual meetings, which notice shall incorporate an identification of agenda items, shall be effected not less than fourteen (14) continuous days. The Board shall adopt by rule, and give notice to Unit Owners of, a specific location on the Condominium Property upon which all notices of members' meetings shall be posted. In lieu of or in addition to the physical posting of notice of any meeting of the Unit Owners on the Condominium Property, the Association may, by reasonable rule, adopt a procedure for conspicuously posting and repeatedly broadcasting the notice and the agenda on a closed-circuit cable television system serving the Association, if any. However, if broadcast notice is used in lieu of a notice posted physically on the Condominium Property, the notice and agenda must be broadcast at least four times every broadcast hour of each day that a posted notice is otherwise required. When broadcast notice is provided, the notice and agenda must be broadcast in a manner and for a sufficient continuous length of time so as to allow an average reader to observe the notice and read and comprehend the entire content of the notice and the agenda. Notice of specific meetings may be waived before or after the meeting and the attendance of any member (or person authorized to vote for such member), either in person or by proxy, shall constitute such member's waiver of notice of such meeting, and waiver of any and all objections to the place of the meeting, the time of the meeting or the manner in which it has been called or convened, except when his (or his authorized representative's) attendance is for the express purpose of objecting at the beginning of the meeting to the transaction of business because the meeting is not lawfully called. An officer of the Association, or the manager or other person providing notice of the meeting shall provide an affidavit or United States Postal Service certificate of mailing, to be included in the official records of the Association, affirming that notices of meetings were posted and mailed or hand delivered in accordance with this Section and Section 718.112(2)(d) of the Act, to each Unit Owner at the appropriate address for such Unit Owner. No other proof of notice of a meeting shall be required. 3.5 Quorum. Except as otherwise provided by law, a quorum at Members' meetings shall be attained by the presence, either in person or by proxy (limited or general), of all Members of the Association. The acts approved by all of the voters present at a meeting at which a quorum is present shall constitute the acts of the Members. 3.6 Voting• (a) Number of Votes. In any meeting of members, the Owners of each Unit shall be entitled to cast the number of votes designated for their Unit as set forth in the Articles. The vote of a Unit shall not be divisible. By-Laws -2- (bj Voting Member. If a Unit is owned by one person, that person's right to vote shall be established by the roster of members. If a Unit is owned by more than one person, those persons (including husbands and wives) shall decide among themselves as to who shall cast the vote of the Unit. In the event that those persons cannot so decide, no vote shall be cast. A person casting a vote for a Unit shall be presumed to have the authority to do so unless the President or the Board of Directors is otherwise notified. If a Unit is owned by a corporation, partnership, limited liability company, trust or any other lawful entity, the person entitled to cast the vote for the Unit shall be designated by a certificate signed by persons having lawful authority to bind the corporation, partnership, limited liability company, trust or other lawful entity and filed with the Secretary of the Association. Such person need not be a Unit Owner. Those certificates shall be valid until revoked or until superseded by a subsequent certificate or until a change in the ownership of the Unit concerned. A certificate designating the person entitled to cast the vote for a Unit may be revoked by any record owner of an undivided interest in the Unit. If a certificate designating the person entitled to cast the vote for a Unit for which such certificate is required is not on file or has been revoked, the vote attributable to such Unit shall not be considered in determining whether a quorum is present, nor for any other purpose, and the total number of authorized votes in the Association shall be reduced accordingly until such certificate is filed. 3.7 Proxies. Votes to be cast at meetings of the Association membership may be cast in person or by proxy. Except as specifically provided herein, Unit Owners may not vote by general proxy, but may vote by limited proxies substantially conforming to the limited proxy form approved by the Division. No voting interest or consent right allocated to a Unit owned by the Association shall be exercised or considered for any purpose, whether for a quorum, an electron, or otherwise. Limited proxies shall be permitted to the extent permitted by the Act. No proxy, limited or general, shall be used in the election of Board members. General proxies may be used for other matters for which limited proxies are not required and may also be used in voting for nonsubstantive changes to items for which a limited proxy is required and given. A proxy may be made by any person entitled to vote, but shall only be valid for the specific meeting for which originally given and any lawful, adjourned meetings thereof. In no event shall any proxy be valid for a period longer than 90 days after the date of the first meeting for which it was given. Every proxy shall be revocable at any time at the pleasure of the person executing it. A proxy must be in writing, signed by the person authorized to cast the vote for the Unit (as above described), name the person(s) voting by proxy and the person authorized to vote for such person(s) and filed with the Secretary before the appointed time of the meeting, or before the time to which the meeting is adjourned. Each proxy shall contain the date, time and place of the meeting for which it is given and, if a limited proxy, shall set forth the matters on which the proxy holder may vote and the manner in which the vote is to be cast. There shall be no limitation on the number of proxies which may be held by any person (including a designee of the Declarant). If a proxy expressly provides, any proxy holder may appoint, in writing, a substitute to act in its place. If such provision is not made, substitution is not permitted. 3.8 Mourned Meetings. If any proposed meeting cannot be organized because a quorum has not been attained, the members who are present, either in person or by proxy, may adjourn the meeting from time to time until a quorum is present, provided notice of the newly scheduled meeting is given in the manner required for the giving of notice of a meeting. Except as required above, proxies given for the adjourned meeting shall be valid for the newly scheduled meeting unless revoked for reasons other than the new date of the meeting. By-Laws -3- 3.9 Order of Business. If a quorum has been attained, the order of business at annual members' meetings, and, if applicable, at other members' meetings, shall be: (a) Collect all ballots not yet cast; (b) Call to order by President; (c) Appointment by the President of a chairman of the meeting (who need not be a member or a director); (d) Appointment of inspectors of election; (e) Counting of Ballots for Election of Directors; (f) Proof of notice of the meeting or waiver of notice; (g) Reading of minutes; (h) Reports of officers; (i) Reports of committees; 0) Unfinished business; (k) New business; (1) Adjournment. Such order may be waived in whole or in part by direction of the chairman. 3.10 Minutes of Meeting. The minutes of all meetings of Unit Owners shall be kept in a book available for inspection by Unit Owners or their authorized representatives and Board members at any reasonable time. The Association shall retain these minutes for a period of not less than seven (7) years. 3.11 Action Without A Meeting. Anything to the contrary herein notwithstanding, to the extent lawful, any action required or which may be taken at any annual or special meeting of members, may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the members (or persons authorized to cast the vote of any such members as elsewhere herein set forth) having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting of members at which all members (or authorized persons) entitled to vote thereon were present and voted. In order to be effective, the action must be evidenced by one or more written consents describing the action taken, dated and signed by approving members having the requisite number of votes and entitled to vote on such action, and delivered to the Secretary of the Association, or other authorized agent of the Association. Written consent shall not be effective to take the corporate action referred to in the consent unless signed by members having the requisite number of votes necessary to authorize the action within sixty (60) days of the date of the earliest dated consent and delivered to the Association as aforesaid. Any written consent may be revoked prior to the date the Association receives the required number of consents to authorize the proposed action. A revocation is not effective unless in writing and until received by the Secretary of the Association, or other By4zn -4- authorized agent of the Association. Within ten (10) days after obtaining such authorization by written consent, notice must be given to members who have not consented in writing. The notice shall fairly summarize the material features of the authorized action. A consent signed in accordance with the foregoing has the effect of a meeting vote and may be described as such in any document. 4. Directors. 4.1 Mem hi . The affairs of the Association shall be governed by a Board of three (3) directors. Directors must be natural persons who are 18 years of age or older. Directors may not vote at Board meetings by proxy or by secret ballot. 4.2 Election of Directors. Election of Directors shall be held at the annual members' meeting, except as herein provided to the contrary and otherwise shall comply with the provisions set forth in the Articles and in the Act. 4.3 Organizational Meeting. The organizational meeting of newly-elected or appointed Directors shall be held within ten (10) days of their election or appointment. The directors calling the organizational meeting shall give at least three (3) days advance notice thereof, stating the time and place of the meeting. 4.4 Meetings. Meetings of the Board of Directors may be held at such time and place as shall be determined, from time to time, by a majority of the Directors. Meetings of the Board of Directors may be held by telephone conference, with those Directors attending by telephone counted toward the quorum requirement and may vote by telephone, provided that a telephone speaker must be used so that the conversation of those Directors attending by telephone may be heard by the Directors and any Unit Owners attending such meeting in person. Notice of meetings shall be given to each Director, personally or by mail, telephone or telegraph, and shall be transmitted at least three (3) days prior to the meeting. Meetings of the Board of Directors and any Committee thereof at which a quorum of the members of that Committee are present shall be open to all Unit Owners. 4.5 Waiver of Notice. Any Director may waive notice of a meeting before or after the meeting and that waiver shall be deemed equivalent to the due receipt by said Director of notice. Attendance by any Director at a meeting shall constitute a waiver of notice of such meeting, and a waiver of any and all objections to the place of the meeting, to the time of the meeting or the manner in which it has been called or convened, except when a Director states at the beginning of the meeting, or promptly upon arrival at the meeting, any objection to the transaction of affairs because the meeting is not lawfully called or convened. 4.6 Quorum. A quorum at Directors' meetings shall consist of the presence of all Directors. The acts approved by the unanimous vote of those present at a meeting at which a quorum is present shall constitute the acts of the Board of Directors. 4.7 Adjourned Meetings, If, at any proposed meeting of the Board of Directors, there is less than a quorum present, the majority of those present may adjourn the meeting from time to time until a quorum is present, provided notice of such newly scheduled meeting is given as required hereunder. At any newly scheduled meeting, any business that might have been transacted at the meeting as originally called may be transacted as long as notice of such business to be conducted at the rescheduled meeting is given, if required (e.g., with respect to budget adoption). By-Laws -5- 4.8 Joinder in Meeting by Approval of Minutes. The joinder of a Director in the action of a meeting by signing and concurring in the minutes of that meeting shall constitute the approval of that Director of the business conducted at the meeting, but such joinder shall not be used as a vote for or against any particular action taken and shall not allow the applicable Director to be counted as being present for purposes of quorum. 4.9 Presiding Officer. The presiding officer at the Directors' meetings shall be the President (who may, however, designate any other Unit Owner to preside). 4.10 Order of Business. If a quorum has been attained, the order of business at Directors' meetings shall be: (a) Proof of due notice of meeting; (b) Reading and disposal of any unapproved minutes; (c) Reports of officers and committees; (d) Election of officers; (e) Unfinished business; (f) New business; (g) Adjournment. Such order may be waived in whole or in part by direction of the presiding officer. 4.11 Minutes of Meetings. The minutes of all meetings of the Board of Directors shall be kept in a book available for inspection by Unit Owners, or their authorized representatives, and Board members at any reasonable time. The Association shall retain these minutes for a period of not less than seven years. 4.12 Committees. The Board may by resolution also create Committees and appoint persons to such Committees and vest in such Committees such powers and responsibilities as the Board shall deem advisable. 4.13 Proviso. Notwithstanding anything to the contrary contained in this Section 4.13 or otherwise, control of the Board shall be relinquished in accordance with the provisions of Section 718.301 of the Act (which is deemed incorporated herein). 4.14 Unanim' of Action. All actions of the Board of Directors, shall require unanimity of Directors. In the event, however, that the requisite unanimous vote is not obtained, the dissenting Director shall have the right to implement dispute resolution procedures in accordance with Section 13.2 of the Declaration. 5. Authority of the Board.. The Board of Directors shall have the powers and duties necessary for the administration of the affairs of the Condominium and may take all acts, through the proper officers of the Association, in executing such powers, except such acts which by law, the Declaration, the Articles or these By-Laws may not be delegated to the Board of Directors by the Unit Owners. By-Laws -6- • 6. 0 icersr1 6.1 Executive Qflr&rs. The executive officers of the Association shall be a President, a Vice- President, a Treasurer and a Secretary, all of whom shall be elected by the Board of Directors and who may be peremptorily removed at any meeting by concurrence of a majority of all of the Directors. The Board of Directors from time to time shall elect such other officers and designate their powers and duties as the Board shall deem necessary or appropriate to manage the affairs of the Association. 6.2 President. The President shall be the chief executive officer of the Association. He shall have all of the powers and duties that are usually vested in the office of president of an association. 6.3 Vice-President. The Vice-President shall exercise the powers and perform the duties of the President in the absence or disability of the President. He also shall assist the President and exercise such other powers and perform such other duties as are incident to the office of the vice president of an association and as may be required by the Directors or the President. 6.4 Secretary. The Secretary shall keep the minutes of all proceedings of the Directors and the members. The Secretary shall attend to the giving of all notices to the members and Directors and other notices required by law. The Secretary shall have custody of the seal of the Association and shall affix it to instruments requiring the seal when duly signed. The Secretary shall keep the records of the Association, except those of the Treasurer, and shall perform all other duties incident to the office of the secretary of an association and as may be required by the Directors or the President. 6.5 Treasurer. The Treasurer shall have custody of all property of the Association, including funds, securities and evidences of indebtedness. The Treasurer shall keep books of account for the Association in accordance with good accounting practices, which, together with substantiating papers, shall be made available to the Board of Directors for examination at reasonable times. The Treasurer shall submit a treasurer's report to the Board of Directors at reasonable intervals and shall perform all other duties incident to the office of treasurer and as may be required by the Directors or the President. All monies and other valuable effects shall be kept for the benefit of the Association in such depositories as may be designated by a majority of the Board of Directors. Fiduciary Duty. The officers and directors of the Association, as well as any manager employed by the Association, have a fiduciary relationship to the Unit Owners. 8. Compensation. Neither Directors nor officers shall receive compensation for their services as such, but this provision shall not preclude the Board of Directors from employing a Director or officer as an employee of the Association, nor preclude contracting with a Director or officer for the management of the Condominium or for any other service to be supplied by such Director or officer. Directors and officers shall be compensated for all actual and proper out of pocket expenses relating to the proper discharge of their respective duties. 9. Resignations. Any Director or officer may resign his post at any time by written resignation, delivered to the President or Secretary, which shall take effect upon its receipt unless a later date is specified in the resignation, in which event the resignation shall be effective from such date unless withdrawn. The acceptance of a resignation shall not be required to make it effective. 10. Roster of Unit Owners. Each Unit Owner shall file with the Association a copy of the deed or other document showing his ownership. The Association shall maintain such information. The Association may By-laws -7- 0 0 rely upon the accuracy of such information for all purposes until notified in writing of changes therein as provided above. Only Unit Owners of record on the date notice of any meeting requiring their vote is given shall be entitled to notice of and to vote at such meeting, unless prior to such meeting other Owners shall produce adequate evidence, as provided above, of their interest and shall waive in writing notice of such meeting. 11. Parliamentary Rules. Except when specifically or impliedly waived by the chairman of a meeting (either of members or directors), Roberts Rules of Order (latest edition) shall govem the conduct of the Association meetings when not in conflict with the Act, the Declaration, the Articles or these By-Laws; provided, however, that a strict or technical reading of said Roberts Rules shall not be made so as to frustrate the will of the persons properly participating in said meeting. 12. Amendments. These By-Laws may be amended in the same manner required for amendment to the . Declaration. 13. Rules and Regulations. The Board of Directors may, from time to time, adopt, and thereafter modify, amend or add to such rules and regulations regarding the Common Elements, except that subsequent to the date control of the Board is turned over by the Declarant to Unit Owners other than the Declarant, Owners of a majority of the Units may overrule the Board with respect to any such modifications, amendments or additions. Copies of such modified, amended or additional rules and regulations shall be furnished by the Board of Directors to each affected Unit Owner not less than thirty (30) days prior to the effective date thereof. At no time may any rule or regulation be adopted which would prejudice the rights reserved to the Declarant. 14. Electronic Transmission. For purposes hereof, 'electronic transmission" means any form of communication, not directly involving the physical transmission or transfer of paper, which creates a record that may be retained, retrieved, and reviewed by a recipient thereof and which may be directly reproduced in a comprehensible and legible paper form by such recipient through an automated process. Examples of electronic transmission include, but are not limited to, telegrams, facsimile transmissions of images, and text that is sent via electronic mail between computers. Notwithstanding the provision for electronic transmission of notices by the Association, same may be only be sent to Unit Owners that consent to receipt of Association notices by electronic transmission (and only for long as such consent remains in effect). Further, in no event may electronic transmission be used as a method of giving notice of a meeting called in whole or in part regarding the recall of a Director. 15. Construction. Wherever the context so permits, the singular shall include the plural, the plural shall include the singular, and the use of any gender shall be deemed to include all genders. To the extent not otherwise provided for or addressed in these By-Laws, the By-Laws shall be deemed to include the provisions of Section 718.112(2)(a) through (o) of the Act. 16. Caption . The captions herein are inserted only as a matter of convenience and for reference, and in no way define or limit the scope of these By-Laws or the intent of any provision hereof. By-Laws -8- 0 0 The foregoing was adopted as the By-Laws of SURF STYLE CLEARWATER BEACH CONDOMINIUM ASSOCIATION, INC., a corporation not for profit under the laws of the State of Florida, as of the day of .20-. Approved: , President , Secretary By-Lam -9- i Exhibit "5" ARTICLES OF INCORPORATION FOR SURF STYLE CLEARWATER BEACH CONDOMINIUM ASSOCIATION, INC. The undersigned incorporator, for the purpose of forming a corporation not for profit pursuant to the laws of the State of Florida, hereby adopts the following Articles of Incorporation: ARTICLE I NAME The name of the corporation shall be SURF STYLE CLEARWATER BEACH CONDOMINIUM ASSOCIATION, INC. For convenience, the corporation shall be referred to in this instrument as the "Association", these Articles of Incorporation as the "Articles", and the By-Laws of the Association as the "By-Laws". ARTICLE 2 OFFICE The principal office and mailing address of the Association shall be at 315 S. Gulfview Boulevard, Clearwater, Florida 33767, or at such other place as may be subsequently designated by the Board of Directors. All books and records of the Association shall be kept at its principal office or at such other place as may be permitted by the Act. ARTICLE 3 PURPOSE The purpose for which the Association is organized is to provide an entity pursuant to the Florida Condominium Act as it exists on the date hereof (the "Act") for the operation of that certain condominium located in Pinellas County, Florida, and known as SURF STYLE CLEARWATER BEACH CONDOMINIUM (the "Condominium"). MIA 180,800,532x71-28-10 0 9 ARTICLE 4 DEFINITIONS The terms used in these Articles shall have the same definitions and meanings as those set forth in the Declaration of the Condominium to be recorded in the Public Records of Pinellas County, Florida, unless herein provided to the contrary, or unless the context otherwise requires. ARTICLE 5 POWERS The powers of the Association shall include and be governed by the following: 5.1 General. The Association shall have all of the common-law and statutory powers of a corporation not for profit under the Laws of Florida, except as expressly limited or restricted by the terms of these Articles, the Declaration, the By-Laws or the Act. 5.2 Enumeration. The Association shall have all of the powers and duties set forth in the Act, except as limited by these Articles, the By-Laws and the Declaration (to the extent that they are not in conflict with the Act), and all of the powers and duties reasonably necessary to operate the Condominium pursuant to the Declaration and as more particularly described in the By-Laws, as they may be amended from time to time. 5.3 Association Property. All funds and the title to all properties acquired by the Association and their proceeds shall be held for the benefit and use of the members in accordance with the provisions of the Declaration, these Articles and the By-Laws. 5.4 Distribution of Income: Dissolution. The Association shall not pay a dividend to its members and shall make no distribution of income to its members, directors or officers, and upon dissolution, all assets of the Association shall be transferred only to another non-profit corporation or a public, agency or as otherwise authorized by the Florida Not For Profit Corporation Act (Chapter 617, Florida Statutes). 5.5 Limitation. The powers of the Association shall be subject to and shall be exercised in accordance with the provisions hereof and of the Declaration, the By-Laws and the Act, provided that in the event of MIA 180, 800,532v71-29-10 conflict, the provisions of the Act shall control over those of the Declaration and By-Laws. ARTICLE 6 MEMBERS 6.1 Membership. The members of the Association shall consist of all of the record title owners of Units in the Condominium from time to time, and after termination of the Condominium, shall also consist of those who were members at the time of such termination, and their successors and assigns. 6.2 Assignment. The share of a member in the funds and assets of the Association cannot be assigned, hypothecated or transferred in any manner except as an appurtenance to the Unit for which that share is held. 6.3 Vo_ tiny.. On all matters upon which the membership shall be entitled to vote, each Unit shall be entitled to the number off votes set forth in the Declaration. All votes shall be exercised or cast in the manner provided by the Declaration and By-Laws. Any person or entity owning more than one Unit shall be entitled to cast the aggregate number of votes attributable to all Units owned. 6.4 Meetings. The By-Laws shall provide for an annual meeting of members, and may make provision for regular and special meetings of members other than the annual meeting. ARTICLE 7 TERM OF EXISTENCE The Association shall have perpetual existence, unless dissolved in accordance with applicable law. ARTICLE 8 INCORPORATOR The name and address of the Incorporator of this Corporation is: Name Address MIA 180,800,532v7129-10 0 9 ARTICLE 9 OFFICERS The affairs of the Association shall be administered by the officers holding the offices designated in the By-Laws. The officers shall be elected by the Board of Directors of the Association at its first meeting following the annual meeting of the members of the Association and shall serve at the pleasure of the Board of Directors, provided, however, that the President and at least one Vice President of the Association must always be Directors, and, if the President is affiliated with any of the Owners of the City Controlled Units , then at least one Vice President, shall be affiliated with the Declarant Controlled Units, and if the President is affiliated with any of the Declarant Controlled Units, then at least one Vice President, Secretary and Treasurer shall be affiliated with the City Controlled Units. The By-Laws may provide for the removal from office of officers, for filling vacancies and for the duties and qualifications of the officers. The names and addresses of the officers who shall serve until their successors are designated by the Board of Directors are as follows: President Vice President Vice President Secretary/ Treasurer MIA 180,800,532v71-29-10 ARTICLE 10 DIRECTORS 10.1 Number and Oualification. The property, business and affairs of the Association shall be managed by a board consisting of three (3) directors. Directors need not be members of the Association. 10.2 Duties and Powers. All of the duties and powers of the Association existing under the Act, the Declaration, these Articles and the By- Laws shall be exercised exclusively by the Board of Directors, its agents, contractors or employees, subject only to approval by Unit Owners when such approval is specifically required. 10.3 Election; Removal. To the extent permitted by the Act, at all times, prior to and/or following transfer of control in accordance with the provisions of Section 718.301, Florida Statutes (2008), the Owner of Retail Units shall each be entitled to elect and/or appoint one (1) member to the Board and the Owner of the Parking Unit shall be entitled to elect and/or appoint one (1) member to the Board. Directors may be removed only by the Unit Owner that elected/appointed the Director and vacancies on the Board of Directors shall be filled by the election/appointment of another Director by the Unit Owner who originally elected/appointed the Director being replaced. 10.4 First Directors. The names and addresses of the members of the first Board of Directors who shall hold office until their successors are elected and have taken office, as provided in the By-Laws, are as follows: Name Address MIA 180,800,532V7129-10 10.5 Standards. A Director shall discharge his or her duties as a director, including any duties as a member of a Committee: in good faith; with the care an ordinary prudent person in a like position would exercise under similar circumstances; and in a manner reasonably believed to be in the best interests of the Association. An officer, director or agent shall be liable for monetary damages as provided in Section 617.0834, F.S. if such officer, director or agent's breach or failure to perform, his or her duties constitutes a violation of criminal law as provided in Section 617.0834, F.S.; constitutes a transaction from which the officer or director derived an improper personal benefit, either directly or indirectly; or constitutes recklessness or an act or omission that was in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety or property. Unless a Director has knowledge concerning a matter in question that makes reliance unwarranted, a Director, in discharging his or her duties, may rely on information, opinions, reports or statements, including financial statements and other data, if prepared or presented by: one or more officers or employees of the Association whom the Director reasonably believes to be reasonable and competent in the matters presented; legal counsel, public accountants or other persons as to matters the Director reasonably believes are within the persons' professional or expert competence; or a Committee of which the Director is not a member if the Director reasonably believes the Committee merits confidence. A Director is not liable for any action taken as a director, or any failure to take action, if he performed the duties of his or her office in compliance with the foregoing standards. ARTICLE 11 INDEMNIFICATION 11.1 Indemnitees. The Association shall indemnify any person who was or is a party to any proceeding (other than an action by, or in the right of, MIA 180,800,532v71-29-10 0 0 the Association) by reason of the fact that he or she is or was a director, officer, employee, committee member or agent (each, an "Indemnitee") of the Association, against liability incurred in connection with such proceeding, including any appeal thereof, if he or she acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the Association and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The termination of any proceeding by judgment, order, settlement, or conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in, or not opposed to, the best interests of the Association or, with respect to any criminal action or proceeding, had reasonable cause to believe that his or her conduct was unlawful. 11.2 Indemnification. The Association shall indemnify any person, who was or is a parry to any proceeding by or in the right of the Association to procure a judgment in its favor by reason of the fact that he or she is or was a director, officer, employee, or agent of the Association against expenses and amounts paid in settlement not exceeding, in the judgment of the board of directors, the estimated expense of litigating the proceeding to conclusion, actually and reasonably incurred in connection with the defense or settlement of such proceeding, including any appeal thereof. Such indemnification shall be authorized if such person acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Association, except that no indemnification shall be made under this Article 11 in respect of any claim, issue, or matter as to which such person shall have been adjudged to be liable unless, and only to the extent that, the court in which such proceeding was brought, or any other court of competent jurisdiction, shall determine upon application that, despite the adjudication of liability but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper. 11.3 Indemnification for Expenses. To the extent that a director, officer, employee, or agent of the Association has been successful on the merits or otherwise in defense of any proceeding referred to in Subsection 11.1 or 11.2, or in defense of any claim, issue, or matter therein, he or she shall be indemnified against expenses actually and reasonably incurred by him or her in connection therewith. MIA 180,800,532x7 1-29-10 0 9 11.4 Determination of Applicability. Any indemnification under Subsection 11.1 or Subsection 11.2 unless pursuant to a determination by a court, shall be made by the Association only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper under the circumstances because he or she has met the applicable standard of conduct set forth in Subsection 11.1 or Subsection 11.2. Such determination shall be made: (a) By the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such proceeding; (b) If such a quorum is not obtainable or, even if obtainable, by majority vote of a Committee duly designated by the Board of Directors (in which directors who are parties may participate) consisting solely of two or more Directors not at the time parties to the proceeding; (c) By independent legal counsel: 1. selected by the Board of Directors prescribed in Subsection 11.4(a) or the Committee prescribed in Subsection 11.4(b); or 2. if a quorum of the Directors cannot be obtained for Subsection 11.4(a) and the Committee cannot be designated under Subsection 11.4(b), selected by majority vote of the full Board of Directors (in which Directors who are parties may participate); or (d) By a majority of the voting interests of the members of the Association who were not parties to such proceeding. 11.5 Determination Regarding Expenses. Evaluation of the reasonableness of expenses and authorization of indemnification shall be made in the same manner as the determination that indemnification is permissible. However, if the determination of permissibility is made by independent legal counsel, persons specified by Subsection 11.4(c) shall evaluate the reasonableness of expenses and may authorize indemnification. 11.6 Advancing Expenses. Expenses incurred by an officer or director in defending a civil or criminal proceeding may be paid by the MIA 180,800,532V7 1-29-10 9 0 Association in advance of the final disposition of such proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if he is ultimately found not to be entitled to indemnification by the Association pursuant to this section. Expenses incurred by other employees and agents may be paid in advance upon such terms or conditions that the Board of Directors deems appropriate. 11.7 Exclusivity; Exclusions. The indemnification and advancement of expenses provided pursuant to this section are not exclusive, and the Association may make any other or further indemnification or advancement of expenses of any of its directors, officers, employees, or agents, under any bylaw, agreement, vote of shareholders or disinterested directors, or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office. However, indemnification or advancement of expenses shall not be made to or on behalf of any director, officer, employee, or agent if a judgment or other final adjudication establishes that his or her actions, or omissions to act, were material to the cause of action so adjudicated and constitute: (a) A violation of the criminal law, unless the director, officer, employee, or agent had reasonable cause to believe his or her conduct was lawful or had no reasonable cause to believe his or her conduct was unlawful; (b) A transaction from which the director, officer, employee, or agent derived an improper personal benefit; or (c) Willful misconduct or a conscious disregard for the best interests of the Association in a proceeding by or in the right of the Association to procure a judgment in its favor or in a proceeding by or in the right of the members of the Association. 11.8 Continuing Effect. Indemnification and advancement of expenses as provided in this Article 11 shall continue as, unless otherwise provided when authorized or ratified, to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person, unless otherwise provided when authorized or ratified. 11.9 Anylication to Court. Notwithstanding the failure of the Association to provide indemnification, and despite any contrary determination of the Board or of the members in the specific case, a director, officer, MIA 180,800,532V71-29-10 0 0 employee, or agent of the Association who is or was a party to a proceeding may apply for indemnification or advancement of expenses, or both, to the court conducting the proceeding, to the circuit court, or to another court of competent jurisdiction. On receipt of an application, the court, after giving any notice that it considers necessary, may order indemnification and advancement of expenses, including expenses incurred in seeking court-ordered indemnification or advancement of expenses, if it determines that: (a) The director, officer, employee, or agent is entitled to mandatory indemnification under Subsection 11.3, in which case the court shall also order the Association to pay the director reasonable expenses incurred in obtaining court- ordered indemnification or advancement of expenses; (b) The director, officer, employee, or agent is entitled to indemnification or advancement of expenses, or both, by virtue of the exercise by the Association of its power pursuant to Subsection 11.7; or (c) The director, officer, employee, or agent is fairly and reasonably entitled to indemnification or advancement of expenses, or both, in view of all the relevant circumstances, regardless of whether such person met the standard of conduct set forth in Subsection 11. 1, Subsection 11.2, or Subsection 11.7, unless (a) a court of competent jurisdiction determines, after all available appeals have been exhausted or not pursued by the proposed indemnitee, that he or she did not act in good faith or acted in a manner he or she reasonably believed to be not in, or opposed to, the best interest of the Association, and, with respect to any criminal action or proceeding, that he or she had reasonable cause to believe his or her conduct was unlawful, and (b) such court further specifically determines that indemnification should be denied. The termination of any proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith or did act in a manner which he or she reasonably believed to be not in, or opposed to, the best interest of the Association, and, with respect to any criminal action or proceeding, that he or she had reasonable cause to believe that his or her conduct was unlawful. MIA 180,800,532v71-2940 • e 11. 10 Definitions. For purposes of this Article 11, the term "expenses" shall be deemed to include attorneys' fees and related "out-of-pocket" expenses, including those for any appeals; the term "liability" shall be deemed to include obligations to pay a judgment, settlement, penalty, fine, and expenses actually and reasonably incurred with respect to a proceeding; the term "proceeding" shall be deemed to include any threatened, pending, or completed action, suit, or other type of proceeding, whether civil, criminal, administrative or investigative, and whether formal or informal; and the term "agent" shall be deemed to include a volunteer; the term "serving at the request of the Association" shall be deemed to include any service as a director, officer, employee or agent of the Association that imposes duties on, and which are accepted by, such persons. 11.11 Amendment. Anything to the contrary herein notwithstanding, no amendment to the provisions of this Article 11 shall be applicable as to any party eligible for indemnification hereunder who has not given his or her prior written consent to such amendment. ARTICLE 12 BY-LAWS The first By-Laws of the Association shall be adopted by the Board of Directors and may be altered, amended or rescinded in the manner provided in the By-Laws and the Declaration. ARTICLE 13 AMENDMENTS Amendments to these Articles shall be proposed and adopted in the following manner: 13.1 Notice. Notice of a proposed amendment shall be included in the notice of any meeting at which the proposed amendment is to be considered and shall be otherwise given in the time and manner provided in Chapter 617, Florida Statutes. Such notice shall contain the proposed amendment or a summary of the changes to be affected thereby. 13.2 Adoption. Amendments shall be proposed and adopted in the manner provided in Chapter 617, Florida Statutes and otherwise in the same manner required for amendment to the Declaration. MIA 180,800,532x71-29-10 13.3 Limitation. No amendment shall make any changes in the qualifications for membership, nor in the voting rights or property rights of members, nor any changes in Subsections 5.3, 5.4 or 5.5 above, without the approval in writing of all members and the joinder of all record owners of mortgages upon Units. No amendment shall be made that is in conflict with the Act, the Declaration or the By- Laws, nor shall any amendment make any changes which would in any way affect any of the rights, privileges, powers or options herein provided in favor of or reserved to the Declarant and/or Mortgagees, unless the Declarant and/or the Mortgagees, as applicable, shall join in the execution of the amendment. No amendment to this Subsection 13-3 shall be effective. 13.4 Declarant Amendments. Notwithstanding anything herein contained to the contrary, to the extent lawful, the Declarant may amend these Articles consistent with the provisions of the Declaration allowing certain amendments to be effected by the Declarant alone. 13.5 Recording. A copy of each amendment shall be filed with the Secretary of State pursuant to the provisions of applicable Florida law, and a copy certified by the Secretary of State shall be recorded in the public records of Pinellas County, Florida with an identification on the first page thereof of the book and page of said public records where the Declaration was recorded which contains, as an exhibit, the initial recording of these Articles. ARTICLE 14 INITIAL REGISTERED OFFICE; ADDRESS AND NAME OF REGISTERED AGENT The initial registered office of this corporation shall be at c , with the privilege of having its office and branch offices at other places within or without the State of Florida. The initial registered agent at that address shall be IN WITNESS WHEREOF, the Incorporator has affixed his/her signature this day of 12009. , Incorporator MIA 180,800,532x7 1-29-10 • CERTIFICATE DESIGNATING PLACE OF BUSINESS OR DOMICILE FOR THE SERVICE OF PROCESS WITHIN THIS STATE, NAMING AGENT UPON WHOM PROCESS MAY BE SERVED In compliance with the laws of Florida, the following is submitted: First -- That desiring to organize under the laws of the State of Florida with its principal office, as indicated in the foregoing articles of incorporation, in the County of Pinellas, State of Florida, the Association named in the said articles has named located at as its statutory registered agent. Having been named the statutory agent of said Association at the place designated in this certificate, I am familiar with the obligations of that position, and hereby accept the same and agree to act in this capacity, and agree to comply with the provisions of Florida law relative to keeping the registered office open. By: _ Name: Title: DATED this day of , 2009. MIA 180,800,532V7 12940 This instrument prepared by, or under the supervision of (and after recording, return to): Nancy B. Lash, Esq. Greenberg Traurig, P.A. 1221 Brickell Avenue Miami, FL 33131 PARKING COVENANT THIS PARKING COVENANT (the "Covenant") is made as of the day of 20_, by and between the CITY OF CLEARWATER, a municipal corporation of the State of Florida (the "City") and L.O.M., INC., a Florida corporation (the "Declarant"). RECITALS: A. Declarant is the owner in fee simple of that certain parcel of land located at 315 S. Gulf View Boulevard in Clearwater, Florida, which is legally described or depicted in Exhibit A attached hereto (the "Pro "). B. City and Declarant entered into that certain Agreement For Development of Property (Surf Style Condominium Project) dated February 18, 2010 (together with any amendments, modifications, extensions, restatements and supplements from time to time, the "Development Agreement"), which governs, among other things, the construction and development of a mixed use retail/commercial project and a commercial parking garage on the Property (the "Project"). C. As a condition to entering into the Development Agreement, City has required and Declarant has agreed to encumber the Property with the covenants and restrictions set forth herein. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Declarant hereby agrees as follows: 1. Recitals and Definitions. The Recitals above are true and correct and incorporated herein by reference. "Applicable Laws" means any law, enactment, statute, code, ordinance, administrative order, charter, tariff, resolution, order, rule, regulation, guideline, judgment, decree, writ, injunction, franchise, permit, certificate, license, authorization, or other direction or requirement of any Governmental Authority (as defined below), political subdivision, or any division or department thereof, now existing or hereafter enacted, adopted, promulgated, entered, or issued. "Governmental Authority" means any federal, state, county, municipal or other governmental entity or any instrumentality of any of them, having jurisdiction Exhibit E • e over the Property. Capitalized terms used in this Covenant (including the Recitals) without definition shall have the meanings given to them in the Development Agreement. 2. Public Parking Covenant. During all times that this Covenant remains in effect, the Project and any future development on the Property shall include a commercial parking garage containing 300 parking spaces open to the public (the "Restricted Parking Spaces") (i) to the extent permitted by Applicable Laws, (ii) provided that City (and/or any other applicable Governmental Authority) issues any necessary license, permit or approval (as required by Applicable Law) to the then fee owner(s) of the Property or the owner(s) of the Restricted Parking Spaces at the Property or the designated parking operator(s) (as applicable) to operate the Restricted Parking Spaces, and (iii) subject to reduction in the number of Restricted Parking Spaces under the limited circumstances provided in paragraph 2(b) below. The foregoing covenant and restriction shall be subject to the following additional terms and conditions: (a) In the event of the restoration, renovation and/or redevelopment of the improvements on the Property (collectively, a "Redevelopment"), whether voluntary, following a casualty or otherwise, the obligation to maintain the Restricted Parking Spaces on the Property for public parking shall abate and toll during the period of such Redevelopment until the date a certificate of occupancy is issued for the restored, renovated or new development. (b) The initial development of the Project includes approximately 41,000 square feet of retail/restaurant spare, which space is essential to the viability of the Project with the required Restricted Parking Spaces as a whole. If the Redevelopment of the Project (or a substantially similar retail/commercial project) at any time and from time to time following a casualty or at the end of the useful life of the improvements comprising the Project (or such substantially similar project) would trigger the application of any Land Development Regulation or any other Applicable Law which reduces the amount of retail/restaurant space permissible on the Property below 41,000 square feet (a "Trigger Event"), then the number of Restricted Parking Spaces shall automatically and permanently be reduced at the rate of eight (8) parking spaces for each reduction of 1,000 square feet (or any portion thereof) of retail/restaurant space. Notwithstanding the foregoing, in no event shall the number of Restricted Parking Spaces required hereunder be less than 100 parking spaces or exceed 300 parking spaces at any time. The reduction in the number of Restricted Parking Spaces shall apply to a Redevelopment of the Project on the Property (or another retail/commercial project substantially similar to the Project) following a Trigger Event only, and shall not apply to the Redevelopment of the Property with another type of project (such as a hotel or residential condominium). (c) The Restricted Parking Spaces may be located on all or a portion of the Property in Declarant's sole discretion; it being the intention of the parties that this Covenant require the Restricted Parking Spaces for public parking on the Property subject to the terms and conditions hereof, but not dictate where the Restricted Parking Spaces are or will be located on the Property or the manner in which title to the Property or the, Restricted Parking Spaces is held (i.e., whether through single fee title, condominium form of ownership, ground lease or otherwise). F,xhibit F • s 3. Covenant Runninp, with the Land. The covenants and restrictions granted herein are intended as, and shall be, covenants running with the land with respect to the Property. Title to the Property shall be held, transferred, sold, conveyed, leased and occupied subject to the terms of this Covenant. 4. Term. This Covenant shall commence on the date the certificate of occupancy for the Project is issued and shall continue for thirty (30) years from such date, after which time it shall be extended automatically for successive periods of ten (10) years each, unless released in accordance with the provisions of paragraph 7 below. [insert the following if this Covenant is recorded before the Completion Date: This Covenant shall be null and void, and of no force and effect, in the event the Project is not constructed and completed in accordance with the terms of the Development Agreement by the Completion Date. Although the foregoing cancellation shall be automatic, Declarant shall have the right to provide record notice of such cancellation by recording a termination of this Covenant in the Public Records of Pinellas County, Florida.] 5. Enforcement. In the event that Declarant defaults under the terms, provisions or obligations of this Covenant and such default is not cured within thirty (30) days after receipt of the written notice specifying in reasonable detail the event of default (the "Default Notice"), or if such event of default is of such nature that it cannot be completely cured within such time period, then if the Declarant shall not have commenced to cure such default within such thirty (30) day period and shall not diligently prosecute such cure to completion within such reasonable longer period of time as may be necessary, then City shall have all rights and remedies available at law or in equity for the redress of such default. In the event any action is brought to enforce the terms, conditions and obligations of this Covenant, the prevailing party in any such action shall be entitled to the recovery of all costs and disbursements of such action, as well as reasonable attorney's fees incurred with respect to such action, at all levels of proceedings. 6. Reservation. Declarant hereby reserves all rights of ownership in and to the Property which are not inconsistent with the restrictions and covenants granted herein. Nothing contained in this Covenant shall (i) be construed as or deemed to constitute a conveyance, gift or dedication of any portion of the Property to City or the general public; or (ii) limit or restrict the absolute and unconditional right of the fee owner of the Property (or any portion thereof) to raze, alter or modify the Project or other improvements located on the Property from time to time or at any time (in its or their sole discretion, following a casualty or otherwise), subject to the terms of paragraph 2 hereof. 7. Amendment and Termination. This Covenant shall automatically terminate in the event the City of Clearwater purchases the Restricted Parking Spaces pursuant to Exhibit L "Put Agreement" of the Development Agreement. This Covenant may not be amended, modified or terminated prior to the end of the term hereof except by written agreement of the then fee simple owner(s) of the Property and City, and the holders of any mortgages of record encumbering the Property. Furthermore, no modification, amendment or early termination shall be effective unless in writing and recorded in the Public Records of Pinellas County, Florida. 8. Governing Laws. The laws of the State of Florida shall govern the interpretation, validity, performance and enforcement of this Covenant. Exhibit E • • 9. Successors and Assigns. The rights and obligations of the Declarant hereunder shall bind and inure to the benefit of the Declarant, its successors and assigns. IN WITNESS WHEREOF, this Covenant has been signed, witnessed, executed and acknowledged as of the day and year first above written. SIGNED, SEALED AND DELIVERED IN THE PRESENCE OF: Name: L.O.M., INC., a Florida corporation By:_ Name: Title: Name: STATE OF FLORIDA ) COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 20_ by as of L.O.M., INC, a Florida corporation, on behalf of the corporation. By: Signature of Notary Public My Commission Expires: Printed, typed or stamp Exhibit E 0 0 EXHIBIT A LOM PROPERTY PARCEL 1: Lot 110, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. PARCEL 2: Lots 60, 61 and 62, and the Southerly one-half of Lot 107 and all of the Lots 108 and 109, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. TOGETHER WITH THE FOLLOWING DESCRIBED PARCELS: The Easterly 1/2 of Gulfview Boulevard lying West of and adjacent to the Westerly boundaries of Lots 60, 61 and 62, THE LLOYD-WHITE-SKINNER SUBDIVISION, as recorded in plat book 13 on pages 12 and 13 of the Public Records of Pinellas County, Florida, more particularly described as follows: Begin at the Northwest corner of said Lot 60; thence 180.12 feet along the Westerly boundary of said Lots 60, 61 and 62, and along the arc of a curve to the right with a radius of 6017.52 feet, subtended by a chord distance of 180.11 feet, bearing S08°35'03"W to the Southwest corner of said Lot 62; thence N80°34'24"W along the Westerly extension of the Southerly boundary of said Lot 62, a distance of 35.00 feet to a point of intersection with the centerline of said Gulfview Boulevard, a 70 foot wide right of way; thence 179.08 feet along said centerline and along the arc of a curve to the left with a radius of 5982.52 feet, subtended by a chord distance of 179.08 feet, bearing N08°35'03"E to a point of intersection with the Westerly extension of the Northerly boundary of said Lot 60; thence S82'1 5'44"E a distance of 35.00 feet to the Point of Beginning. Exhibit E 0 0 JOINDER OF MORTGAGEE THIS JOINDER OF MORTGAGEE is given as of the _ day of , 20 , on behalf of [Insert Name of Lender], a ("Mortgagee"), being the owner and holder of that certain mortgage of even date herewith made by a ("Mortgagor") in favor of Mortgagee, which Mortgage has been recorded in Official Records Book , Page of the Public Records of Pinellas County, Florida (the "Mortgage"), and encumbers, among other things, the property described in Exhibit A to the foregoing Parking Covenant (the "Parking Covenant"). WHEREAS, Mortgagor has requested Mortgagee to consent to and join in the Parking Covenant and to subordinate the lien and effect of the Mortgage to the Parking Covenant. NOW, THEREFORE, Mortgagee joins in the execution and consents to the recordation of the Parking Covenant and agrees that the lien and effect of the Mortgage shall be subject and subordinate to the terms of the Parking Covenant. Mortgagee makes no warranty or any representation of any kind or nature concerning the Parking Covenant, any of its terms or provisions, or the legal sufficiency thereof, and disavows any such warranty or representation. Except as expressly provided herein, nothing contained herein shall affect or impair the rights and remedies of Mortgagee as set forth in the Mortgage. EXECUTED as of the day and year first above written. Witnessed by: [Insert Name of Mortgagee] Print Name: Print Name: STATE OF FLORIDA COUNTY OF By: _ Name: Title: The foregoing instrument was acknowledged before me this _ day of , 20 by , as of , a on behalf of the By: Signature of Notary Public Printed, typed or stamp MIA 180, 825,646V9 2-17-10 My Commission Expires: Exhibit E 0 0 EXHIBIT F INTENTIONALLY OMITTED v11 MIA 180,692,234 • This instrument prepared by, or under the supervision of (and after recording, return to): Nancy Lash, Esq. Greenberg Traurig, P.A. 1221 Brickell Avenue Miami, Florida 33131 • for Clerk SIDEWALK AND TURN-LANE EASEMENT AGREEMENT THIS SIDEWALK AND TURN-LANE EASEMENT AGREEMENT ("Agreement") is made and entered into as of the _____ day of , 20__, by and between the CITY OF CLEARWATER, a municipal corporation of the State of Florida and L.O.M., INC., a Florida corporation ("LOM"). RECITALS: A. The City and LOM have entered into that certain Agreement for Development of Property in the City of Clearwater (Surf Style Condominium Project) dated , 20_ (the "Development Agreement"). The Development Agreement sets forth the terms and conditions governing the development and construction of a retail/commercial project containing approximately 41,000 square feet, which project includes a parking garage containing approximately 349 parking spaces (of which 300 spaces will be open to the public), on certain real property located on South Gulfview Boulevard in the City of Clearwater, Florida, more particularly described in Exhibit A attached hereto (the "LOM Property"). B. The City owns or controls that certain parcel of land lying adjacent to and east of the LOM Property, which is a portion of the sixty foot (60') right-of-way known as "Coronado Drive". C. Pursuant to Section 2.03(6) of the Development Agreement, LOM agreed to grant an easement in favor of the City for a sidewalk and turn-lane encumbering an [eleven (11)] foot wide strip of land on the east side of the LOM Property along Coronado Drive, as is more particularly described in Exhibit B attached hereto (" Easetttent Area"). D. LOM hereby desires to grant and create, on the terms and conditions hereinafter set forth, certain easements over, under and upon that portion of the Easement Area in favor of the City. NOW, THEREFORE, in consideration of the premises, agreements and covenants set forth hereinafter, and for other good and valuable consideration, the receipt and sufficiency of Exhibit G MIA 181,008,5440 1-27-10 which are hereby acknowledged, the City and LOM hereby agree that the foregoing recitals are true and correct and further agree as follows: 1. Grant of Easements to the City. Subject to the conditions herein, LOM hereby grants to the City for the use of the City, its agents, employees, contractors, representatives and licensees and the members of the general public a perpetual non-exclusive easement over, through, upon, across and under the Easement Area for the following purposes: (i) pedestrian and vehicular ingress and egress and (ii) maintenance, repair, and restoration of the Easement Area, including, without limitation, the sidewalk and turning lane located therein. The easements granted herein include the right to keep and maintain the sidewalk and turning lane within the Easement Area (and repair, restore and replace same in the event of damage or destruction of any kind or nature) in perpetuity. 2. Maintenance of Easement Area. The City shall, at its sole cost and expense, (a) except as otherwise provided herein, maintain and repair the Easement Area in accordance with all of the City of Clearwater standards for maintenance of sidewalks and turning lanes or, more broadly, for areas providing vehicular and pedestrian ingress and egress to the general public, if applicable, and (b) repair any damage to the landscaping, surfaces, structures or utilities within the Easement Area caused by the use of the Easement Area by the City and the general public. Notwithstanding the foregoing, LOM shall reimburse the City for all costs and expenses incurred in the maintenance, repair and restoration of the Easement Area necessitated by or required as a result of the negligence or willful misconduct of LOM, its employees, contractors, operators, agents or representatives. 3. No Obstruction of Traffic. Except during temporary periods when it is reasonably necessary to repair or replace facilities or improvements within the Easement Area or to make installations within the Easement Area (including, without limitation, utility lines), LOM and the City shall permit no material obstruction to the free flow of vehicular or pedestrian traffic in and through the Easement Area. All construction, maintenance or repair work within the Easement Area shall be accomplished in such a manner as to minimize any disruption to the free flow of ingress and egress over and across the Easement Area. 4. Reservation. LOM hereby reserves all rights of ownership in and to the Easement Area which are not inconsistent with the easement and rights granted herein, including, without limitation, the right to grant further easements on, over and/or across such area (e.g. utility easements) and all other uses not interfering with the uses permitted herein. 5. Liens. The City shall keep the Easement Area (and all portions thereof) at all times free of mechanics' liens, and any other liens, for labor, services, supplies, equipment or materials purchased or procured, directly or indirectly, by or for the City. The City agrees that it will promptly pay and satisfy all such liens of contractors, subcontractors, mechanics, laborers, materialmen and others of like character. In the event any such liens shall be made or filed, the City shall bond against or discharge same within thirty (30) days after receiving written notice of the filing of same. The City shall not have any authority to create any liens for labor or material on the Easement Area and all persons contracting with the City for the performance of any services, supply of any materials or provision of any labor for any work done in, on or around the Easement Area, and all materialmen, contractors, suppliers, mechanics and laborers are hereby Exhibit G MIA 181,008,5440 1-27-10 charged with notice that they must look solely to the City to secure payment of any bill for work done or material furnished at the request or instruction of the City. 6. Defaults. In the event that any party defaults under the terms, provisions or obligations of this Agreement and such default is not cured within thirty (30) days after receipt of the written notice specifying in reasonable detail the event of default ("Default Notice"), or if such event of default is of such nature that it cannot be completely cured within such time period, then if the defaulting party shall not have commenced to cure such default within such thirty (30) day period and shall not diligently prosecute such cure to completion within such reasonable longer period of time as may be necessary, then the nondefaulting party shall have all rights and remedies available at law or in equity for the redress of such default, including, in the case of LOM, the right of self-help under the circumstance set forth in paragraph 7 below. 7. Self-Help. If the City fails to maintain the Easement Area in the condition described in paragraph 2 above, then LOM may give a Default Notice to the City, and the City shall have the applicable cure period (described in paragraph 6 above) following receipt of such notice to restore the Easement Area to the required condition. If the City fails to restore the Easement Area within said cure period, then, in addition to the other remedies provided herein, LOM may restore same to the required condition and thereafter the City shall reimburse LOM for the reasonable costs of such restoration (excluding any restoration the cost of which the City is required to reimburse under paragraph 2) within fifteen (15) days following LOM's receipt of an invoice therefor. Any sums not reimbursed when required herein shall bear interest at the maximum rate allowed by law from the date due until paid. 8. Covenant Running with the Land. The easements hereby granted and the requirements herein contained are intended as, and shall be, covenants running with the land. 9. Amendments; Termination. terminated except by written agreement Property, and the holders of any mortg modification or amendment shall be eff Records of Pinellas County, Florida. This Agreement may not be amended, modified or of the City and all of the fee owners of the LOM ages of record encumbering same. Furthermore, no ective unless in writing and recorded in the Public 10. Miscellaneous. a. Counterparts. This Agreement may be executed in any number of counterparts and by the separate parties hereto in separate counterparts, each of which shall be deemed an original, but all of which (when taken together) shall constitute one and the same instrument. b. Construction. Reference to any paragraph, section, exhibit, or subpart thereof, unless otherwise provided, shall refer to this Agreement. In construing this Agreement, the singular shall be held to include the plural, the plural shall be held to include the singular, and reference to any particular gender shall be held to include every other and all genders. Use of the term "including" shall mean "including, without limitation". Each of the parties hereto and their counsel have reviewed and revised, or requested revisions to, this Agreement, and the usual rule of construction that any ambiguities are to be resolved against the drafting party shall be Exhibit G MIA 181,008,549x3 1-27-10 0 9 inapplicable in the construction and interpretation of this Agreement and any amendments or exhibits to this Agreement. C. Titles of Paragraphs and Sections. The titles of the several parts, paragraphs and sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. d. Notices. Any notice or communication under this Agreement shall be in writing and shall be deemed sufficiently given if hand delivered or dispatched by United States certified mail, postage prepaid, return receipt requested, or by nationally recognized overnight delivery service, to the appropriate party or entity, and their respective authorized representatives as set forth below, at the address specified below or at such other address of which the other parties shall be duly notified in writing: NOTICE TO THE CITY: City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 Attn: City Manager NOTICE TO LOM: L.O.M., Inc. c/o Surf Style, Inc. 4100 N. 28th Terrace Hollywood, Florida 33020 Attn: Controller WITH COPY TO: Pamela K. Akin, Esq. Clearwater City Attorney 112 S. Osceola Avenue Clearwater, FL 33756 WITH COPY TO: Greenberg Traurig, P.A. 1221 Brickell Avenue, 23rd Floor Miami, Florida 33131 Attn: Nancy B. Lash, Esq. All notices shall be deemed received when actually delivered if delivered by hand or by a nationally recognized overnight delivery service and shall be deemed delivered five (5) days following mailing in the event mailed as provided above. e. Severability. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement or the application of such term or provision to the persons or circumstance other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. f. Governing Laws. The laws of the State of Florida shall govern the interpretation, validity, performance and enforcement of this Agreement. Venue for any action brought hereunder shall be proper exclusively in Pinellas County, Florida. g. Expenses. In the event any arbitration, litigation or controversy arises out of or in connection with this Agreement between the parties hereto, the prevailing party in such arbitration, litigation or controversy shall be entitled to recover from the other party or parties all reasonable attorneys' and paralegals' fees, expenses and suit costs, including those associated with any appellate or post judgment collection proceedings. Exhibit G MIA 181,008,5440 1-27-10 • h. Exhibits. All of the Exhibits attached to this Agreement are incorporated in, and made a part of, this Agreement. i. Waiver of Jury Trial. The parties hereby each knowingly, irrevocably, voluntarily and intentionally waive any right such party may have to a trial by jury in respect of any action, proceeding or counterclaim based on this Agreement, or arising out of, under or in connection with this Agreement or any amendment or modification of this Agreement, or any other agreement executed by and between the parties in connection with this Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement to the parties to enter into this Agreement. ['The remainder of this page is intentionally left blank] Exhibit G MIA 189,008,5440 1-27-90 EXECUTED as of the date and year first above written. CITY OF CLEARWATER, FLORIDA By: Approved as to form: Attest: Frank V. Hibbard Mayor Pamela K. Akin Cynthia E. Goudeau City Attorney City Clerk Exhibit G MIA 181,008,5444 1-27-10 SIGNED, SEALED AND DELIVERED L.O.M., INC., a Florida corporation IN THE PRESENCE OF: By:_ Name: Name: Title: Name: STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this day of , 20 by , as of L.O.M., INC, a Florida corporation, on behalf of the corporation. By: Signature of Notary Public Printed, typed or stamp My Commission Expires: Exhibit G MIA 181,008,5440 1-27-10 JOINDER OF MORTGAGEE THIS JOINDER OF MORTGAGEE is given as of the _ day of , 20___, on behalf of [Insert Name of Lender], a ("Mortgagee"), being the owner and holder of that certain mortgage of even date herewith made by , a ("Mortgagor") in favor of Mortgagee, which Mortgage has been recorded in Official Records Book , Page of the Public Records of Pinellas County, Florida (the "Morteaae"), and encumbers, among other things, the property described in Exhibit A to the foregoing Sidewalk and Turn-Lane Easement Agreement (the "Easement"). WHEREAS, Mortgagor has requested Mortgagee to consent to and join in the Easement and to subordinate the lien and effect of the Mortgage to the Easement. NOW, THEREFORE, Mortgagee joins in the execution and consents to the recordation of the Easement and agrees that the lien and effect of the Mortgage shall be subject and subordinate to the terms of the Easement. Mortgagee makes no warranty or any representation of any kind or nature concerning the Easement, any of its terms or provisions, or the legal sufficiency thereof, and disavows any such warranty or representation. Except as expressly provided herein, nothing contained herein shall affect or impair the rights and remedies of Mortgagee as set forth in the Mortgage. EXECUTED as of the day and year first above written. Witnessed by: [Insert Name of Mortgagee] Print Name: Print Name: STATE OF FLORIDA COUNTY OF By: _ Name: Title: The foregoing instrument was acknowledged before me this _ day of , 20 by as of a on behalf of the By: Signature of Notary Public Printed, typed or stamp My Commission Expires: Exhibit G • EXHIBIT A LOM PROPERTY PARCEL 1: Lot 110, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. PARCEL 2: Lots 60, 61 and 62, and the Southerly one-half of Lot 107 and all of the Lots 108 and 109, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. TOGETHER WITH THE FOLLOWING DESCRIBED PARCELS: The Easterly 1/2 of Gulfview Boulevard lying West of and adjacent to the Westerly boundaries of Lots 60, 61 and 62, THE LLOYD-WHITE-SKINNER SUBDIVISION, as recorded in plat book 13 on pages 12 and 13 of the Public Records of Pinellas County, Florida, more particularly described as follows: Begin at the Northwest corner of said Lot 60; thence 180.12 feet along the Westerly boundary of said Lots 60, 61 and 62, and along the arc of a curve to the right with a radius of 6017.52 feet, subtended by a chord distance of 180.11 feet, bearing S08°35'03"W to the Southwest corner of said Lot 62; thence N80°34'24"W along the Westerly extension of the Southerly boundary of said Lot 62, a distance of 35.00 feet to a point of intersection with the centerline of said Gulfview Boulevard, a 70 foot wide right of way; thence 179.08 feet along said centerline and along the arc of a curve to the left with a radius of 5982.52 feet, subtended by a chord distance of 179.08 feet, bearing N08°35'03"E to a point of intersection with the Westerly extension of the Northerly boundary of said Lot 60; thence S82°15'44"E a distance of 35.00 feet to the Point of Beginning. MIA 181,008,544v3,1-27-10 • SKETCH of DE5CRIPTION THIS 15 NOT A WUNMRY SURVEY t SCALE : 1" = 50' 0' 50' 100' ! ! t 1 I I LOT 59 ! ! 1 f I _ ! 1 4 ~ ~ - -- I LOT 106 1 ii _ ? 1 r?~~1~ R?--4 ? t 1 J l t.OT 60 Sal59 4tl03'•E I 1 I rJ 1 Northeast l 1 1 Sout"-1 /2 Carver th 1/2' J ! s1 ? ? L ? LOT 107 Lot 107 ! I 1 ? >` r -_ 1 1 c 0,1 1 - -? - ? ? - ttl l 1 !! 14 ! LOT 108 j (]J gf LOT 61 .i ?'°1 f J 4 `! LOT 109 " ?. J ! 1 1 LOT 62 r??1`y a 1 J ?' 1 ?1 tto•P 1 a ? 1! LOT 110 0 1 ! l?t?l 1 ? ? ;'???'?• U1 1 1 I LOT 63 1 So' 1 1 1 N$p'S80S••~ 11.00 ' 1 CURVE DATA LOT 111 1 P_O.B. I Southeasterly C9rlter V40LE ARC LENGTH CHORD LENGTH CHORD BEARING lot 110 ! D 173.91' 173.90 N08'5329'E 1 7' 174.11' 174.11' 508'53 26-W _ DESCRIPTION; (Proposed access easement) The Eosteriyy 11.0 feet of the Southerly one-half of Lot 107 and the Easterly 11.0 feet of Late 108 and 109 and 110. ELOYD-WHITE-SKINNER SUBDMSIOK occordnq to the plat thereof as recorded in Plat Book 13, Pages 12 and 13. Public Records of Pinellas County, Florida. more particularly described as follows; Begin at the SauOleasteriy tamer of said Lot 110; thence NB0'56'O51W, along Ore Southerly boundary thereof a distance of 11.00 lee, thence 173.91 feel along the arc of a curve to the left hoving a radicle of 6216.52 feet. subtended by o chord distance of 173.90 feet. bearing NOB'53'29'W to o point of intereoction with the Noto" boundary of the Southerly one-holf of said Lot 107; thence S81'59'43"E, along said Northerly boundary a distance of 11.00 feet to the Northeasterly comer of the South one-half of said Lot 107; thence 174.11 feet along the Westerly right of way Inc of Coronado Drive and along the are of a curv e to the right having a radius of 5227.52 feet, subtended by o chord distance of 174.11 feet, bearing S08'53'26 W, to the Point of Beginning. LEGEND 1t. NO 1111M ROUND MTAL1ATDN5 OR IUPROrDIDFIS WOVE BERN LOCATED EXCEPT AS SHOWK 2. NO INSMAIENIS Or RECORD REFL£CIIND EASElENTS, RIGHT OF NAY AND/OR OWNERSHP WERE ID LB OOMFICANOW ULt)6ED W LAND StRVfloR DUSKS FURkViHED M THIS SO KYOR EXCEPT AS SHOWN. 3. DE SKETCH DOES MDT REFLECT OR OEEFAYNE OWNERSHIP. ((P) t } PIN E1to"70 OEm a DESatorror 6FOR OM 4- USE OF THIS S1QTM BY AN'TD E OTHER THAN 1HOSE PREPARED FOR FALL BE THE RE-USERS SOLE ASK WRHOLR LIABILITY 70 THE SURVEYOR. (lF7 FLOC IND&M 5. THE SREFCII WS PREPARED Vlff Vt THE BENEFIT OF A CURRENT 1DLE COMUITMENL AND IS POD POC POM or am"". PONT or co mot " SO&ECF TO CASE ISENIS, RMIS- OF-Wa AND SINRAR MATTERS OF TITS. m w 6. MERWA &W ON THE WESTERLY RIGHT OF NAY LINE OF COROPIAOD DRIVE AS BEARING S08'S3'261! (ASSINED). nelwreu for unu L.erunea la: K ith Z d A i I DATE D b 22 0 9 Drawing No. 902602.dwg Project No. 9026 e WDc an nc. ssoc otes. ecem er . 2 0 Ctl@CICed By 1(OAi Meld Book Pages Drown By ....... 0 • CA)AVEYOR'S WE SUNCOAST LAND SURVEYING Inc. 1 L°?' «dlry li,4 1?R" - pa?d °nder xfSPtllg9lE ? S u Ill FOREST LAKES BOULEVARD OLOSIAAR, FLA. 34677 WAGE M no lAlaA1 r?taaAwl sv a?(• a.d wos oet r? by ? t> w suarETORd SSIC17-a. nalaoA 11D1 hANL 101HO T AND TAE %K or A FLOM llCENSED P BOUNDARY - TOPOORAPMC - OOrbTRUCTKIN STAKEOUT - SAIevE7VR Alp •' (yh? a s LIB 4513 in?10t1E (813) 854-1342 FAX: (ets) 895-6890 „1• Exhibit B • EXHIBIT H LIST OF REQUIRED PERMITS AND APPROVALS City of Clearwater Community Development Board (CDB) Approval of Project City of Clearwater City Council Approval of Project City of Clearwater City Council Approval of Break Wall City of Clearwater Building Construction Permit for Break Wall City of Clearwater Right-of-Way Use Permit for Break Wall Federal Emergency Management Agency (FEMA) Map Revision Approval City of Clearwater Building/Site Construction Permit City of Clearwater Right-of-Way Use Permit for Project City of Clearwater Comprehensive Sign Program Permit Florida Department of Environmental Protection (FDEP) Water & Sewer Construction Permit FDEP National Pollutant Discharge Elimination System (NPDES) Permit Southwest Florida Water Management District (SWFWMD) Environmental Resource Permit Ad Activity Original Early Early 101, MI ID Description Duratlon wart Finish Building 1027 Omlwe rove 50%des' 0 MIAN10 O-e, aPProva SD% design 1 i . 1033 Release Geotech for Final Des- 0 25FEBIO i ?Release Geotech for Final Design i I ! 1023 Ownwa ve 90%desl 25MARIO , Owner approve 909E design. . . 1024 end P Pr as E Costs 0 23.R1N70 APPmve wrd Pay Progmse Energy Costa Wr?Enb99 PolonuerrroM (8-10 Weeks)' 1025 E Plwzrremeni 8-10 Weeks 23JUNIO 31AUGID 1028 Ered detour wrote Site 4 O15EP70' 045EP10 I : bred detour We. vocals Site 1028 R81=ts Power Transformer and Gas Lines D 03SEP10 Relocete Power Transformer and Gm Linea 1029 Permanent Power AVaeable 0 OBOCTIO • I Pwmanenl POVrw Avabl: e: I 1 : . ?Pllwm Linea ; ' 103D Phone Lines 0 1SAPR11 _ fate Alarm M nkdrlg 1032 Fire Alarm MmItori 0 29APR11 DRC 1 . :1 .. 1: ; .. . 1051 A Ppm- Cdw Ch' Samples for DRC 0SEP09A fa r DF ? •1 . 1 II 1! 1052 DRCmmti Inibal A IOCT09 0 1053 DRC Mead (SeCW4 ?4 SNOVO9 A , . • 1054 CDB SDEC09A as 1 1 n9 IG-% Gal CDB Mewl . . A 1 s delCOB Mee9 - ' 1 . I . . . Project Wde 1000 SWmisslonof FEMA l fevmi n atterd 0 12JUN09A rm show 1001 C-M Aoprv-I of Te 0 18JLIN09 A :1 I . I I 1 1003 20 02Jt0.09A 31AUG08 . 1004 nvisbn M!==. 0 085EP09A - .. .1 .. :1 1008 Ci C-0 Appal of P 4801 0 04FEB70 • City Coun ts Approval cl wgacc 1 i 0 25FEB70 r -.'sHk e GectadvdcaVCIMT 6 Threshold Engin,#7 _I .1 . : k .. . 1013 Ilse Gededlnic"MT A Threshold Engineer 1009 FEMA Flood Zone, Chews 7 19MAY10 3,A.,O FEMA Food Zorn Cheops Wave Well 1 I ' , 1 1 1071 A and Pe P Ism Ena Costs 0 14DEC09A "am 1 y Progress Energy Cm ! ps I , f 1 I 1072 rmsE PmpremeM B-10 Nbeks 40 14DEC09A o5FE810 PM919as Eroryy P- me(d(8-10 Weal s) I 1 1 : ' I 1 I i Ci CAUrrJI Meeti fro We" Wall A ement 0 17DEC09 A 1073 _Cowd WaN Agl6eme , r I Meeting for T. I 1 _ . :1' I l i 1074 Wave WaN ConsouctlOn 75 11JAN10 A 30APRIO ,.I?Wave Well Comtruclicn: 1075 C to AS-0uiH Serve erM Subma W C' 2 OOMAYIO O/MAYiD 's??C?O.rrnpl?'? As-WB Surnry end r 'te Advedbe FEMA Su !7CI Sub Wn mit ID City " I I '1 ! '1 ' 1076 G to Adw0lae FEMA SUbmtHal 1005MAV10 18MAY10 i Q a Building d . l 1. 2020 Civil for Pennt 201 14DEC09A 05FEBID Civil desig n for Pemtl 2021 BWId' Oesl for Pemlit 50% 14DE000A 15JAN10A iVin Desl9n (50 Permit 1 2023 SWPWMO Pe-M 13JAN10A 12MAYIO Lam" DEP Perm 2071 DEP P.-WH 0 OBFEBIO i 2033 Busd Desi 100% 25FE610 07APRIO wklinw Design for (100%1 PemIN Ol1APR10 11AUG10 2D25 Elevaim al Gars a Shop Drit" val 15APRIO 21APRIO `I' _ ?t v@l Obtain BUI&V PennR_... 2026 Obtain BWldi PermN 01SEPt0 DRC . I I , II I' II III 19. I1•k I 1 I1 I I I1? . 1 ! 1 I I• : 1 :1: I I , F s i' I , I, 2040 Bviks des fro Site an oval 25 29JUN09A 2SA0009A . I I 1 i 1 I I: ! '1' ' I , 1 I I i 1 2041 Civ4 dml Iw siro a royal 34 06,11.0.09 A 26A0009 A ., ! .' I I , I I I i I .I I : I I V ! :1 : I I I s .. I i 1 1 !, I i t I 11 1 1 11: I d: ' I I I I' I I I 2042 Provide Eatenw DOlef CN S es to Ovmer 15 08JUL09 A 27AUG09 A 0ve ! i s 1 : I :I • I i 1: :1 I I p ! t • Pemdl 2043 DRCISile Plan al 56 31AUGD9A 150EC09A ?Sft n Pefndt Approv. I I k • ! I : I I I '11 '1 I n, :1: I I I1II III .II .1 :1 : I:1; : I!4 !: I I II' ? 2044 Submisuon of DRC 0 OISEP09A _ ? _ I ! _i _ _ .1-11 '.I.: :J , : _ . : I _ :.I _ _: ! . 1 I.'.'.,. 1 _ -:c_.. • I ;I: 2045 Cam leleneas Determination 0 11SEPOOA 1 1 1 I I I 1 + ! : I : I I I 11: 1' 1 k:1 ! ! ! ! 1 I I 1 1 1 1I'. 1 ,1 :! 1.' I 1 I I 2046 DRC ReuArtdlfal IMO Due 0 120CMMA I . I 7 1 : I I: :1 : I • k 1 2047 2nd DRC ResubmRlal hdo Dua 0 13NOVD9 A i ttal Info 01. I I I I : ! : I : 1 I I 11: :III : I k Run data 28JAN10 rP? krr Data date 26JAN70 Eshiblt"r ?amvlr Pro C' Schedule a?.mm.rv a P p Surf-Style Milted-Use Parking S W cture c v E Clearwater Beach Flodda sir. een Poe son p? P^"" • O ®Prlmammas stems lea. , • 0 2010 7011 Act Adivlty DIIBIRS Eady Early ID Description Duration Start Flrtiah . Project Wlde .. .. . . 2000 OYnef Cdterla Me 0 28JL1N09A Wave Well of D "lled Ut[ry LOW- L - ' t v 10 12NOV09 A 04DECIN A eB P ermit D-en 2061 Wave Was Permit Documents 2062 prcoess Buildim a ROW Use Pemst 20 04DECOD A 08JAN10 A ;LP r ocaas Suldng & .ROW Il se PefmA • n : : r : 1: n : a . . Buildl ... . 3000 Elwatm 8 Ewalalw Shop Drawft Suomatal 15 25MARIO 14APRIO Elevalo58 Esaiato r Shop Drawing 5[Ibn rial n Precast Fatiricati0 : 3001 Precast Fahliesion g0 01JUL10 OQNOVIO . - t• 1 ' s - . _ 3002 Fi*od Mohili¢a0on InduAi Sile Fence 5 OSSEPIO 10SEPt0 . . , ' finfrack Mobtize8on YIdIMYYJ Site Genre A Sit 11oli0ai 11. . . r r De 3003 Site Demolition 1 14SEPIO 04OCTIO 1 ? e . . 11 Thane Ckuua ; - ` 4 - - 3005 MOTAane Closwe 17 14SEPIO 16MAY11 _ - - - - - - -, - - - - ... 1181t ocNion:If ' 3004 Utility Relocation 20 21SEP10 160CT10 ry d T l d L i l $008 Test Foundation Installation and Load Test 1 21 SEP10 04OCT10 oa el , lat on an Test Foundatlon Insta (GL 1-7) ? Drilled .i R . 3007 Ddlled Shans GL 1-7 3 D50CTIO 22NOVIO . .. e , .. : 7 r . . 3008 Shen Caps GL 1-7) 3DI 23NOV10 03JAN11 ShaO Ceps (GL 1- ) :1 . . I• U Precast EBdioy . 30DD P.,ast Erection 14JAN11 28MAR11 - Storm Vault C-bol ShxWre and Pipe. n : 3010 Pipe Storm Vault Catbol3lroCNre and S O; JAN11 10JAN71 - - W . atarpro0fingtCasD[hlg 3011 W ailld 11JAN11 16MAY11 . . .. 1 3012 EledriWl 11JAN11 02MAY11 3013 PWm 76 10JAWI 05MAY11 Ftra Protection Spdnidos 3014 FIB Protetbol M 25JAN11 16MAY11 ' an GreOS' . . . . . 3015 Slay on Grade 501 08FESII 1BAPR11 . : DockC 3016 DoCk 40 15FEa11 IIAPR11 t 1 a _ . 1 ' 3017 NVAC 40 15FEBI1 11APR11 : 1 n H [ 1 , o stors B Escalator in Garage, . t Me ElevMws B Eecetato N Garage 65 DIMARII 30MAYII . ' .. ' . - 3010 operator OtAW 30 O9FMR11 18APR11 Exterior Wall EIFSFatntirlg r 3020 Flood. Wall EIFSIPainti 40 15MARII o"Y71 IR061 Partition Wells' 3021 RdaJ Padilla. Wails 40 151sAR11 09MAYI I ; a 1 ' r 3022 StnBkoll 30 16MAR11 25APRt1 .. .. 1 6 Hardlwre htNA ? 3023 DoorA Hardw Instal 30 29MAR11 09MAV71 ..19 9 : 1 • .. . minu?l StairRalis- i t 3024 AkM Slmr Rags 1 12APRll 25APR11 Curo 81M OaoBl Lads' Coronado C 3025 Coronado Curs and Decal Lane 20 12APRl l 09MAYi l t .. 1911 . ReNroom Blsldoult 3028 Restroo,11swww 20 12APRi1 091MY11 :sale :191111 . sWpehagallon• 3027 LarilacapedIrrigation 1 19APRIl 091MY11 a9rn1 -nnu :a P sYO •PaiM evemeld MaAinga - 3028 PRIM PavemsM Matkl s 1 10MAV11 23MAV71 : i n11 all ?, :. 3029 Sgnap S IOMAYII 18MAYil - .uu+[ ...._ _.. .. _ .? _ _ , : 4 Folding PartNons : . [ 3030 Fold Petitions 10 10MAYII 23MAY11 1 nnn 111 1 t , . ax 1t a 4191 11: Elwakma at GeBge AQUatRlalll: 3031 ENvaNBSGa eA USftn0ot 5 31MAY11 06,A1N11 ' _ t 11th net+ln,ltix Final lnspsdlons : . 3032 Final lna dlons 5 31MAY11 06JUN11 ?N: 1 e41 :11 axl llbsterdial Cmnpletiot S 8989 Slb. SuDSafl6al Cora elan 0 31 MAY 11 . peWaro EI 3033 Elevator In diana S 07JUN71 13JUN71 _ M _ _ _ _ - - - r r t - - -, _ _ 11 3034 P-h flat 8 07JUN11 14JUN11 , t : t - t t t 1 CompbSOn 1 Su 3035 Suosta U C tion D .14JUNil r _ Obtain Obtain C.O' ' 303e Obtain C.O. 21JUN11 L Vlave Wail ... - .: .. 35W Coordinate, Design w/ Program Erte 225EP08A 13NOVD9A 9n 1w prog? Elrery , : t 3502 Construction Coordination 42 07JM110A 11MAR10 Canstrnlction Cooronetton . 52 12JUNOBA 21JUN71 ? nay m Run date 28JAN10 n op «4 s. - Data date AN1 Exhiblt"i" od Project Schedule p"^ Surf-Style, Mbled-Use Park" Structure ? v?Pxm Florida Clearwater Beach sass oaa.p wa 9)Primav13ra3 telrlslnc. , • 0 • Negotiated Tim Haahs Guidelines-January 20, 2010 (Reference October 30, 2009 TimHaahs Design Guidelines for further clarification and detail - see attached) Governing Codes and References 1) 2007 Florida Building Code 2) Code of Ordinances: City of Clearwater, FL 3) Code and Land Development Code, County of Pinellas County, FL 4) Beach by Design: A Preliminary Design for Clearwater Beach - including Section VII. Design Guidelines 5) NFPA 101 Life Safety 6) NFPA 88A Standard for Parking Structures 7) ACI 318-05 Building Code Requirements for Structural Concrete 8) ACI 362.1 R-97 Guide for the Design of Durable Concrete Parking Structures Note: with approved variances to Section 8.c.i -Slope for Drainage and Sections 8.c.ii & 8.c.iii - Corrosion Protection and Estimated Service Life as outlined in letter to Ms. Tracey Bruch, City Parking Manager, by Allen Finfrock, PE, Vice-President of Finfrock Design, Inc. dated September 24, 2009. 9) ANSI Al 17.1 Accessible and Usable Buildings and Facilities 10) Design Team is required to design the project under the applicable building codes, regulations and standards at the time of the design submission for approval and construction. 11) Design Team shall incorporate sustainable design practices into the project, such as recycled materials, energy efficient lighting, etc. Functional Provisions 1) 9'-0" x 18'-0" typical parking spaces a. Additional P-0" width shall be included for spaces adjacent to continuous obstructions (i.e. columns, walls, fences) 2) Typical floor clearance: Minimum of 7'-0" 3) ADA van space location clearance: Minimum of 8'-2" 4) ADA spaces shall be located adjacent to stair/elevator towers to minimize travel distance 5) Wheelstops shall be provided at ADA spaces only, as required 6) Ramp slopes a. Typical floors shall be between 5% and 6% b. Speed ramps shall not exceed 12% c. Areas near parking equipment shall be between 2% and 3% 7) End bay clearances: Utilize 27'-0" clear at two-way crossovers for proper turning radius Exhibit J • o 8) Queuing: Minimum distance 40'-0" for entry and exit lanes 9) Minimize use of curbs within the parking structure 10) Maximize openings in interior and exterior walls 11) Utilize exterior shearwalls with openings, in lieu of interior locations Note: Final Design Plans will limit width of Shearwall at Gridline C5.25 to extent possible as dictated by the Structural Engineer. Convex mirrors will be installed as necessary to facilitate sight lines around potential obstacles. 12) Minimize areas of conflict between pedestrians and vehicles. Where areas of conflict exist, provide a means of traffic calming devices (flashing signals, crosswalk striping, bollards, etc.). Provide additional bollards at Stair and Elevator towers. 13) Eliminate hiding places such as solid walls and deep corners 14) Means to prevent bird nesting including sloped ledges, spikes, repellents Note: City's Maintenance Department will provide if City takes possession of garage in the future. 15) Access along north side of garage to allow for future maintenance and repairs Note: Personnel access only will be provided, but not equipment wider than 3 feet lb) Rooms as required for Storage/Utility, Electrical, Mechanical, Transformer, Generator, Elevator Machine. Provide a utility room adjacent to the parking office. Architectural Provisions 1) Stairtowers/Elevator towers a. ADA compliant design and layout b. Enclosure at top level for elevator tower for weather protection. Inclusion consists of a standing seam metal room without glazing. c. Maximize openness within stairtowers for increased visibility Note: Due to fire raring, no openings will be provided internal to the garage. Maximized openness will be provided to the exterior, where fire rating is not required. e. Galvanized steel handrails Note: Powder-coated aluminum handrails will be provided f. Abrasive nosings cast into stair treads Note: Tim Haahs reviewed independent testing report of Finfrock's stairs and found acceptable g. Enclose bottom run of stairs at ground level to eliminate hiding places Exhibit J L? 2) Elevators a. Hydraulic type, minimum of two cabs Note. Two machine-room-less traction elevators will be provided b. Vandal resistance cab, hoistway, fixture finishes (i.e. textured stainless steel) c. Emergency call equipped d. Tied into the emergency power source Note: An emergency generator will be provided to service all garage lighting, one elevator, half of all retail lighting and one point of sale location, and public corridor. e. Durable floor system (i.e. continuous vinyl tile) 3) Signage a. Adequate wayfinding signage for both vehicles and pedestrians. b. Consider implementing a floor theme to aid patrons in remembering their vehicle location. c. Scotchlite reflective signs Structural Provisions 1) Corrosion protection methods in line with ACI 362 Note: with approved variances to Section 8.c.i -Slope for Drainage and Sections 8.c.ii & 8.c.iii - Corrosion Protection and Estimated Service Life as outlined in letter to Ms. Tracey Bruch, City Parking Manager, by Allen Finfrock, PE, Vice-President of Finfrock Design, Inc. dated September 24, 2009. 2) Galvanized steel precast connections that are protected by grout or cast-in-place toppings or washes 3) Stainless steel precast connections (i.e. tee to tee) that are protected by sealant alone 4) Minimize exposed welded or bolted connections 5) Concrete slab-on-grade with tooled joints and vapor barrier beneath occupied areas 6) Tooled joints with sealants in cast-in-place toppings or washes Waterproofing Provisions l ) Expansion joints located at high points 2) Compressible filler material at vertical expansion joints between garage and stairtowers, such as an Emseal Colorseal product 3) Elastomeric deck coating above all occupied spaces and MEP rooms 4) Treat the exposed ramp as a plaza deck to provide increased waterproofing protection for occupied space below Note: An Auto-Gard polyurethane vehicular traffic deck coating produced by Neogard over all occupied spaces that carries a 10 year Joint and Several Warranty and will be flood tested (24 hour period) prior to acceptance. Exhibit J 171 LJ Plumbing Provisions 1) Cold water risers and hose bibs at each parking level for garage washdown 2) Sufficient slope on floor members and an adequate number of floor drains on all levels to negate any areas of water ponding 3) Floor drains used specifically for parking structures, such as Watts FD-900 epoxy coated models or equal Note: Storm Drainage of the upper decks will utilize Slot Drains fastened below the double tee flange, with the entrance a galvanized steel grate and %2" wide joint between the double tee flanges on the exposed top deck, and %2" wide joint between the double tee flanges on the lower garage levels, all of which sized by Plumbing Engineer. Cleanouts for each drain shall be included. 4) Galvanized steel pipe guards for any exposed risers for bumper guard protection 5) Storm retention system shall be easily accessible for maintenance Fire Protection Provisions 1) Portable fire extinguishers as required by NFPA 10 Standard for Portable Fire Extinguishers 2) Fully sprinklered parking garage 3) Galvanized steel pipe guards for any exposed risers for bumper guard protection Electrical Provisions 1) Lighting levels a. Meet or exceed current minimum IES standards b. Parking/Drive aisles -10 fc (minimum average) Note: Provide a minimum of 5-6 fc average. c. Vehicular Entry/Exits - 50 fc (minimum average) Note: Lighting will meet the requirements of IES RP-20 d. Stairtowers/Lobby interiors/Ground level retail areas and corridors - 20 fc (minimum average) Note: Lighting will meet the requirements of IES RP-20 e. Provide additional lighting at any interior shearwalls Note: Lighting will meet the requirements of IES RP-20 f. Emergency lighting to meet Code requirements g. Provide photometrics of light levels listed above 2) Lighting fixture a. Fluorescent type fixtures with uplight component Note: Fixtures compliant with Sea Turtle Lighting Restrictions will be utilized. Exhibit J 0 9 3) Lighting control system a. Programmable lighting control system for time and date control of light fixtures b. Photocells for controlling perimeter lighting and vehicular entry/exit areas. 4) Receptacles a. Weather proof enclosed types located at each stairtower and elevator lobby, each level 5) Conduit a. No placement within expansion joints. b. Expansion capacity when crossing an expansion joint c. Exposed conduit on the exterior of the garage is not permitted 6) Security System a. Consider implementation of a CCTV system with camera placement on all levels of the parking garage, specifically at Stairtower locations and the ground level, specifically at the retail corridor and vehicular entry/exits. 7) Emergency Power a. Backup power (i.e. generator) for ground level occupancy, elevators, and lighting fixtures Note: An emergency generator will be provided to service all garage lighting, one elevator, half of all retail lighting and one point of sale location, and public .corridor. Parking System Provisions 1) Pay-on-foot complete parking equipment system including barrier gates, ticket spitters, detector loops, pay stations (minimum of two), etc. 2) Adequate signage to inform patrons of the payment method to include signage locations throughout the parking garage on all floors and near the pay stations 3) Electronic signs at reversible lanes 4) Parking office including ADA compliance, HVAC conditioning, restroom, telephone, internet, customer service window, etc. Exhibit J 11 rimHaab,§ .. EPW INEERS' ECTS October 30, 2009 Ms. Tracey Bruch, CAPP Parking Manager City of Clearwater 100 S. Myrtle Ave., #220 Clearwater, FL 33758 0 www.cimhdahs.cotn TIMOTHY HAAHS & ASSOCIATES. INC. 10305 N.141 41" STREET. SU; TF 201 MI AM4. FL 33178 T.3',,E-%2-7123 F. 305-592-7113 RE: Surf Style/Britt's Parking Garage Parking Structure Design Guidelines - 9/8/09 Meeting Summary Clearwater, FL Dear Tracey: This letter provides an update to the Parking Structure Design Guidelines based upon the following: • October 2, 2009 Finfrock response letter to the Design Guidelines • October 15, 2009 Parking structure site visits by Finfrock and TimHaahs • October 23, 2009 ACI 362 letters by Finfrock and Tourney Consulting Group A list of remaining items to be addressed is provided below: • Architectural Provisions: 2d-iv Generator inclusion • Electrical Provisions: 1g Photometrics final design We look forward to further discussing these comments with Finfrock and the City of Clearwater. Please contact me at your earliest convenience with any questions or comments. Sincerely, 'W" , /,s4--? Mark N. Santos, P.E. Vice President Exhibit J PLANNING I ENGINEERING I ARCHITECTURC I PARKING • Ms. Tracey Bruch Surf Slyte/Brill's Parking Garage October 30. 2009 Page 2 Governing Codes and References 1) 2007 Florida Building Code 2) Code of Ordinances: City of Clearwater, FL 3) Code and Land Development Code, County of Pinellas County, FL 4) Beach by Design: A Preliminary Design for Clearwater Beach - including Section VII. Design Guidelines 5) NFPA 101 Life Safety 6) NFPA 88A Standard for Parking Structures 7) ACI 318-05 Building Code Requirements for Structural Concrete 8) ACI 362.1 R-97 Guide for the Design of Durable Concrete Parking Structures a. Comment - There are several items within this guide which are not applicable to a precast concrete garage. A specific example would be the requirements of Section 3.2 - Drainage. The section requires a cross-slope of 1.5% in the direction of the "gutter" line, but due to the forces associated with twisting of the double tee, a slope of only 1.04% is achievable. However, due to the manufactured nature of precast concrete we are able to consistently provide this slope which in the 120 garages built to date has not negatively impacted the drainage of the structure. In addition, we will be able to comply with the requirements in the section entitled "Structural Provisions" listed below. b. Response - Drainage slopes of between 1.5% and 2% shall be met to ensure proper drainage, as noted in the above mentioned reference. It is our understanding each 12'-0" wide tee (6'-0" on center stems) are able to withstand 2" of warp to accommodate the desired drainage slopes. c. 9/8109 Discussion i. Finfrock stated 1.5" maximum warp can be applied to each tee. TimHaahs recommended that the drain points be lowered to -14" (i.e. Grid C2) to allow a minimum of 1.5% slope from the high point (i.e. Grid Al). In order to maintain the warp limitations, the Grid C1 elevation should be adjusted to -8" Action - Finfrock to confirm. ii. TimHaahs inquired if a penetrating silane sealer will be applied to the structure, however this is currently not included. TimHaahs requested Finfrock incorporate the sealer as identified in ACI 362 Table 3.4 based on the durability zone. Action - Finfrock to confirm. iii. Finfrock intends to use a 3 5/8" flange providing 1 YV cover as permitted by ACI 318. ACI 362 requires a minimum of 1 % ". Per the conference call, TimHaahs found the lesser cover acceptable. Post Meeting - TimHaahs recommends the inclusion of a corrosion inhibitor in the floor members. Action - Finfrock to confirm. d. 10/2/09 Finfrock Response - Please see attached letter from Allen Finfrock, PE concerning the comments regarding ACI 362. e. 10/30/09 TimHaahs Response - Finfrock has provided a letter summarizing a report conducted by Material Service Life in 2008 to estimate the service life of Finfrock garages in various environments throughout the State of Florida. Although the report was not obtainable, a validation letter of this report was provided by Tourney Consulting Group. For item 8-c-i, a 1% minimum drainage slope is acceptable. For items, 8-c-ii and iii, exclusion of sealer and corrosion inhibitor are acceptable. 9) ANSI A117.1 Accessible and Usable Buildings and Facilities Exhibit J Timr"Haa f 1S • e Ms. Tracey Bruch Surf Style/Drill's Parking Garage October 30. 2009 Page 3 10) Design Team is required to design the project under the applicable building codes, regulations and standards at the time of the design submission for approval and construction. 11) Design Team shall incorporate sustainable design practices into the project, such as recycled materials, energy efficient lighting, etc. Functional Provisions 1) 9'-0" x 18'-0" typical parking spaces a. Additional 1'-0" width shall be included for spaces adjacent to continuous obstructions (i.e. columns, walls, fences) 2) Typical floor clearance: Minimum of 7'-0" 3) ADA van space location clearance: Minimum of 8'-2" 4) ADA spaces shall be located adjacent to stair/elevator towers to minimize travel distance 5) Wheelstops shall be provided at ADA spaces only, as required 6) Ramp slopes a. Typical floors shall be between 5% and 6% b. Speed ramps shall not exceed 12% c. Areas near parking equipment shall be between 2% and 3% 7) End bay clearances: Utilize 27'-0' clear at two-way crossovers for proper turning radius a. Comment - We have not provided this, as we have constructed. well over 120 garages using 24' dear drive aisles. b. s s - 24'-0" clear drive aisles are acceptable along straight paths. Per the 'Parking Structures' 3rd edition reference, 26'-6" clear turning radius is the minimum requirement for LOS D. Provide 27'-0" clearance for proper two-way traffic at the end bays. Otherwise, provide justification using a turning template to confirm 24'-0" clearance at end bays can function. c. 9/8/09 Discussion i. 29'-0" clearance provided', 24'-0" wide drive aisle is striped. This is acceptable. ii. TimHaahs recommended Finfrock place a turning template at the entry parking equipment to confirm sufficient room is present for a vehicle to access the ticket station. Action - Finfrock to confirm. d. 10/7109 Finfrock Response - A turning template will be provided as requested during final design of garage. e. 10/30/09 TimHaahs Response - Turning templates have been provided on the Architectural Plans dated *Progress Print 10/9/09'. 8) Queuing: Minimum distance 40'-0" for entry and exit lanes 9) Minimize use of curbs within the parking structure 10) Maximize openings in interior and exterior walls 11) Utilize exterior shearwalls with openings, in lieu of interior locations a. Common - Due to site constraints, we are unable to meet this. b. Response - Will comment further once plans are received and reviewed. c. 9/8/09 Discussion - Finfrock will investigate incorporating openings and/or decreasing the extent of the eastern internal shearwall Exhibit ! TlmHaahs 0 0 Ms. Tracey Bruch Surf Style/Britt's Parking Garage October 30. 2009 Page 4 Action - Finfrock to confirm. d. 10/30/09 Finfrock Response - Final Design Plans will limit width of Shearwall at Gridline C5.25 to extent possible as dictated by Structural Engineer. Convex mirrors will be installed as necessary to facilitate sight lines around potential obstacles. 12) Minimize areas of conflict between pedestrians and vehicles. Where areas of conflict exist, provide a means of traffic calming devices (flashing signals, crosswalk striping, bollards, etc.) a. Comment - Typically provide crosswalk striping and bollards as appropriate. b. es onse - Will comment further once plans are received and reviewed. c. 9/8/09 - Finfrock will incorporate more bollards at the stairtowers and elevator lobbies. 13) Eliminate hiding places such as solid walls and deep comers a. Comment - We can minimize but not eliminate, due to site constraints. b. Response - Will comment further once plans are received and reviewed. c. 9/8/09 Discussion - Finfrock will incorporate. 14) Means to prevent bird nesting including sloped ledges, spikes, repellents a. Comment - We do not provide this and have not included. b. Response - City will defer this response to a later date upon coordination with Maintenance Department. 15) Access along north side of garage to allow for future maintenance and repairs a. Comment - Access for personnel can be provided, but not equipment wider than 3 feet due to site constraints and proximity of adjacent building. b. Response - This is acceptable. 16) Rooms as required for Storage/Utilliy, Electrical, Mechanical, Transformer, Generator, Elevator Machine a. Comment - The only rooms that will be located in the garage portion of this building will be the Elevator Machine Room and Operator's Office. b. Response - Confirm need for Electrical and Utility rooms. Will comment further once plans are received and reviewed. c. 9/8/09 Discussion - Finfrock will incorporate a Utility room adjacent to the parking office. Electrical room is located on the ground floor within the retail area. Amenities 1) Bike racks located on ground floor a. Comment - Is there a specific requirement for the number of bike racks required? b. Response - Provide storage to house a minimum of 8 -10 bikes. City will confirm quantity. c. 9/8/09 - Bike rack inclusion is not required. 2) Rinse off area for patrons located on ground floor a. Comment - There is a possibility to locate a rinse off area on the north side of the building along the walkway to the Stair Tower, would this be acceptable? b. Response - Location preference is on beach side. Will comment further once plans are received and reviewed. c. 9/8109 - Rinse off area inclusion is not required. Exhibit J MmHaahs 0 0 Ms. Tracey Bruch Surf Style/Britt's Parking Garage October 30, 2009 Page 5 Architectural Provisions 1) Stairtowers/Elevator towers a. ADA compliant design and layout b. Enclosure at top level for elevator tower for weather protection i. Past Meeting - Finfrock shall confirm an enclosure is included for punch-thru stair at SW comer of top level. /l. 10/2/09 Finfrock Response -A standing seam metal roof will be provided over the stair. Updated Response - A standing seam roof structure without side glazing will be located over the SW stair, and will be added to the necessary elevations. c. Maximize openness within stairtowers for increased visibility i. Comment - This can not be accomplished on North Stairtower due to proximity of adjacent budding. ii. Response - Provide maximum openness (actual opening or glazing) to greatest extent at both interior and exterior, where fire rating is not required. Will comment further once plans are received and reviewed. iii. 9/8/09 Discussion - Due to fire rating, no openings will be provided internal to the garage. Maximized openness will be provided to the exterior, where fire rating is not required. d. Include glass back elevators for increased visibility i. Comment - The elevator shaft is located in the interior of the building, which from a design standpoint would not benefit from the advantages of a glass back elevator (i.e. allow natural light to penetrate). In regard to security we will be including a CCTV system. ii. Response - Provide glass back openings for visibility within garage to increase passive security. iii. 9/8109 Discussion - Elevator layout has been rotated with the elevator doors facing north, increasing visibility to the elevator lobby area. Post Meeting - Finfrock shall review drainage pattem for positive slope away from elevator shaft. e. Galvanized steel handrails i. Comment - We have included powder coated aluminum handrails. ii. Response - This is acceptable. Abrasive nosings cast into stair treads i. Comment - We do not include these on our stairs. Our stairs have been tested and been determined that to meet or exceed the requirements for slip- resistant surfaces in stairs. In addition, abrasive nosings can become a maintenance issue ii. Response - Provide information to confirm equal slip resistance is achieved. Provide sample of stair treads for review and approval. iii. 9/8/09 Discussion - Finfrock provided a friction test completed by PSI. This is found acceptable. Enclose bottom run of stairs at ground level to eliminate hiding places i. Comment - The exterior of the stair towers are enclosed at the ground level, however the space beneath the stairs inside the stairtowers is open. ii. Response - Enclose area below bottom run of stairs with CMU. Exhibit' MmHaahs 0 0 Ms. Tracey Bfuch Surf Style/Brio's Parking Garage October 30. 2009 Page 6 2) Elevators a. Hydraulic type, minimum of two cabs i. Comment - We are providing two machine-room4ess traction elevators ii. Response -- This is acceptable. b. Vandal resistance cab, hoistway, fixture finishes (i.e. textured stainless steel) c. Emergency call equipped d. Tied into the emergency power source i. Comment - No emergency power source included or required by Code. ii. Response - Confirm requirement for elevators serving structures 4 or more levels. iii. 9/8/09 Discussion - Confirmed requirement not included per FBC. Finfrock will investigate pricing for providing a generator. Action: Item open for further discussion. iv. 10/2/09 Finfrock Response - Finfrock has provided a cost to the Owner to provide a generator to power the following: All garage lighting, public corridor lighting, one elevator, point of sale; and half of all retail lighting. e. Durable floor system (i.e. continuous vinyl tile) 3) Signage a. Adequate wayfinding signage for both vehicles and pedestrians. b. Consider implementing a floor theme to aid patrons in remembering their vehicle location. c. Scotchlite reflective signs i. Comment - Reflective signs will be utilized where required. ii. Response - All wayfinding signs shall be reflective. Structural Provisions 1) Corrosion protection methods in line with ACI 362 2) Galvanized steel precast connections that are protected by grout or cast-in-place toppings or washes 3) Stainless steel precast connections (i.e. tee to tee) that are protected by sealant alone 4) Minimize exposed welded or bolted connections 5) Concrete slab-on-grade with tooled joints and vapor barrier beneath occupied areas 6) Tooled joints with sealants in cast4n-place toppings or washes Waterproofing Provisions 1) Expansion joints located at high points 2) Compressible filler material at vertical expansion joints between garage and stairtowers, such as an Emseal Colorseal product 3) Elastomeric deck coating above all occupied spaces and MEP rooms a. Commen - We have included an Auto-Gard polyurethane vehicular traffic deck coating produced by Neogard over all occupied spaces that carries a 10 year Joint and Several Warranty b. Response - This is acceptable for areas within the footprint of the garage. Exhibit i T'imHaahs 0 0 Ms. Tracey Bruch Surf Style/Brill's Parking Garage October 30. 2009 Page 7 4) Treat the exposed ramp as a plaza deck to provide increased waterproofing protection for occupied space below a. Comment - We have included an Auto-Gard polyurethane vehicular traffic deck coating produced by Neogard over all occupied spaces that carries a 10 year Joint and Several Warranty b. Response - Provide canopy or roof above exterior ramp to eliminate direct rainfall onto tees above occupied space, in addition to deck coating. Providing a warranty does not guarantee water leakage into the occupied space will not occur. c. 918/09 Discussion - Finfrock provided Autogard waterproofing product data utilized for a similar condition. Finfrock and City of Clearwater will further discuss addressing maintenance and potential leak repairs as part of the Maintenance Agreement. Action - Item open for further discussion. d. 10/30/09 TimHaahs Response - On October 15, 2009, TimHaahs visited the Publix parking garage in Fort Lauderdale to observe a deck coating applied above an occupied floor. It should be noted that the deck coating was located on the floor below the roof level. TimHaahs found it acceptable to utilize the deck coating provided that a flood test (i.e. 24 hour) shall be included in the specifications for final approval. Exhibit J TimHaahs Ms. Tracey Bruch Sur( Style/13611's Parking Garage October 30. 2009 Page 8 Plumbing Provisions 1) Cold water risers and hose bibs at each parking level for garage washdown 2) Sufficient slope on floor members and an adequate number of floor drains on all levels to negate any areas of water ponding 3) Floor drains used specifically for parking structures, such as Watts FD-900 epoxy coated models or equal a. Comment - Storm Drainage of the upper decks will utilize Slot Drains fastened below the double tee flange, with the entrance a %" wide joint between the double tee flanges. b. Response - Provide a conventional drain system use for parking structures in lieu of a gutter type system. Gutter type system poses maintenance concerns. c. 9M/09 Discussion - Finfrock provided details for the typical tier and roof tier gutter system. A minimum gap of %' will be maintained for heel protection and Finfrock has remedial details to address a larger gap. Action - TimHaahs will visit locations in the MIA area containing installed gutters for evaluation. Item remains open. d. 10/30/09 TimHaahs Response - On October 15, 2009 TimHaahs visited the Mercy Hospital in Miami to observe the installed gutter drain system. The drainage system was found acceptable with the following provisions: i. Include regular cleaning of the drain slots as part of the routine maintenance program to ensure effectiveness of the system ii. At the top tier, joints will be sized accordingly to accommodate the rainfall and metal grates will be installed over larger joints. iii. Cleanouts in the steel gutter shall be provided for access. 4) Galvanized steel pipe guards for any exposed risers for bumper guard protection a. Comment -We will provide bumper guard protection of pipes as needed. b. Response -Bumper guards will be provided for all risers subject to vehicles. 5) Storm retention system shall be easily accessible for maintenance Fire Protection Provisions 1) Portable fire extinguishers as required by NFPA 10 Standard for Portable Fire Extinguishers 2) Fully sprinklered parking garage 3) Galvanized steel pipe guards for any exposed risers for bumper guard protection Electrical Provisions 1) Lighting levels a. Meet or exceed current minimum IES standards b. Parking/Drive aisles -10 fc (minimum average) i. en -We have provided 4 fc average, with a 10/1 Max/Min Ratio ii. Response - Provide a minimum of 5-6 fc average. c. Vehicular Entry/Exits - 50 fc (minimum average) i. Comment - Lighting will meet the requirements of IES RP-20 ii. Response -This is acceptable. Exhibit J MmHaahs Ms. Tracey Bructl Surf Style/Brlit's Parking Garage October 30. 2009 Page 9 d. Stairtowers/Lobby interiors/Ground level retail areas and corridors - 20 fc (minimum average) i. Comment - Lighting will meet the requirements of IES RP-20 ii. Response - This is acceptable. e. Provide additional lighting at any interior shearwalls i. Comment - Lighting will meet the requirements of IES RP-20 ii. Response -- This is acceptable. f. Emergency lighting to meet Code requirements i. Response - Confirm provision for this requirement. See item 7 below. g. Provide photometrics of light levels listed above i. 9/8/09 Discussion - Finfrock will submit for review upon completion. ii. 10/2/09 Finfrock Response:- Preliminary photometrics were submitted on 9/28/09 to the City of Clearwater and TimHaahs.. Final Photometrics will be submitted during the Final Design Phase. 2) Lighting fixture a. Fluorescent type fixtures with uplight component i. Comment - Fixtures compliant with Sea Turtle Lighting Restrictions will be utilized. ii. Response - This is acceptable. iii. 9/81/09 - High pressure sodium fixtures will be utilized for compliance with Sea Turtle Lighting Restrictions. 3) Lighting control system a. Programmable lighting control system for time and date control of light fixtures b. Photocells for controlling perimeter lighting and vehicular entry/exit areas. 4) Receptacles a. Weather proof enclosed types located at each stairtower and elevator lobby, each level 5) Conduit a. No placement within expansion joints. b. Expansion capacity when crossing an expansion joint c. Exposed conduit on the exterior of the garage is not permitted 6) Security System a. Consider implementation of a CCTV system with camera placement on all levels of the parking garage, specifically at Stairtower locations and the ground level, specifically at the retail corridor and vehicular entrylexits. 7) Emergency Power a. Backup power (i.e. generator) for ground level occupancy, elevators, and lighting fixtures i. Comment - No emergency power source included or required by Code. ii. Response - FBC 1006.1 Means of Egress Illumination requires emergency lighting. Confirm means of providing backup power (i.e. battery, generator) Exhibit J TimHaahs 0 9 Ms. Tracey BruCh Surf Style/Britt's Parking Garage October 30, 2009 Page 10 iii. 9/8/09 Discussion -Separate "bug-eye" fixtures with individual batteries will provide emergency lighting. Maintenance of emergency fixtures shall be included in the Maintenance Agreement. b. 10/30/09 TimHaahs Response -Reference Architectural Provisions section 2d-iv for generator inclusion. Parking System Provisions 1) Pay-on-foot complete parking equipment system including barrier gates, ticket spitters, detector loops, pay stations (minimum of two), etc. 2) Adequate signage to inform patrons of the payment method to include signage locations throughout the parking garage on all floors and near the pay stations 3) Electronic signs at reversible lanes 4) Parking office including ADA compliance, HVAC conditioning, restroom, telephone, internet, customer service window, etc. Exhibit J TimHaahs • 9 TimHaaAR www.timhaahs.com _ ENGINEER CFIIrtE?T$ TIMOTHY HAAHS S ASSOCIATES. INC. 10305 N.W 41" STRFFT. SUITE 201 MIAMI, FL 33170 T. 305 552-7123 F 305592.7113 January 20, 2010 OPERATIONAL MAINTENANCE SCH9j?!jLF= DESCRIPTION ACTION FREQUENCY ELEiGTRIirAL' Sl(STEM, i ?. A N, I. Light Fixtures Inspect Monthly Relam As Required Exit & Emergency Ins ct Monthly Lights Service As Required Distribution Panels Inspect Semi-Annual Electrical Conduit Inspect Semi-Annually. RReplace As Re uired ;SEC RITY>'EQUIP.MENT Phones, Emergency Call Buttons Inspect Week Service As Required IAfIEQ A IGAL EQUIPMENT'". Elevators Inspect Per Service Agreement - Define Timeframe Service Per Service Agreement - Define Timeframe Ventilation/Exhaust F Inspect Monthly ans Service Per Manufacturer's Recommendation Fire Protection Equip. Inspect Annually Replace As Required Landscape Irrigation System Inspect As Required Re air/Clean As Required Manholes, Sump Pits, Storm Retention Inspect Annually System And Drain Pits Re air/Clean As Required Other Mechanical Inspect Monthly Equipment (Including Generator) Service As Required GRA ;HIG ,- FL O RSTRIPING: Signs Inspect Semi-Annually Repair As Required Striping Inspect Semi-Annual Repair As Required .CLEA'NINGREQUIREMENTS' , 1:..::::; Stairs, Curtainwall, and Clean/sweep Daily Storefront Systems Washdown Semi-Annual Parking Area Sweep Weekly Floors Washdown Semi-Annually Expansion Joint Seals Clean Quarter) DRAINAGE Floor Drains Inspect Daily Clean Month Ponded Water Remove As Required INSPECTION Tripping Hazards And Safe Check Inspect Daily Comprehensive Walk-Through Perform Annually Exhibit K PLANNING ENGINEERING ARCHITECTURE PARKING ? o Ms. Tracey Bruch Surf Style/Britt's Parking Garage January 20, 2010 Page 2 STRUCTURAL MAINTENANCE SCHEDULE DESCRIPTION ACTION FREQUENCY CON,CRI~TE FLQOR;SYSTEM .. ,' Visual Inspection Perform Annual) Delamination and/or Perform Annually Materials Testing Joint Sealant Ins ct Semi-Annual) Repair As Required Traffic Topping Inspect Semi-Annual) Repair As Required Random Cracks Rout and As Required Seal BEA ty;p `U S ANBUMP.Ei 11`t:':#ri": Visual Inspection Perform Annual) 3fi 31Rt4 WERW t, t; tf ;; ; :?' et '.} w Visual Inspection Perform Annual) Storefront and Curtainwall Inspect Annually System JO(N1'$EAIANT•,$YSTEMS Expansion Joints, Inspect Semi Annually Construction Joints , Control Joints, and Replace Leaking As Required; Traffic Deck Coating Joints All Joints Every 8-12 Years EXPO$Ep STEEL Inspect Annually ' ,i Clean and As Required Paint IMASONJRY; .;. Inspect Annually Clean As Required F Apply Per Engineer's Sealer Recommendation ;BF RIM9LPADS? ;V o j; Inspect Annually f 7INSP••ECMON f I' Perform Annually By Structural Engineer Exhibit R TimHaahs 0 10 Ms. Tracey Bruch Surf Style/Britt's Parking Garage January 20, 2010 Page 3 AESTHETIC MAINTENANCE SCHEDULE DESCRIPTION ACTION FREQUENCY GENERAL'APPEARA,NCE Trash Pickup Dail General Cleaning Clean Weekly Windows Wash Quarter) .LANDSCAPING Grass Mow Weekly Shrubs Trim As Required Trees Prune Annual PAINTEP,'QRT?II+C • Inspect Semi-Annually TACES` 3U ,' Touch Up Semi-Annually Clean and As Required Repaint ;ARCHI,TECITI URAL-0 Inspect Annually Replace As Required; Failed All Joints Joints Every 8-12 Years Exhibit K TimHaahs 0 0 PUT AGREEMENT (Surf Style Condominium - Parking Unit) THIS PUT AGREEMENT (Surf Style Condominium - Parking Unit) (the "Agreement") is made and entered into as of this day of , 20 , by and between , a (the "Lender'), and THE CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation (the "Qjy ). RECITALS: A. The City and L.O.M., Inc., a Florida corporation (the "Developer') have entered into that certain Agreement for Development of Property in the City of Clearwater (Surf Style Condominium Project) dated , 2010 (the "Development Agreement"). The Development Agreement sets forth the terms and conditions governing the development and construction of a 41,000+/- square foot retail/commercial project, including a parking garage containing approximately 349 parking spaces, of which 300 spaces will be open to the public (collectively, the "Proiect"), on certain real property located on South Gulfview Boulevard in the City of Clearwater, Florida, more particularly described in Exhibit A attached hereto (the "Pro e " ). B. The Development Agreement contemplates that the Property will be submitted to the condominium form of ownership pursuant to Chapter 718 of the Florida Statutes and condominium documents in substantially the form attached to the Development Agreement as Exhibit D. The condominium will be known as "Surf Style Condominium" and will contain three (3) units, two (2) "Retail Units" and one (1) "Parking Unit", as defined and described in Section 2.3 of the Development Agreement. C. Pursuant to Section 6.01 of the Development Agreement, the City agreed to enter into a "put' agreement with Developer's lender providing construction financing for the Project, pursuant to which such lender would have the option to require the City to purchase the Parking Unit (defined below) under certain circumstances in the event it acquired title to the Project following an event of default by Developer. D. Contemporaneously herewith, Lender is making a loan to Developer to finance the development and construction of the Project (as amended, restated, assigned and renewed from time to time, the "Project Financing"). Lender has required as a condition to the closing of the Project Financing, inter alia, that the City agree to purchase the Parking Unit under certain circumstances in the event Lender acquires title to the Project under the Project Financing documents (through foreclosure, deed in lieu of foreclosure or otherwise) following an event of default by Developer under the Project Financing. E. This Agreement constitutes the (and satisfies the requirement for a) "put" agreement between Lender and the City as contemplated by the Development Agreement and the Project Financing documents, pursuant to which the City has agreed to purchase the Parking Unit from Lender, subject to and upon the terms and Exhibit L MIA 180, 891, 006V7 2-8-10 conditions hereinafter set forth. At a duly called public meeting on , 2010, the City Commission approved this Agreement and authorized and directed its execution by the appropriate officials of the City. Likewise, the appropriate shareholders, directors and/or officers of Lender have approved this Agreement and have authorized certain individuals to execute this Agreement on its behalf. NOW, THEREFORE, in consideration of the mutual covenants and promises herein set forth, the parties agree that the foregoing recitals are true and correct and further agree as follows: 1. Put Ootion. If, following the Completion Date (as defined in the Development Agreement) and prior to the date which is five (5) years following the completion of the Project (the "Put Trigger Deadline"), an event of default by Developer occurs under the Project Financing, Lender may require the City to purchase from Lender the parking unit delineated on Exhibit A-1 attached hereto (the "Parking Unit") in Surf Style Condominium, a Condominium, according to the Declaration of Condominium recorded or to be recorded in the Public Records of Pinellas County, Florida (as amended and supplemented from time to time, the "Declaration"), subject to the terms and conditions of this Agreement, including without limitation the "Put Conditions" (defined below). Lender shall exercise the foregoing right to "put" the Parking Unit to the City by written notice (the "Put Trigger Notice") to the City provided in accordance with paragraph 12 of this Agreement, provided that the Put Trigger Notice is sent to the City prior to the Put Trigger Deadline. The form of the Put Trigger Notice is attached hereto as Exhibit B. For purposes hereof, the Project shall be deemed complete when conditional or final certificate(s) of occupancy have been issued for the entire Project. The Parking Unit shall include an undivided interest in the common elements appurtenant thereto as described in the Declaration. Notwithstanding any provision in this Agreement to the contrary, the City's obligation to purchase the Parking Unit shall be subject to the following conditions (collectively, the "Put Conditions"): (a) Lender shall have acquired title to the Project through foreclosure, deed in lieu of foreclosure or otherwise following an event of default by Developer under the Project Financing documents; (b) A certificate of occupancy shall have been issued for the Parking Unit; (c) The Project shall have been submitted to the condominium form of ownership under Chapter 718 of the Florida Statutes and the Declaration shall have been recorded in the Public Records of Pinellas County, Florida; (d) The Parking Unit shall be substantially in the condition required under Exhibit J to the Development Agreement; and 2 MIA 180,691,006v724-10 0 0 (e) Lender shall provide written notice (the "Put Conditions Notice") to the City certifying that the Put Conditions set forth in clauses (a) through (d) above have been satisfied. The form of the Put Conditions Notice is attached hereto as Exhibit B-1 and shall be provided to the City in accordance with paragraph 12 of this Agreement. Lender and the City acknowledge and agree that this Agreement shall be null and void, and of no force and effect, if either Lender has not provided the Put Trigger Notice to the City by the Put Trigger Deadline or any of the Put Conditions are not met by the date which is six (6) years following completion of the Project (the "Put Outside Date"). 2. Purchase Price. The purchase price to be paid by the City to Lender for the Parking Unit is Nine Million Three Hundred Thousand and No/100 Dollars ($9,300,000.00) (the "Purchase Price"), subject to adjustments and prorations as provided herein. The proceeds of the Purchase Price will be applied by Lender to the principal balance of the Project Financing, and any fees, costs, interest, penalties and/or other charges or sums accrued thereon or due thereunder. 3. Terms of Payment. The Purchase Price shall be paid to Lender as follows: $ 9,300,000.00 approximately, in current funds at time of Closing, subject to adjustments as provided in paragraph 2 and subject to prorations and adjustments as hereinafter provided, to be paid by cashier's check or by wire transfer of federal funds. $ 9.300.000.00 Total Purchase Price, subject to adjustment as provided in paragraph 2. 4. Condition of Title. At the Closing, fee simple title to the Parking Unit shall be conveyed to the City by special warranty deed, subject to the following matters: (a) ad valorem real estate taxes for the year of Closing and subsequent years; (b) the Development Agreement (if still in effect); (c) the Declaration and other condominium documents; (d) the parking covenant contemplated by Section 2.03(3) of the Development Agreement; (e) the covenants, restrictions, easements and other exceptions specifically identified on Exhibit C attached hereto; (f) all laws, ordinances, regulations, restrictions, prohibitions and other requirements imposed by governmental authority, including, but not limited to, all applicable building, zoning, land use and environmental ordinances and regulations; (g) matters affecting the condition of title to the Property (or any part thereof) created by or with the written consent of the City; and (h) any other exceptions or matters recorded against the Property (or any part thereof) after the date of this Agreement with respect to the development, construction, operation and management of the Project (such as reservations, covenants, utility easements, . reciprocal easement agreements and any amendments or supplements thereto) and-,which do not adversely affect the ownership or operation of the Parking 3 MIA 180,691,006VT24-10 0 0 Unit. Title to the Parking Unit will be conveyed to the City at Closing free and clear of any mortgage, lien or other encumbrance securing the Project Financing. 5. Closing. The closing (the "Closing") shall be held on the date which is sixty (60) days following the City's receipt of the Put Conditions Notice, provided that the City shall have no obligation to purchase the Parking Unit and close this transaction if the Put Conditions Notice is not delivered or Put Conditions are not met by the Put Outside Date as provided in paragraph 1 above. Closing shall take place at the offices of attorneys for Lender, located at , Florida , or through an escrow with Lender's attorneys whereby Lender, the City and their attorneys need not be physically present at Closing and may deliver documents by courier or other means. (a) At Closing, Lender shall execute and deliver to the City the following Closing documents: (i) a special warranty deed in the form attached hereto as Exhibit D, subject only to the Permitted Exceptions (defined below); (ii) a customary and appropriate mechanic's lien affidavit, affidavit of exclusive possession, "gap" affidavit, and non-foreign affidavit and/or certificate pursuant to subparagraph 8(a)(iv) below; and (iii) appropriate evidence of Lender's formation, existence and authority to sell and convey the Parking Unit, including a partner or member consent, corporate resolution and/or such other evidence of authority and good standing (as appropriate) with respect to Lender as may be reasonably required by the title insurance company issuing title insurance covering the Parking Unit in favor of the City. (b) At Closing, Lender and the City shall each execute counterpart closing statements and such other documents as are reasonably necessary to consummate the transaction contemplated by this Agreement. 6. Prorations, Utilities. (a) Prorations Generally. Real estate and personal property taxes, costs and revenues and all other proratable items for the Parking Unit shall be prorated as of the date of Closing, except that all current, pending and/or levied condominium assessments or fees which were enacted, approved or originated prior to Closing shall be paid by Lender. The City shall pay assessments and fees levied after the Closing date. For purposes of this provision, the term "levied" shall mean when the Board of the Condominium Association or required Unit Owners or both have voted in accordance with Florida law and the Declaration to approve an assessment or fee. All capitalized terms used in this provision without 4 MIA 180,691,006Y724-10 • definition in this Agreement shall have the meanings given to them in the Declaration. (b) Taxes. In the event real estate and personal property taxes for the year of Closing are unknown, the tax proration will be based upon the taxes for the prior year, and at the request of either party, the taxes for the year of Closing shall be reprorated and adjusted when the tax bill for such year is received and the actual amount of taxes is known. If the Parking Unit is included within the tax identification folio number for the balance of the Property at the time of Closing (or at the time of reproration hereunder), then, for purposes of allocating real estate taxes and assessments during the calendar year of Closing to the Parking Unit, the parties agree that the share of such real estate taxes and assessments attributable to the Parking Unit shall be equal to the product of (a) the aggregate real estate taxes and assessments determined to be due for the entire Property for the year of Closing, multiplied by (b) the percentage interest of common elements allocated to the Parking Unit under the Declaration. (c) Utilities. With respect to electricity, water and sewer services and other utilities (collectively, "Utilities"), the parties shall endeavor to have the respective companies providing the Utilities read the meters for the Utilities on or immediately prior to the Closing date. Lender shall be responsible for all charges based on such final meter reading, and the City shall be responsible for all charges relating to the Parking Unit thereafter. If such readings are not obtainable, then, until such time as readings are obtained, charges for all Utilities for which readings were not obtained shall be prorated as of the Closing date based upon the per diem rate obtained by using the last period and bills for such Utilities that are available. Upon the taking of a subsequent actual reading, such apportionment shall be adjusted and reprorated to reflect the actual per diem rate for the billing period prior to Closing and Lender or the City, as the case may be, shall promptly deliver to the other the amount determined to be due with respect to the Parking Unit upon such adjustment. To the extent Utilities are not separately metered to the Parking Unit, a fair and equitable portion of such Utilities shall be allocated to the Parking Unit (for the initial proration and any subsequent reproration) using the same the methodology for cost allocation of utilities between condominium units provided in the Declaration. The provisions of this paragraph shall survive the Closing. 7. Closing Costs. The Lender shall pay the cost of documentary stamps due on the special warranty deed and recording costs for the deed. The Lender shall be solely responsible for the cost of examining title and obtaining the title insurance policy update or report on the Parking Unit, and the premiums and any other related fees and costs for any owner's title insurance policies update and/or report. Each party shall pay its own legal fees except as provided in subparagraph 15(c) below. All other closing 5 MIA 180,691,006v72-8-10 • o costs shall be apportioned in the manner customary for commercial for real estate transactions in Pinellas County, Florida. 8. Representations and Warranties. (a) Lender represents and warrants to the City and agrees with the City that each of the following statements is currently true and accurate and shall be true and accurate at the time of closing, and agrees that the City may rely upon each of the following statements: (i) Lender is a validly existing national banking association, and has all requisite 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. (ii) This Agreement and, to the extent such documents presently exist in a form accepted by the City and Lender, each document contemplated or required by this Agreement to which Lender 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, Lender, 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 Lender, or (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 Lender 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 Lender is a party, specifically including any covenants of any bonds, notes, or other forms of indebtedness of Lender outstanding on the date of this Agreement. (iii) This Agreement and, to the extent such documents presently exist in a form accepted by the City and Lender, each document contemplated or required by this Agreement to which Lender is or will be a party constitute, or when entered into will constitute, legal, valid and binding obligations of Lender enforceable against Lender 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. 6 MIA 180,891,006v72.8-10 0 0 (iv) Lender is not a "foreign person" within the meaning of the United States tax laws and to which reference is made in Internal Revenue Code Section 1445(b)(2). At Closing, Lender shall deliver to the City an affidavit to such effect, and also stating Lender's tax identification number. Lender acknowledges and agrees that the City shall be entitled to fully comply with Internal Revenue Code Section 1445 and all related sections and regulations, as same may be modified and amended from time to time, and Lender shall act in accordance with all reasonable requirements of the City to effect such full compliance by the City. (b) The City represents and warrants to Lender and agrees with Lender that each of the following statements is currently true and accurate and shall be true and accurate at the time of closing, and agrees that Lender may rely upon each of the following statements: (i) The City is a validly existing body corporate and politic of the State of Florida, and has all requisite 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. (ii) This Agreement and, to the extent such documents presently exist in a form accepted by the City and Lender, 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, or (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 date of this Agreement. (iii) This Agreement and, to the extent such documents presently exist in a form accepted by the City and Lender, 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, 7 MIA 180,681,006v7.2-8-10 0 0 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. (iv) The City will establish Capital Improvement Project 315-9xxxx (Surf Style Condominium - Parking Unit) and will transfer the amount of $9,300,000 to this project to be used only for the purposes expressly provided herein. The $9,300,000 project is earmarked for the purchase of the Parking Unit by the City under the terms and conditions of this Agreement during the term hereof. Accordingly, from and after the date of this Agreement throughout the entire term hereof, the City shall maintain the $9,300,000 balance in this project, and shall not spend any portion of such funds for any purpose (other than the purchase of the Parking Unit) for so long as the City's obligations under this Agreement remain in effect. The resolution of the City Commission approving this Agreement shall specifically approve the foregoing $9,300,000 project on the terms stated herein and direct the Office of Management and Budget to insure the reserve is maintained on all appropriate operating plans, budgets and accounts of the City. Notwithstanding any provision in this Agreement to the contrary, if the City breaches its obligations under this provision at any time during the term of this Agreement (whether before or after the date of the Put Conditions Notice), Lender shall have all rights and remedies available to it at law and in equity with respect to such breach, including without limitation the right to specific performance of the City's obligations hereunder. All of the foregoing representation and warranties shall be true and correct on the date of this Agreement and on the date of Closing. The provisions of this paragraph shall survive the Closing. 9. Default Provisions. The following default provisions shall apply to any default by a party under this Agreement after the date of the Put Conditions Notice: (a) City Default. In the event of a default by the City under this Agreement which is not cured within ten (10) days following written notice from Lender, Lender shall have the right to: (i) terminate this Agreement, whereupon the parties shall be released from all further obligations under this Agreement, except the obligations which by their express terms survive a termination, or, alternatively, (ii) seek specific performance of the City's obligations hereunder and/or any other equitable remedies, without thereby waiving damages. In addition to the foregoing, if the City defaults in-the payment of any amount due to Lender hereunder, then such unpaid 8 MIA 180,691,006v7241-10. C7 amount shall accrue interest at the per annum rate of eighteen percent (18%) accruing from the date of such default. (b) Lender Default. In the event of a default by Lender under this Agreement which is not cured within ten (10) days following written notice from the City, the City at its option shall have the right to: (i) terminate this Agreement, whereupon the parties shall be released from all further obligations under this Agreement, except the obligations which by their express terms survive a termination, or, alternatively, (ii) seek speck performance of Lender's obligations hereunder and/or any other equitable remedies, without thereby waiving damages. 10. Brokers. The parties each represent and warrant to the other that they have not dealt with any real estate broker, salesman or finder in connection with this transaction. If a claim for brokerage in connection with the transaction is made by any broker, salesman or finder claiming to have dealt through or on behalf of one of the parties hereto ("Indemnitor»), Indemnitor shall indemnify, defend and hold harmless the other party hereunder ("Indemnitee"), and Indemnitee's members, shareholders, partners, officers, directors, employees, agents and representatives, from all liabilities, damages, claims, costs, fees and expenses whatsoever (including reasonable attorney's fees and court costs at trial and all appellate levels) with respect to said claim for brokerage. The provisions of this paragraph shall survive the Closing and any cancellation or termination of this Agreement. 11. Assignability. The City shall not be entitled to assign this Agreement, or its rights or obligations hereunder, without the prior written consent of Lender, which may be granted or withheld in Lender's sole discretion. Lender shall be entitled to freely assign this Agreement (including all of its rights and obligations hereunder) without restriction; provided, however, that the assignee shall assume all obligations of Lender hereunder. 12. Notices. Any notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given if delivered by hand, sent by facsimile transmission, sent by recognized overnight courier (such as Federal Express) or mailed by certified or registered mail, return receipt requested, in a postage prepaid envelope, and addressed as follows: 9 MIA 180.691.006V7 2-8-10 • If to the City at: City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 Attn: City Manager Fax. No. With a copy to: Pamela K. Akin, Esq. Clearwater City Attorney 112 S. Osceola Avenue Clearwater, FL 33756 Fax No. (727) 562-4021 If to Lender at: With a copy to: Attn: _ Fax No. Attn: _ Fax No. Notices personally delivered, sent by facsimile transmission or sent by overnight courier shall be deemed given on the date of delivery and notices mailed in accordance with the foregoing shall be deemed given three (3) days after deposit in the U.S. mails. Each party shall be entitled to change its address for notices from time to time by delivering to the other party notice thereof in the manner herein provided for the delivery of notices. 13. Risk of Loss. If, between the date of the Put Conditions Notice and Closing, the Parking Unit or any portion thereof is damaged or destroyed by fire or other casualty or taken by eminent domain, Lender shall promptly repair and restore the Parking Unit to the same condition as existed before the fire or casualty and Closing shall be deferred for a commensurate period of time to permit such repair and restoration. In such event, Closing shall be rescheduled to the date which is ten (10) days following the restoration of the Parking Unit to the condition that existed immediately prior to the damage or taking (or as close to such condition as possible, in the case of eminent domain) and issuance of a new certificate of occupancy for the Parking Unit (if such restoration requires same). In the case of eminent domain, at Closing, the City shall be entitled to all condemnation awards for the Parking Unit, less any portion thereof used to restore the Parking Unit to the condition required herein. 14. Radon Gas. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state 10 MIA 180,691,006v72$10 0 0 guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county health department. 15. Miscellaneous. (a) This Agreement shall be construed and governed in accordance with the laws of the State of Florida. All of the parties to this Agreement have participated fully in the negotiation and preparation hereof; and, accordingly, this Agreement shall not be more strictly construed against any one of the parties hereto. (b) In the event any term or provision of this Agreement be determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Agreement shall be construed to be in full force and effect. (c) In the event of any litigation between the parties under this Agreement, the prevailing party shall be entitled to reasonable attorney's fees and court costs at all trial and appellate levels. The provisions of this subparagraph shall survive the Closing coextensively with other surviving provisions of this Agreement. (d) In construing this Agreement, the singular shall be held to include the plural, the plural shall include the singular, the use of any gender shall include every other and all genders, and captions and paragraph headings shall be disregarded. Handwritten or typewritten provisions initialed by Lender and the City shall prevail over any conflicting printed provisions of this Agreement. (e) All of the exhibits attached to this Agreement are incorporated in, and made a part of, this Agreement. (f) Time shall be of the essence for each and every provision hereof. (g) If any date upon which, or by which, action required under this Agreement is a Saturday, Sunday or legal holiday recognized by the Federal government, then the date for such action shall be extended to the first day that is after such date and is not a Saturday, Sunday or legal holiday recognized by the Federal government. (h) This Agreement constitutes the entire agreement between the parties and there are no other agreements, representations or warranties with respect to the subject matter hereof other than as set forth herein. This Agreement may not be changed, altered or modified except by an instrument in writing signed by City and Lender. This Agreement shall be binding upon the parties hereto and their respective successors and permitted assigns. 11 MIA 180, 691,006V7 241-10 (i) This Agreement may be executed in multiple counterparts each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK - SIGNATURES ON FOLLOWING PAGE(S)] 12 MIA 180,691,006v72--&10 • • EXECUTED as of the date first above written. WITNESSES: LENDER: ,a By: Print Name: Name: Title Print Name: CITY: Attest: THE CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation By: By: Cynthia Goudeau, City Clerk Frank V. Hibbard, Mayor Approved as to form: Pamela K. Akin City Attorney 13 MIA 180,691,006v72$10 0 0 EXHIBIT A LOM PROPERTY PARCEL 1: Lot 110, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. PARCEL 2: Lots 60, 61 and 62, and the Southerly one-half of Lot 107 and all of the Lots 108 and 109, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida. TOGETHER WITH THE FOLLOWING DESCRIBED PARCELS: The Easterly 1/2 of Gulfview Boulevard lying West of and adjacent to the Westerly boundaries of Lots 60, 61 and 62, THE LLOYD-WHITE-SKINNER SUBDIVISION, as recorded in plat book 13 on pages 12 and 13 of the Public Records of Pinellas County, Florida, more particularly described as follows: Begin at the Northwest corner of said Lot 60; thence 180.12 feet along the Westerly boundary of said Lots 60, 61 and 62, and along the arc of a curve to the right with a radius of 6017.52 feet, subtended by a chord distance of 180.11 feet, bearing S0803510311W to the Southwest corner of said Lot 62; thence N80°34'24"W along the Westerly extension of the Southerly boundary of said Lot 62, a distance of 35.00 feet to a point of intersection with the centerline of said Gulfview Boulevard, a 70 foot wide right of way; thence 179.08 feet along said centerline and along the arc of a curve to the left with a radius of 5982.52 feet, subtended by a chord distance of 179.08 feet, bearing N08°35'03"E to a point of intersection with the Westerly extension of the Northerly boundary of said Lot 60; thence S82°15'44"E a distance of 35.00 feet to the Point of Beginning. • • EXHIBIT A-1 Delineation of Parking Unit The "Unit' delineated as the "Parking Unit" in the Declaration. MIA 180,691,006v72-8-10 EXHIBIT B Form of Put Trigger Notice [INSERT LETTERHEAD OF LENDER] 20_ VIA [ City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 Attn: City Manager Fax. No. City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 Attn: City Attorney Fax No. Re: Put Trigger Notice under Put Agreement (Surf Style Condominium - Parking Unit) dated -,20 - (as amended, modified, assigned and supplemented from time to time, the "Put Agreement") by and between , its successors and assigns (the "Lender"), and the City of Clearwater, Florida, a Florida municipal corporation (the "City") Dear Sir or Madam, Please accept this letter as Lender's official notice to the City that an event of default has occurred under the Project Financing documents and Lender hereby elects to "put" the Parking Unit to the City. This Put Trigger Notice is being provided to the City in accordance with the terms and conditions of the Put Agreement, including, without limitation, the requirement for delivery of the Put Trigger Notice prior to the Put Trigger Deadline under paragraph 1 thereof. Please acknowledge the City's receipt of this Put Trigger Notice by signing the acknowledgment below and returning the original to my attention as soon as possible. Please note that capitalized terms not defined herein shall have the meanings provided in the Put Agreement. If you have any questions or wish to discuss the Closing, please contact me. Sincerely, [insert signature block for Lender] By: Name: Title: [Acknowledgment On Next Page] MIA 180.691,006x724-10 • Agreed and Accepted on this - day of , 20 Attest: By: , City Clerk Approved as to form: , City Attorney • THE CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation By: Mayor MIA 160,691,006v72-&10 EXHIBIT B-1 Form of Put Conditions Notice [INSERT LETTERHEAD OF LENDER] 20_ VIA f 1 City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 Attn: City Manager Fax. No. City of Clearwater 112 S. Osceola Avenue Clearwater, FL 33756 Attn: City Attorney Fax No. Re: Put Conditions Notice under Put Agreement (Surf Style Condominium - Parking Unit) dated _, 20_ (as amended, modified, assigned and supplemented from time to time, the "Put Agreement") by and between , its successors and assigns (the "Lender"), and the City of Clearwater, Florida, a Florida municipal corporation (the "City") Dear Sir or Madam: As you know, Lender exercised its right to "put" the Parking Unit to the City by that certain Put Trigger Notice dated , 20_ This Put Conditions Notice is being provided to the City in accordance with the terms and conditions of the Put Agreement, including, without limitation, the requirement for delivery of the Put Conditions Notice prior to the Put Outside Date. As required under paragraph 1 of the Put Agreement, Lender hereby certifies that all of the Put Conditions in the Put Agreement have been met before the Put Outside Date. Accordingly, the closing for the Parking Unit shall occur within sixty (60) days following the City's receipt of this Put Conditions Notice and the parties shall close on the purchase and sale of the Parking Unit, subject and pursuant to the terms and conditions provided in the Put Agreement. Please acknowledge the City's receipt of this Put Conditions Notice by signing the acknowledgment below and returning the original to my attention as soon as possible. Please note that capitalized terms not defined herein shall have the meanings provided in the Put Agreement. If you have any questions or wish to discuss the Closing, please contact me. Sincerely, [insert signature block for Lender] By: Name: Title: [Acknowledgment On Next Page] MIA 180,691,006V7 2-8-10 ' r II Agreed and Accepted on this - day of )20 _ Attest: THE CITY OF CLEARWWATER, FLORIDA, a Florida municipal corporation By: By: City Clerk , Mayor Approved as to form: , City Attorney MIA 180,691,006v72$10 • e EXHIBIT C Existing Title Exceptions 1. Rights, if any, of the public to use as a public beach or recreation area any part of the land lying between the body of water abutting the subject property and the natural line of vegetation, bluff, extreme high water line, or other apparent boundary line separating the publicly used area from the upland private area. 2. Rights of the State of Florida based on the doctrine of the state's sovereign ownership of lands lying below the mean high water line of any navigable or tidally influenced waters. 3. Rights of the United States government, arising by said government's control over navigable waters involving navigation and commerce, with respect to any portion of the Property which is artificially filled land in what was formerly navigable waters. 4. Coastal Construction set back line as established by Section 161.052 and Section 161.053, Florida Statutes. 5. Easements, claims of easements, boundary line disputes, overlaps, encroachments or other matters not shown by the public records which would be disclosed by an accurate survey of the Property. MIA 180,691,006v72-8-10 • w EXHIBIT D Form of Special Warranty Deed THIS INSTRUMENT PREPARED BY (OR UNDER THE SUPERVISION OF) AND AFTER RECORDING SHOULD BE RETURNED TO: NAME: ADDRESS: (SPACE RESERVED FOR CLERK OF COURT) Tax Folio No.: [a portion of] SPECIAL WARRANTY DEED THIS SPECIAL WARRANTY DEED is made and entered into as of the day of 20? by whose mailing address is ("Grantor"), to THE CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation, whose mailing address is 112 S. Osceola Avenue, Clearwater, Florida 33756, Attn: City Manager ("Grantee"). Wherever used herein, the terms "Grantor" and "Grantee" shall include all of the parties to this instrument and their successors and assigns. WITNESSETH: GRANTOR, for and in consideration of Ten and No/100 Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, has granted, bargained and sold, and by these presents does hereby grant, bargain and sell to Grantee and Grantee's successors and assigns forever, the following described land situate and being in Pinellas County, Florida (the "Property'), to wit: Parking Unit in SURF STYLE CONDOMINIUM, a Condominium, according to the Declaration of Condominium thereof, as recorded in Official Records Book Page , of the Public Records of Pinellas County, Florida (as amended and supplemented from time to time), together with an undivided interest in the common elements appurtenant thereto. TOGETHER WITH all the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining. THIS CONVEYANCE is subject to: (a) taxes and assessments for the year 20,,,_, and all subsequent years; (b) all laws, ordinances, regulations, restrictions, prohibitions MIA 180, 691, 006v7 2-8-10 • o and other requirements imposed by governmental authority, including, but not limited to, all applicable building, zoning, land use and environmental ordinances and regulations; (c) conditions, restrictions, limitations and easements of record, if any, but this reference shall not operate to reimpose same; and (d) Parking Covenant dated , 20 and recorded in Official Records Book , Page of the Public Records of Pinellas County, Florida. TO HAVE and to hold the same in fee simple forever. GRANTOR hereby covenants with Grantee that it is lawfully seized of the Property in fee simple, that it has good right and lawful authority to sell and convey the Property, that it hereby specially warrants the title to the Property and will defend the same against the lawful claims of all persons claiming by, through or under Grantor, but against no others. IN WITNESS WHEREOF, Grantor has hereunto set its hand and seal as of the day and year first above written. Signed, sealed and delivered in the presence of: Print Name: Print Name: STATE OF COUNTY OF )ss: [insert signature block for Grantor], a By: Name: Title: The foregoing instrument was acknowledged before me this day of 20 by , as of , a , on behalf of the bank. He is personally known to me or has produced as identification. My commission expires: Name: Notary Public, State of Florida Commission No. [Notarial Seal] MIA 180,691,006v72-8-10 0 6 Case # DVA2009-00004 ORIGINAL RECEIVED FJ LEHi, 12000 Sign Posting Acknowledgement PLANNING DEPARTMENT CITY OF CLEARWATER I hereby acknowledge receiving two notification signs to post on the subject property (one on S. Gulfview Boule and and one on Coronado Drive) that is undergoing a request for a Development Agreement and will post the provided signs on the subject property so that they are readable; from S Gulfview Boulevard and Coronado Drive a minimum of 10 days before the CDB Special Public Hearing. ?« L, AzAN Print Name Public Hearing Date: CDB: 1-5-2010 12/15 4204 Date Posting Date - No Later Than: i ? nc nnnn CC: 1-14-2010 12-26-2009 • CITY OF CLEARWATER NOTICE OF INTENT TO CONSIDER A DEVELOPMENT AGREEMENT Public hearings will be conducted before the Community Development Board on Tuesday, December 15, 2009, beginning at 1:00 PM (or as soon thereafter as the matter may be heard), in City Council Chambers, Td floor of City Hall, 112 South Osceola Ave., Clearwater, Florida, to consider approving a Development Agreement between the City of Clearwater and L.O.M, Inc., as per Beach by Design and Community Development Code Section 4-606, for property located at 311 S. Gulfview Blvd (including 305, 309 and 315 S. Gulfview Boulevard and 320 Coronado Drive), Parcel Numbers: 07-29-15- 52380-000-0600 and 07-29-15-52380-000-1100. Assigned Planner: Wayne M. Wells, AICP, Planner III. (DVA2009-00004) The Development Agreement will allow Retail Sales and Services of 34,183 sq ft of floor area, a Restaurant of 6,887 sq ft of floor area and a Parking Garage of 349 parking spaces (including 48 accessory parking spaces for the Retail Sales and Services and Restaurant uses and 301 public parking spaces) (0.94 Floor Area Ratio) at a height of 59.5 ft (to highest parking deck) A public hearing will also be held to consider a Flexible Development request for the following related case: FLD2009-09032. Interested parties may appear to be heard or file written notice of approval or objections with the Planning and Development Department or the City Clerk prior to or during the public hearing. Any person who decides to appeal any decision made by the Council, with respect to any matter considered at such hearings, will need a record of the proceedings and, for such purpose, may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based per Florida Statute 286.0105. Additional information, including the Development Agreement, is available in the Planning and Development Department at the Municipal Services Building, 100 S. Myrtle Avenue, Clearwater, Florida. Please contact the assigned planner at 562-4567. Michael Delk Planning and Development Director Cynthia E. Goudeau, MMC City Clerk City of Clearwater P.O. Box 4748, Clearwater, FL 33758-4748 A COPY OF THIS AD IN LARGE PRINT IS AVAILABLE IN THE CITY CLERK DEPARTMENT. ANY PERSON WITH A DISABILITY REQUIRING REASONABLE ACCOMMODATIONS IN ORDER TO PARTICIPATE IN THIS MEETING SHOULD CALL THE CITY CLERK DEPARTMENT WITH THEIR REQUEST AT' (727) 562-4090. To learn more about presenting to Clearwater boards and City Council, go to http://clearwater.granicus.comNiewPubiisher.phP?view id=11 and click on "Resident Engagement Video." You can also check the informational video out from any Clearwater public library. Ad: 12/03/09 BASKIN, H H EST OWENS, W D EST 516 N FT HARRISON AVE CLEARWATER FL 33755 - 3905 CHRISTMAN, KENNETH R SR CHRISTMAN, LINDA J 225 CORONADO DR CLEARWATER FL 33767 - 2431 DIDOMIZIO INVESTMENTS INC 648 POINSETTIA AVE N CLEARWATER FL 33767 - 1513 HARVEY, MARY C REVOCABLE TRUST 2 SEASIDE LN BELLEAIR FL 33756 - KOZIK, ROBERT KOZIK, GIOVANNI 317 CORONADO DR CLEARWATER FL 33767 - 2433 LUCCA DEVELOPMENT LLC 16132 ARMISTEAD ODESSA FL 33556 - MAZUR, JAN MAZUR, JANINA 216 HAMDEN DR CLEARWATER FL 33767 - 2446 PRESTON, MICHAEL G THE 419 EASTSHORE DR CLEARWATER FL 33767 - 2028 RUDMAN, MIRKO RUDMAN,ANKA 217 CORONADO DR CLEARWATER FL 33767 - 2431 BOLDOG, DOROTHY C THE M & J TRUST PO BOX 8589 CLEARWATER FL 33758 - 8589 CRYSTAL BEACH CAPITAL LLC 101 E KENNEDY BLVD STE 2125 TAMPA FL 33602 - 5189 FLAMINGO BAY CONDO DEVELOPERS 300 HAMDEN DR CLEARWATER FL 33767 BOLDOG, DOROTHY PO BOX 8589 CLEARWATER FL 33758 - 8589 CZAICKI, EDWARD CZAICKI, BOZENA 332 HAMDEN DR CLEARWATER FL 33767 - 2448 GIADLA, WERONIKA GIADLA, ALOJZY 355 S GULFVIEW BLVD -2448 CLEARWATER FL 33767 - 2445 K & P CLEARWATER ESTATE II LLC 5600 MARINER ST STE 227 TAMPA FL 33609 - 3417 LOMINC 4100 N 28TH TER HOLLYWOOD FL 33020 - 1116 M 3 B DEVELOPMENT LLC 1951 BRIGHTWATERS BLVD NE ST PETERSBURG FL 33704 - PANOS, STEVE S PANGS, FILITSA 109 DEVON DR CLEARWATER FL 33767 - 2439 QUINN, ANN E 225 HAMDEN DR CLEARWATER FL 33767 - 2497 SZLECHTA, WLODZIMIERZ KUNOWSKA, EWA 333 CORONADO DR CLEARWATER FL 33767 - 2433 KALLAS, DORA KALLAS, GEORGE 3405 GULF BLVD BELLEAIR BCH FL 33786 - 3644 LITTLE, DAVID R 1734 CASEY JONES CT CLEARWATER FL 33765 - 1701 MALKE, ROBERT E MALKE, TERESA L PO BOX 2124 LARGO FL 33779 - 2124 PAPPAS, ANASTASIA PAPPAS, TOM 115 DEVON DR CLEARWATER FL 33767 - 2439 R T V PROPERTIES INC 331 CORONADO DR CLEARWATER FL 33767 - 2433 TAS, JERRY TAS, TERESA 342 HAMDEN DR CLEARWATER FL 33767 - 2451 TROPICANA RESORT LAND TRUST CLEARWATER BEACH CLEARWATER NEIGHBORHOODS 300 HAMDEN DR ASSOCIATION COALITION CLEARWATER FL 33767 - 2448 JAY KEYES PRESIDENT SHELLEY KUROGHLIAN, PRES 100 DEVON DRIVE 1821 SPRINGWOOD CIR S CLEARWATER, FL 33767 CLEAWATER, FL 33763 0 FLD2009-09032/DVA2009-00004: 33 0 0 a CLEARWATER, CITY OF CLEARWATER, CITY OF P O BOX 4748 P O BOX 4748 CLEARWATER FL 33758 - 4748 CLEARWATER FL 33758 - 4748 K & P CLEARWATER ESTATE LLC 5600 MARINER ST # 227 TAMPA FL 33609 - 3417 CRYSTAL BEACH CAPITAL LLC 101 E KENNEDY BLVD STE 2125 TAMPA FL 33602 - 5189 LOMINC 4100 N 28TH TERR HOLLYWOOD FL 33020 - 1116 BOLDOG, DOROTHY C THE M&JTRUST PO BOX 8589 CLEARWATER FL 33758 - 8589 GIADLA, WERONIKA GIADLA, ALOJZY 355 S GULFVIEW BLVD CLEARWATER FL 33767 - 2445 LOMINC 4100 N 28TH TER HOLLYWOOD FL 33020 - 1116 PAPPAS, ANASTASIA PAPPAS, TOM 115 DEVON DR CLEARWATER FL 33767 - 2439 BASKIN, H H EST OWENS, W D EST 516 N FT HARRISON AVE CLEARWATER FL 33755 - 3905 MAZUR, JAN MAZUR, JANINA 216 HAMDEN DR CLEARWATER FL 33767 - 2446 LUCCA DEVELOPMENT LLC 9011 S NATOMA AVE OAK LAWN IL 60453 - 1466 BOLDOG,DOROTHY PO BOX 8589 CLEARWATER FL 33758 - 8589 CRYSTAL BEACH CAPITAL LLC 101 E KENNEDY BLVD STE 2125 TAMPA FL 33602 - 5189 LUCCA DEVELOPMENT LLC 9011 S NATOMA AVE OAK LAWN IL 60453 - 1466 PANOS, STEVE S PANGS, FILITSA 109 DEVON DR CLEARWATER FL 33767 - 2439 M 3 B DEVELOPMENT LLC 1951 BRIGHTWATERS BLVD NE ST PETERSBURG FL 33704 - RUDMAN, MIRKO RUDMAN, ANKA 217 CORONADO DR CLEARWATER FL 33767 - 2431 17d A? cny CC)00'-( K & P CLEARWATER ESTATE LLC 5600 MARINER ST # 227 TAMPA FL 33609 - 3417 CRYSTAL BEACH CAPITAL LLC 101 E KENNEDY BLVD STE 2125 TAMPA FL 33602 - 5189 LITTLE, DAVID R 1734 CASEY JONES CT CLEARWATER FL 33765 - 1701 PRESTON, MICHAEL G THE 419 EASTSHORE DR CLEARWATER FL 33767 - 2028 CLEARWATER, CITY OF PO BOX 4748 CLEARWATER FL 33758 - 4748 MALKE, ROBERT E MALKE, TERESA L PO BOX 2124 LARGO FL 33779 - 2124 QUINN, ANN E 225 HAMDEN DR CLEARWATER FL 33767 - 2497 DIDOMIZIO INVESTMENTS INC 648 POINSETTIA AVE N CLEARWATER FL 33767 - 1513 K & P CLEARWATER ESTATE II LLC 5600 MARINER ST STE 227 TAMPA FL 33609 - 3417 CHRISTMAN, KENNETH R SR TROPICANA RESORT LAND TROPICANA RESORT LAND CHRISTMAN, LINDA J TRUST TRUST 225 CORONADO DR 300 HAMDEN DR 300 HAMDEN DR CLEARWATER FL 33767 - 2431 CLEARWATER FL 33767 - 2448 CLEARWATER FL 33767 - 2448 KOZIK, ROBERT KOZIK, GIOVANNI 317 CORONADO DR CLEARWATER FL 33767 - 2433 R T V PROPERTIES INC 331 CORONADO DR CLEARWATER FL 33767 - 2433 LUCCA DEVELOPMENT LLC 9011 S NATOMA AVE OAK LAWN IL 60453 - 1466 TROPICANA RESORT LAND TRUST 300 HAMDEN DR CLEARWATER FL 33767 - 2448 CZAICKI, EDWARD CZAICKI, BOZENA 332 HAMDEN DR CLEARWATER FL 33767 - 2448 LUCCA DEVELOPMENT LLC 9011 S NATOMA AVE OAK LAWN IL 60453 - 1466 a HARVEY, MARY C REVOCABLE TRUST 2 SEASIDE LN BELLEAIR FL 33756 - SZLECHTA, WLODZIMIERZ KUNOWSKA, EWA 333 CORONADO DR CLEARWATER FL 33767 - 2433 LUCCA DEVELOPMENT LLC 9011 S NATOMA AVE OAK LAWN IL 60453 - 1466 TROPICANA RESORT LAND TRUST 300 HAMDEN DR CLEARWATER FL 33767 - 2448 TAS, JERRY TAS,TERESA 342 HAMDEN DR CLEARWATER FL 33767 - 2451 PALMTOPPER CONDO ASSN INC 110 BRIGHTWATER DR # 4 CLEARWATER FL 33767 - 2401 E KALLAS, DORA KALLAS, GEORGE 3405 GULF BLVD BELLEAIR BCH FL 33786 - 3644 TAS, JERRY TAS,TERESA 342 HAMDEN DR CLEARWATER FL 33767 - 2451 LUCCA DEVELOPMENT LLC 9011 S NATOMA AVE OAK LAWN IL 60453 - 1466 FLAMINGO BAY CONDO DEVELOPERS 300 HAMDEN DR CLEARWATER FL 33767 - 2448 LUCCA DEVELOPMENT LLC 16132 ARMISTEAD ODESSA FL 33556 - WAZIO, EUGENIUSZ F WAZIO, IRENA 110 BRIGHTWATER DR #4 CLEARWATER FL 33767 - 2401 WAZIO, EUGENIUSZ F WAZIO, EUGENIUSZ F WAZIO, EUGENIUSZ F WAZIO, IRENA WAZIO, IRENA WAZIO, IRENA 110 BRIGHTWATER DR #4 110 BRIGHTWATER DR #4 110 BRIGHTWATER DR # 4 CLEARWATER FL 33767 - 2401 CLEARWATER FL 33767 - 2401 CLEARWATER FL 33767 - 2401