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COVENANTS RESTRICTIONS GRANT OF EASEMENTS AND MODIFICATION OF CLEARWATER COMMONS SHOPPNG CENTER OPERATION AND RECIPROCAL EASEMENT AGREEMENT SPT 3-2002 3: 58fM 02-328448 BK 12198 PO 381 PIN e: L Illi lI~~" 11"1 11111 1"11 Ill" llU IlII 1111 This instrument prepared by: Joan M. Budd, Esq. Senior Couns_el Target Law Department 1000 Nicollet Mall TPS-3155 Minneapolis, MN 55403 (612) 696-3475 After recording is to be returned to/, Mark G.Lawson Bryant, Miller and Olive, P .A. 201 South Monroe Street, Suite 500 Tallahassee, Florida 32301 ~850) 222-8611 ~~ \~ \0,0 ,.:\CCT i1 :~;l'~G ~.!.rr ::;:\AW KARLEEN F. DE BLAKER, ClERK OF COURT PlNEl.L~'fM~~OPY --------------------------------------- 5C190499 09-03-2002 15:59:29 JTF ,51 EAS-HOM[ DEPOT 000805 RECORDING 022 PAGES DOC STAMP - DR219 OFFICIAL COPIES CERTIFCATION 1 3 5 6 $100.50 $27,475.00 $22.00 $1.00 TOTAL: CHECK AMT.TENDERED: CHANGE : BY 11- DEPUTY CLERK $27,598.50 , $2'7,598.50 $.00 '. ~~c:C ~CSfJ-0 COVENANTS, RESTRICTIONS, GRANT OF EASEMENTS AND DS DR219 ' ~.~ MODIFICATION OF CLEARWATER COMMONS DS _ SHOPPING CENTER OPERATION AND RECIPROCAL !NT ;:EES ==~~~~ EASEMENT AGREEMENT MTF ~~v d...~1il ~ THIS COVENANTS, GRANT OF EASEMENTS AND MODIFICATION OF TOTA~~l~-CLEARWATER COMMONS SHOPPING CENTER OPERATION AND RECIPROCAL EASEMENT AGREEMENT (hereinafter referred to as this "Modification Agreement") is -Ul:J made and entered into by and between Home Depot U.S.A., Inc., a Delaware corporation (hereinafter "Home Depot"), Target Corporation, a Minnesota corporation, formerly known as Dayton Hudson Corporation (hereinafter "Target"), and Clearwater Collection Associates, Ltd., a Florida limited partnership (hereinafter "Sembler"); and same is joined into and executed by the City of Clearwater, Florida (hereinafter the "City"), and The Phillies, a Pennsylvania limited partnership ("The Phillies") solely for the purposes provided for in Section 8 hereof. RECITALS A. Home Depot, Target and Sembler (hereinafter singularly referred to as "Owner" and collectively referred to as the "Owners") collectively own all lands subject to that certain Operation and Reciprocal Easement Agreement recorded in Official Records Book 6440, at Page 2013 which has been previously modified by (1) that certain Ratification of Operation and Reciprocal Easement Agreement recorded in Official Records Book 6735, page 217, (2) that certain Third Amendment to an Operation and Reciprocal Easement Agreement recorded in Official Records Book 6921, at Page 129, (3) that certain Amendment to an Operation and Reciprocal Easement Agreement recorded in Official Records Book 7561, at Page 2125, (4) that certain Fourth Amendment to an Operation and Reciprocal Easement Agreement recorded in Official Records Book 7541, at Page 849 which was re-recorded in Official Records Book 7561, at Page 2125, and (5) that certain Fifth Amendment to Operation and Reciprocal Easement Agreement recorded in Official Records Book 9664, at Page 451, all in the Public Records of PinellasCounty, Florida (collectively the "REA"). Each Owner represents and affirms that it 8/27/02 PINELLRS COUNTY rLA. Orr,REC,8K 12188 PO ~82 owns its respective tract as identified in the REA and will respectively secure the joinder or subordination hereto of any mortgagee holding a mortgage on such Owner's respective tract. B. The City has entered into a purchase and sale agreement with Home Depot to purchase all lands and interests owned by Home Depot now subject to the REA for the purpose of (1) constructing on the lands owned by Home Depot and certain adjoining lands, which are not subject to the REA, a community sports complex (the "Community Sports Complex") to include without limitation (a) an open air, natural grass ballpark meeting first class Major League Baseball spring training standards, with seating for approximately 7,000 persons (including premium seating and group areas) and an outfield berm seating area accommodating, approximately 1,000 fans for on-grass seating and including clubhouse faciiities, batting tunnels, team office space for The Phillies, locker rooms and other elell.!ents of such ballpark and stadium, (b) one practice infield, (c) on-site parking areas, and (d) other facilities such as a restaurant/sports bar, a souvenir/sporting items store, a health/fitness facility, and other facilities of like or similar use, and (2) inducing The Phillies (together with its successors and or assigns, including without limitation any successor user of the Community Sports Complex), the owner and holder of the Major League Baseball franchise for the Philadelphia area, to enter into a long term agreement with the City for the financing, development, construction, completion, use and operation ofthe Community Sports Complex. C. The Owners and the City are mutually desirous of releasing and waiving any restrictive covenant or condition or other restrictions or provisions set forth in the REA which would prohibit, prevent, limit, impinge, impair or interfere with, or otherwise adversely affect, the financing, development, construction, completion, use and operation of the Community sports Complex and otherwise modifying and amending the REA in order to facilitate the financing; development, construction, completion, use and operation of the Community Sports Complex. AGREEMENT NOW, THEREFORE, in consideration of the premises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. RECITALS INCORPORATED. The foregoing recitals are true and correct and are incorporated by this reference for all purposes. 2. RELEASE OF HOME DEPOT TRACT FROM REA. (A) Upon the City acquiring title to all of the lands owned by Home Depot subject to, the REA (the "Home Depot Tract"), the Owners, for themselves, and their successors and/or assigns, including without limitation their respective successors in title, hereby waive and release any and all restrictive covenants or conditions or other provisions or limitations of any kind provided in, or imposed by, the REA, which would prohibit, prevent, limit, impinge, impair, or interfere with, or otherwise adversely affect, the financing, development, construction, completion, use or operation of all or any portion' of the Community Sports Complex, its 2 PINELLR5 COUNTY rLR. Qrr.REC,8K 1218S PO 393 elements or appurtenant facilities, including without limitation signage, on the Home Depot Tract. Additionally, to the extent that any option to purchase or lease or any right of first refusal exists with respect to all or any portion of the Home Depot Tract, under the REA or otherwise in favor of either Sembler or Target which relates to the Home Depot Tract, such option or right is hereby released and the Home Depot Tract and Home Depot and any successor owner of the Home Depot Tract shall be forever discharged therefrom. (B) Upon the City acquiring title to the Home Depot Tract, the Home Depot Tract shall be released in all respects from the REA and only this Modification Agreement shall remain effective as to the Home Depot Tract. The lands owned by Target and Sembler subject to the REA (the "Remaining REA Tracts") shall continue to be subject to the REA and this Modification Agreement. " 3. CONSENT TO COMMUNITY SPORTS COMPLEX; RESTRICTIONS. (A) The Owners hereby acknowledge and consent to the City's acquisition of the Home Depot Tract and, to the development and construction of the Community Sports Complex in part thereon and to the use and occupancy of the Community Sports Complex by the City and The Phillies, as provided for in (and pursuant to and in compliance with the terms and provisions of) that certain "Agreement for Development of Community Sports Complex", by and between the City and The Phillies, dated March 1,2001 and that certain "Sports Facility Use Agreement", also by and between the City and The Phillies,dated December 31, 2000, as both agreements have been amended by that certain Community Sports Complex Amendatory Agreement dated as of April 1, 2002 (collectively as amended, the "Sports Complex Agreements"), as the same may be amended from time to time. For so long as the Sports Complex Agreements remain in effect, no future amendment thereto shall substantially or materially change the contemplated uses of the Home Depot Tract in oonjunction with the Community Sports Complex. For purposes of this Modification Agreement, the Sports Complex Agreements shall be deemed to be in effect on the date hereof, regardless of the specific effective dates of the Sports Complex Agreements. (B) In consideration for the foregoing consent and approval, the parties hereto agree and acknowledge that the use of the Home Depot Tract and Remaining REA Tracts shall continue to be subject to the following restrictions: (1) No use or service shall be permitted which is inconsistent with the operation of a first-class retail shopping center or the Community Sports Complex as contemplated by the Sports Complex Agreements. Without limiting the generality of the foregoing, the following uses or services shall not be consistent with the concept of a first-class retail shopping center and shall be prohibited: (a) Any use which emits an obnoxious odor, noise, or sound (exclusive of odor resulting from food preparation, or noise or sound emanating from the Community Sports Complex) which can be heard or smelled outside of any building; 3 PIN~LLRS COUNTY rLR. Orr,R~C.BK 12186 PO 394 (b) Any operation 'primarily used as a warehouse operation and any assembling, manufacturing, distilling, refining, smelting, agricultural, or mining operation; (c) Any "second hand" store or consolidation or salvage store (exclusive of baseball trading cards or baseball memorabilia); (d) Any mobile home park, trailer court, labor camp, junkyard, or stockyard (except that this provision shall not prohibit the temporary use of construction trailers or the assemblage or use of construction related, materials duriJlg periods of permitted construction, reconstruction or maintenance); '. (e) Any dumping, disposing, incineration or reduction of garbage (exclusive of garbage compactors servicing the Community Sports Complex or located in the rear of any building located on the Remaining REA Tracts); (f) Any fire sale, bankruptcy sale or going out of business sale (unless pursuant to a court order or license issued by the sheriff of Pinellas County), or auction house operation; (g) Any central laundry, dry-cleaning plant or laundromat; provided, however, this prohibition shall not be applicable to a plat of less than 2,500 square feet of floor area nor shall such prohibition apply to the operation of a laundry facility on the Home Depot Tract which only services the Community Sports Complex and not the public in general; (h) Any automobile, truck, trailer or r.v. sales, leasing, display or repairs; (i) Any living quarters., sleeping apartments or lodging rooms, except for overnight facilities located within and used for Community Sports Complex related purposes; CD Any veterinary hospital or animal ralSlng facilities (except that this prohibition shall not prohibit pet shops); (k) Any mortuary; (1) Any adult book store or other establishment selling or exhibiting pornographic materials; (m) Any flea market, pool or billiard hall or car wash; (n) Any establishment selling or exhibiting merchandise or paraphernalia related to the use or production of illicit drugs such as a "roach clip", "water pipe", 4 PIN~LLRS COUNTY rLA. Orr,R~C,8K l~lSS PO ~95 "bong", "toke", "coke spoon", "cigarette papers", "hypodermic syringe". or any books, magazines, newspapers or video tapes which would be obscene under the prevailing law; .(0) Any off-track betting parlor. (2) Each Owner shall use reasonable efforts to cause the employees or the occupants of its property to park their vehicles only within areas designated by each respective, Owner for employee parking on their respective tracts. The City and the Phillies shall use commercially reasonable efforts to prevent employees, agents and invitees of the City or The Phillies, including without limitation those persons attending events at the Community Sports, Complex and those persons otherwise employed at the Community Sports Complex or the Home Depot Tract (collectively, the "Sports Complex Parties") from p,~king in any areas of the Remaining REA Tracts during such events; provided, however, the foregoing parking restriction shall not be construed to prohibit any bonafide patron of any commercial facility located on the Remaining REA Tracts from parking in the parking areas of the Remaining REA Tracts for the purposes of conducting business in such commercial facilities. (3) All improvements, repairs, construction, reconstruction and/or maintenance on the Remaining REA Tracts shall be undertaken and completed in a manner consistent with the REA. All improvements, repairs, construction, reconstruction and/or maintenance on the portion of the Community Sports Complex located on the Home Depot Tract shall be undertaken and completed in a manner consistent with the Sports Complex Agreements. (C) No party hereto shall cause any lien by any materialman, mechanic, labor or vendor to be placed upon any other parties' land or interest in the Home Depot Tract or the Remaining REA Tracts. It shall be the affirmative responsibility of the offending or responsible party to take commercially reasonable action to immediately pay, release, bond, or otherwise remove any such lien. 4. INGRESS AND EGRESS. (A) The Owners of the Remaining REA Tracts hereby grant to Home Depot, and any successor owner of the Home Depot Tract, including without limitation the City, for the use of such owners and the Sports Complex Parties in common with others entitled to use the same, a non-exclusive perpetual easement (i) for passage of vehicles (but not for parking purposes) over and across the internal driveway areas within the Common Area (as such term is defined in the REA, prior to giving effect to this Modification Agreement, and is hereinafter used as so defined) of the Remaining REA Tracts, and (ii) for the passage and accommodation of pedestrians over and across the driveway and sidewalk areas within the Remaining REA Tracts, as such driveways and sidewalks may be from time to time be reconfigured and maintained to support such uses. The easements granted in Section 4(A)(i) and (ii) above are hereinafter referred to as the "Community Sports Complex Easement". For the limited purposes stated in the first sentence of this Subsection 4(A), the grant of the Community Sports Complex Easement shall include the right to ingress and egress access to the Community Sports Complex Easement from the currently existing access points hereinafter collectively referred to as the "Access Points" and singularly as an "Access Point") from Coachman Road, Drew Street and U.S. 5 PINELLA$ COUNTY rLA. Orr.~EC.BK 12196 PO 396 Highway 19 (the "Public Streets") as the Access Points may from time to time be constructed or maintained. In consideration of the granting of the Community Sports Complex Easement, the City and The Phillies agree that (x) the Community Sports Complex will be designed, constructed and operated with the main public entrance and primary public access point to the Community Sports Complex on Coachman Road and (y) the only Sports Complex Parties entitled to use the Drew Street Access Point will be those parking in the Parking Lot (as defined in Section 6(A) hereof). The foregoing grant of the Community Sports Complex Easement and right to use the Access Points shall not be construed to grant any right to use the Remaining REA Tracts for parking purposes and shall be expressly deemed to prohibit any such parking by the Sports Complex Parties. Notwithstanding anything to the contrary contained herein, neither the City nor The Phillies shall direct vehicular traffic (other than vehicular traffic parking in the Parking Lot or having business in the Community Sports Complex, i~cluding without limitation on the Home Depot Tract) over and across the Community Sports Complex Easement or any other parking and driveway areas of the Remaining REA Tracts during events at the Community Sports Complex or otherwise. (B) The Owners of the Remaining REA Tracts agree not to materially or substantially modify the use or configuration of the Community Sports Complex Easement in a manner that removes or prohibits reasonable pedestrian or vehicular access over the Community Sports Complex Easement from the Access Points for the Sports Complex Parties who are entitled to use the same as provided in Section 4(A) hereof. Any such modification or re-configuration shall provide for paved vehicular access, at least thirty (30) feet in width, from the Home Depot Tract to each of the Public Streets. Each respective Owner of the Remaining REA Tracts effecting redevelopment or other material reconfiguration of the Community Sports Complex Easement improvements shall pay all costs and expenses with respect thereto, including the provision of alternative: ingress and egress as aforementioned to each of the Public Streets, and shall cause all work in connection therewith (including general clean-up and proper surface and or subsurface restoration) to be completed as quickly as possible, to be effected other than during the months of February and March (except in the case of emergencies) and to be accomplished in a manner so as to minimize interference with the use of the Home Depot Tract and the Community Sports Complex by the City and The Phillies. Except in the case of emergencies, prior to commencing any material or substantial modification of the use or configuration of the Community Sports Complex Easement or the Access Points, the Owner(s) of the Remaining REA Tracts undertaking such work shall first provide to the City and The Phillies thirty (30) days advance written notice which reasonably describes the modification of the use or reconfiguration of the Community Sports Complex Easement or the Access Points, as applicable. Notwithstanding anything to the contrary contained in this Section 4(B), neither the City nor The Phillies (nor any other Owner) shall materially change the functional design of the existing entry to the Common Area located on the Remaining REA Tracts from the U.S. 19 Access Point without the written consent of all Owners. The functional design of the existing entry to the Common Area from the U.S. 19 Access Point requires vehicular traffic to either turn right into the Home Depot Tract or turn left into the Remaining REA Tracts after crossing the access bridge. 6 PIN~LLRS COUNTY rLR, Orr.R~C.8K 12188 PG 387 5. UTILITIES. (A) Each Owner hereby grants and conveys to each other Owner non-exclusive perpetual eas'ements in, to, over, under, along and across those portions of the Common Area, including without limitation those on the Home Depot Tract, as are necessary for the grantee Owner to continue to use, maintain, repair and replace all lines or systems for utilities servicing the grantee Owner's land, including but not limited to sanitary sewers, storm drains, drainage detention, retention and treatment ponds, water (fire and domestic), gas, electrical, telephone and communication lines; provided, however, that (1) such usage shall not exceed the existing capacity, thereof and (2) the grantee Owner effecting any repair or replacement (or permitted expansion in order to increase capacity) thereof shall pay all costs and expenses (including but not limited to the costs of any permits) with respect thereto a~d shall cause all work in connection therewith (including general clean-up and proper surface and or subsurface restoration to at least the quality and standard that existed prior to such work) to be completed as quickly as possible and in a manner so as to minimize interference with the use of said Common Area by the grantor Owners. Specifically, but without limitation, the reconfiguration of the Home Depot Tract and its incorporation into the Community Sports Complex shall not impact the existing drainage in a manner that would reduce the outfall available to the Remaining REA Tracts below capacity levels that such lands are currently utilizing, without the prior written consent of the Owners of the Remaining REA Tracts. The City and The Phillies will construct and install. separate sanitary sewer lines to provide service to the Community Sports Complex. However, the City and The Phillies shall be entitled to use the existing storm water retention facilities on the Remaining REA Tracts, provided however, that if the capacity of such retention facilities needs to be increased to allow such additional use, the City and The Phillies shall bear the cost of such expansion. (B) Except in the case of existing storm drains, drainage, detention, retention and treatment ponds and water lines (for fire purposes only), the City and The Phillies shall use commercially reasonable efforts to design and construct the Community Sports Complex in a manner that any existing, additional or replacement utilities are, to the extent practicable, segregated from and operate independently of the Common Area on the Remaining REA Tracts and any utility lines, services and systems located in the Common Area on the Reaming REA Tracts (or off-site from the Shopping Center, as that term is defined in the REA, and necessary for the operation of the Common Area on the Remaining REA Tracts or any of the improvements on the Remaining REA Tracts). All parking area lighting, electric, and water and gas service shall be separately metered. Except as aforesaid, all costs associated with relocating or reconfiguring utilities and common improvements necessary to avoid common expenditure, such as power and water, shall be borne by the City and or The Phillies. Subject to subsection (C) below, the City and The Phillies are hereby authorized to relocate or reconfigure, and shall bear the expense of relocating and reconfiguring, any utility lines or systems on the Home Depot Tract servicing the Home Depot Tract or the Remaining REA Tracts to the extent necessitated by construction and use of the Community Sports Complex. (C) All utilities shall be underground unless required to be above ground by the utility providing such service. Prior to exercising the right granted in this Section 5, the grantee Owner shall first provide the grantor Owner with a written statement describing the need for such repair 7 PIN~LLAS COUNTY rLA. Orr,R~C.BK 12198 PO 39B or modification to the existing utility, shall identify the proposed location of the work to be done, and shall furnish a certificate of insurance showing that its contractor has obtained insurance coverage as required in Section 10 hereof. To the extent that any utility lines or systems located on the Remaining REA Tracts need to be relocated or upgraded in cOIUlection with the construction and use of the Community Sports Complex, the City and The Phillies shall provide the Owners of the Remaining REA Tracts with at least two (2) weeks' written notice of same and the grantor Owner shall have the right to approve the location of any such relocated line or system; provided, however, such approval shall not be unreasonably withheld or delayed so long as such relocation: (i) shall not interfere with or diminish the utility services to the grantor Owner (except as may be temporarily necessary during non-business hours to complete the relocation of the line or system); (ii) shall not reduce or unreasonably impair the usefulness or function of such ' utility; (iii) shall be completed using materials and design standard~ that equal or exceed those originally used; (iv) if required by the applicable utility company or governmental authorities, shall have been approved by the utility company and the appropriate governmental or quasi- governmental authorities having jurisdiction thereover; and (v) shall not unreasonably interfere with the grantor Owner's business operations. (D) Any maintenance and repair to utility lines or systems on a grantor Owner's Tract shall be performed only after two (2) weeks' notice to said grantor Owner (except in an emergency the work may be initiated with reasonable notice). All maintenance and repairs shall be done and shall othetwise be performed in such a manner as to cause as little disturbance in the use of grantor Owner's land as is practicable under the circumstances and (i) shall not reduce or unreasonably impair the usefulness or function of such utility; (ii) shall be completed using materials and design standards that equal or exceed those originally used; (iii) if required by the applicable utility company or governmental authorities, shall have been approved by the utility company and the appropriate governmental or quasi-governmental authorities having jurisdiction thereover; and (iv) shall not unreasonably interfere with the grantor Owner's business operations. Each grantee Owner agrees to cooperate with the grantor Owner so that such repairs to the extent possible will not be made during grantor Owner's business hours, to diligently complete such work as quickly as possible, and to promptly clean the area and restore the affected portion of the Common Area to a condition equal to or better than the condition which existed prior to the commencement of such work. Except during the initial construction of the Community Sports Complex, scheduled maintenance, repair or reconstruction of utility lines or systems shall not occur during November, December, February or March unless agreed to in writing by all Owners. (E) The easements referred to herein are perpetual and shall survive the termination of this Modification Agreement provided, however, that if after the termination of this Modification Agreement, any such perpetual easement is not used by the grantee Owner for two (2) consecutive years, then at the option of the grantor Owner such easement shall terminate and expire as to such grantee Owner not so using the easement, provided that prior to any such termination, the grantor Owner shall give thirty (30) days notice to the grantee Owner, of such termination, and the grantee Owner shall have the right, within such thirty (30) day period, to give notice to the grantor Owner of its election to continue the use of such easement, in which event such easement shall not terminate. 8 PINELLRS COUNTY rLR. Orr.REC,8K 12198 PG 399 (F) For purposes of this Section 5, the tenn "Owner" shall be deemed to include the City, as successor in interest to Home Depot with respect to the Home Depot Tract. 6. PARKING; USE AND MAINTENANCE OF PUBLIC AREAS. (A) The City and The Phillies shall design and use that portion of the Home Depot Tract that is south of the southern face of the existing building (former Home Depot store) now located thereon only for parking, access and egress, utilities and signage and will locate no improvements thereon other than improvements relating to the permitted uses listed in this sentence. Such design shall segregate parking on the Home Depot Tract by using landscaping, benning, curbing, or other vehicular barriers in the manner and locations shown on the drawing attached hereto as Exhibit A (the "Parking Site Plan"). The area of ~he Home Depot Tract south of the southern face of the existing building is hereinafter referred to as the "Parking Lot". The City and The Phillies agree, in good faith, to consult with the Owners of the Remaining REA Tracts during the design phase of the Community Sports Complex as it relates to the Parking Lot. All final site plan and design decisions will be made by the City or The Phillies; except that there shall be no material or substantial change to the Parking Lot as shown on the Parking Site Plan, without the prior written consent of the Owners of the Remaining REA Tracts, such consent not to be unreasonably withheld or delayed. (B) The City and The Phillies, during the respective events at the Commuuity Sports Complex and preparation for or clean-up after such events, shall use commercially reasonable efforts to prevent persons attending such events from parking on the Remaining REA Tracts or using any ingress and egress from Drew Street for vehicular access, except for those parking in the Parking Lot. Such preventive efforts shall employ (by way of illustrations) the use of advance pedestrian and traffic control planning, directional signage, barricades and parking personnel, security, or police officers. If, after an event, the Owners of the Remaining REA Tracts have concerns or request additional consideration, the City and The Phillies agree in good faith to re.;. evaluate the parking and traffic control measures to be taken in the future and consider (but not be bound by) the concerns and suggestions made in good faith by the Owners of the Reaming REA Tracts. (C) The Owners, or any occupant, lessee, licensee or agent of the Owners, shall not charge for parking or otherwise operate any parking concession on the Remaining REA Tracts without prior written approval of the City and The Phillies. Such written approval shall be at the sole discretion of the City and The Phillies. (D) After each event at the Community Sports Complex, the City and or The Phillies shall, in a commercially reasonable fashion and in compliance with the standards of the Sports Complex Agreements, clean or sweep all sidewalks, drives and parking areas and remove papers, debris, filth and refuse therefrom on the Home Depot Tract, the Community Sports Complex Easement and, to the extent such refuse results from a Community Sports Complex event, the Common Area and Access Points to the extent necessary to return same to a clean and orderly condition. 9 PIN~LLRS COUNTY rLA, Orr,R~C,8K 12188 PO 400 7. DEMOLITION AND CONSTRUCTION. (A) The Phillies and the City shall effect the demolition of the existing Home Depot building and -the construction of the Community Sports Complex on the Home Depot Tract, (including the Parking Lot) as well as any repair or restoration of utilities on the Remaining REA Tracts as otherwise provided herein, taking commercially reasonable precautions to minimize adverse business impact upon the Remaining REA Tracts. All general construction traffic to and from the Home Depot Tract shall be allowed to enter the Home Depot Tract from the Coachman Road Access Point along the northerly portion of the Remaining REA Tracts, and the U.S. Highway 19 Access Points only; provided, however, all concrete trucks shall enter the Home Depot Tract from the Coachman Road Access Point oniy. Construction traffic shall not unreasonably interfere with or unduly impede ingress, egress or a~cess by patrons visiting or vendors servicing the Remaining REA Tracts. . (B) The City and The Phillies respectively shall have an affirmative obligation to use commercially reasonable efforts to immediately repair or restore any portions of the Remaining REA Tracts, improvements or buildings located thereon, the Community Sports Complex Easement, and/or the Access Points used or available to use by the Home Depot Tract and REA Remaining Tracts which are damaged respectively by them or their contractors during demolition of the Home Depot building or construction of the Community Sports Complex, including the Parking Lot. (C) During demolition of the Home Depot building and construction of the Community Sports Complex (including the Parking Lot), the City and The Phillies shall fence, provide a visual screen (not less than five (5) feet above ground level), and otherwise secure the Home Depot Tract (including the Parking Lot) from the Remaining REA Tracts. Except in connection with the relocation, maintenance or repair of utilities as provided in Section 5, all construction activities and construction staging for such demolition and construction shall be contained on the Home Depot Tract or property other than the Remaining REA Tracts. Such demolition or construction shall not unreasonably or unduly impede any ingress or egress to the Remaining REA Tracts. (D) All demolition and construction contemplated under the terms of this Modification Agreement shall be done in compliance with all applicable laws, rules, regulations, orders and orders of all governmental or quasi-governmental authorities having jurisdiction over same. (E) After the initial demolition and construction on the Home Depot Tract as contemplated herein, there shall be no construction work thereon, including without limitation repairs or restoration during the months of November and December, except in the case of emergencIes. 8. JOINDER. (A) This Modification Agreement is executed and joined by the City and The Phillies solely to evidence joinder of the City and The Phillies and concurrence herewith, and their 10 PINELLRS COUNTY rLR Orr,REC.BK 12188 PO 401 acknowledgement that they respectively agree to be bound hereby upon the City's acquisition of the Home Depot Tract and upon entering into a long term agreement for the financing, development, construction and use of the Community Sports Complex. It is the intent of the parties hereto' that the City and The Phillies shall both be beneficiaries and obligors under this Modification Agreement. (B) Except for those that have accrued but been unperformed or unfulfilled, all rights ' or obligations of The Phillies arising from this Modification Agreement shall cease and terminate upon termination of both of the Sports Complex Agreements. The recording in the Official Records of Pinellas County, Florida, of a certificate executed by the City Manager or by the Chief Executive Officer of The Phillies to such effect shall be conclusive evidence of such termination; provided, however, no such termination hereunder sh~ll be effective against the Owners of the Remaining REA Tracts until each such Owner has actually received written notice of such termination from the City Manager or the Chief Executive Officer of The Phillies. 9. EFFECT; APPLICABLE LAW. (A) The provisions of this Modification Agreement shall run with, touch and concern the Home Depot Tract and the Remaining REA Tracts, and be binding upon the Owners (including the City) and The Phillies and their respective successors in interest. In particular, the easements granted hereunder shall be appurtenant to and for the benefit of each of the respective grantee's tracts and shall be binding and enforceable against and burden each grantor's traCt. (B) This Modification Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Florida. All parties have participated in the drafting and preparation of this Modification Agreement, and the provisions hereof shall not be construed for or against any party by reason of authorship. The parties to this Modification Agreement expressly consent to the jurisdiction of and agree to suit in any court of general jurisdiction in the State of Florida, whether state, local or federal, and further agree that venue shall lie in Pinellas County, Florida. 10. INSURANCE. (A) Prior to commencing any demolition or construction activities on the Home Depot Tract, the City and The Phillies (as applicable depending on which entity or entity's contractors are performing the work) shall obtain or require its contractor to obtain and thereafter maintain so long as such demolition or construction activity is occurring,( and continuing thereafter throughout the term of this Modification Agreement as to the Phillies and the City) at least the minimum insurance coverages set forth below: (1) As to The Phillies and all contractors (whether for The Phillies or the City): a. Workers' compensation and employer's liability insurance: (i) Statutory Worker's compensation insurance as required by any applicable law or regulation; and 11 PINELLAS COUNTY rLA. Orr,~EC,eK 12186 PG 402 (ii) Employer's liability insurance in an amount no less than $500,000 each accident for bodily injury, $500,000 policy limit for bodily injury by disease and $500,000 each employee for bodily injury by disease. b. Commercial General Liability insurance covering all operations by or on behalf of the contractor or The Phillies, as applicable, which shall include the following minimum limits of liability, with deductibles up to $100,000 per person and $200,000 per occurrence: (i) $5,000,000 each occurrence (for bodily injury and property damage). (ii) $5,000,000 for Personal Injury Liability. (iii) $5,000,000 aggregate for Products and Completed Operations; and (iv) $5,000,000 general aggregate applying separately to this project. c. Automobile liability insurance including coverage for owned, hired and non-owned automobiles. The limits of liability shall not be less than $5,000,000 comQined single limit each accident for bodily injury and property damage. The contractor shall require each of his subcontractors to include in their liability insurance policies coverage for automobile contractual liability. (II) As to the City: a. Statutory worker's compensation insurance as required by any applicable law or regulation, per occurrence with self insured retention of $500,000; b. Employer's liability insurance in the amounts set forth in Section lO(A)(I)a(ii); and c. Automobile liability insurance and Commercial General Liability insurance which shall include the following minimum limits of liability: (i) $100,000 per person/$200,000 per occurrence self-insured retention with the statutory limits per Section 768.28 Florida Statutes; and (ii) $5,000,000 per occurrence excess insurance (no aggregate applicable) with self-insured retention of$500,000. (B) During the demolition and construction on the Home Depot Tract all contractors shall be required to carry worker's compensation insurance and employer's liability insurance in the amounts set forth in Section 10(A)(I)(a) and builder's risk insurance on the project in 12 PINELLAS COUNTY rLA, Orr,~EC,eK 12196 PG 403 commercially reasonable amounts. After the demolition and construction on the Home Depot Tract (The Phillies and the City, as applicable) shall carry property insurance on all improvements on the Home Depot Tract and the Community Sports Complex as and to the extent required by the Sports Complex Agreements. Prior to commencement of demolition and construction, the Owners of the Remaining REA Tracts shall be provided certificates of insurance evidencing for the builder's risk coverage. (C) Any provision of this Modification Agreement to the contrary notwithstanding, while the City shall maintain insurance coverage and limits as provided for in the Modification Agreement, the parties hereto specifically agree that the City may provide the insurance coverage , required herein by self-insurance, by self-funding, by purchase, or any combination thereof in the sole discretion of the City. To the extent required by the terms of th!s Modification Agreement, insurance coverage and limits shall be evidenced by delivery to the appropriate parties as provided herein, letters of self-insurance or self-funding executed by the City's Risk Manager, or by certificates of insurance executed by either the agent for the insurers or by copies of policy declaration pages. Such letters, certificates, and policy declaration pages shall list coverage (including the amount of insurance per claim and per occurrence, any gap in coverage, and the amount of the excess insurance) and policy limits with expiration dates and major policy terms and endorsements. (D) All insurance policies obtained pursuant to this Section 10 shall be with companies legally authorized to do business in the State of Florida and which possess a minimum rating of A- or better and a minimum class vm financial size category (as listed at the time of issuance by A.M. Best Insurance Reports). Additionally, all policies required to be delivered pursuant to Section 10(A) shall name each Owner of the Remaining REA Tracts as an additional insured. Each party required to furnish insurance pursuant to the Section 10(A) shall furnish or cause to be furnished to each Owner of the Remaining REA Tracts a certificate of insurance (in form reasonably acceptable to the Owner) evidencing all such insurance policies. Renewal certificates for all insurance required under this Section 10 shall be delivered to each owner of the Remaining REA Tracts at least 10 days prior to the expiration of any policy of insurance and no such policy shall be cancelable or subject to reduction of coverage except after 30 days prior written notice to all parties hereto which affirmative obligations for notice shall be shown on the certificates to be delivered hereunder. Notwithstanding anything herein to the contrary, this p'aragraph D shall not apply to the City to the extent the City elects to self-insure or self- fund. (E) If a party required to provide insurance hereunder fails to obtain, keep in force or provide evidence of any of the insurance policies or self-insurance coverage required by this Section 10, each party entitled to the insurance may give written notice to the defaulting party, and the defaulting party shall have until the earlier of (i) ten business days after its receipt of such notice, or (ii) regardless of whether notice shall have been given, one day before the date required insurance will lapse, to cure default. If the default is not cured within such period, unless such failure is the result of an inability to obtain such insurance as a result of the unavailibility of such insurance coverages generally on commercially reasonable terms, then the parties entitled to the insurance shall (x) have the right to cure the default and be reimbursed by 13 PINtLLAS COUNTY rLA Orr.RtC,SK 12196 PG 404 the defaulting party with a commercially reasonable time after request, and (y) have all remedies available at low or in equity. 11. CONFLICTS/RATIFICATION. If there is any conflict between the provisions of the' REA and this Modification Agreement as same relate to the Home Depot Tract, the provisions of this Modification Agreement shall control; provided, however, that as between the Owners of the Remaining REA Tracts, if there is any conflict between the provisions of the REA and this Modification Agreement as same relate to the Remaining REA Tracts, and the respective Owners of such tracts rights and obligations with respect to same, the REA (except as expressly amended herein with respect to such tracts) shall control. Except as supplemented and amended by this Modification Agreement, the REA is ratified by the Owners of the Remaining REA Tracts and remains in full force and effect as to the Owners of. the Remaining REA Tracts and their respective tracts. Each of the parties hereto represents and warrants that it has the full capacity, right, power and authority to execute, deliver and perform this Modification Agreement, and all required actions, consents and approvals therefor have been fully taken and obtained. Furthermore, each of the parties hereto represents and warrants that upon full execution of this Modification Agreement, the REA as amended by this Modification Agreement shall be binding on all parties or entities with any interest in the Remaining REA Tracts, including the holder of any mortgagee's interest. 12. WAIVER. Failure of any party hereto to exercise any right given hereunder or to insist upon strict compliance with regard to any term, condition or covenant specified herein, shall not constitute a waiver of that party's right to exercise such right or to demand strict compliance with any term, condition or covenant under this Modification Agreement. 13; NOTICES. All notices, demands and requests (collectively, the "notice") required or permitted to be given under this Modification Agreement must be in writing and shall be deemed to have been given as of the date such notice is (i) delivered to the party intended, (ii) delivered to the then designated address of the party intended, (iii) rejected at the then designated address of the party intended, provided such notice was sent prepaid, or (iv) sent by nationally recognized overnight courier with delivery instructions for "next business day" service, or by United States certified mail, return receipt requested, postage prepaid and addressed to the then designated address of the party intended. The addresses of the parties shall be: Target: Target Cozporation Property Development Attn: Property Administration 1000 Nicollet Mall Minneapolis, MN 55403 Sembler: The Sembler Company Gregory S. Sembler 5858 Central Avenue S1. Petersburg, FL 33707-1728 14 With a copy to: Home Depot: With a copy to: Ruden McClosky 401 E. Jackson Street, Suite 2700 Tampa, FL 33602-5226 Attention: James B. Soble, Esquire Home Depot U.S.A., Inc. W. Keith Valentine 2455 Paces Ferry Road Atlanta, FL 30339 Home Depot U.S.A., Inc. Jeff A. Israel, Esquire 2455 Paces Ferry Road, NW Bldg. C, 20th Floor Atlanta, GA 30339 With a copy to: Alston & Bird LLP Daniel R. Weede One Atlantic Center 1201 West Peachtree Street Atlanta, GA 30309 The City: City ofClemwater, Florida 112 S. OsceolaAvenue 3rd Floor Clemwater, FL 33756 Attention: Pamela Akin, City Attorney With a copy to: City ofClemwater, Florida 1900 Grand Avenue Clemwater, FL 33756 Attention: Kevin Thmbar, Director, Parks & Recreation The Phillies: Veterans Stadium P.O. Box 7575 Philadelphia, P A 19101 Attention: David P. Montgomery, President and Attention: William Y. Webb, Vice President, General Counsel and Secretary . 15 PINELLAS COUNTY rLA, Orr,REC,8K 12185 P~ 405 '. PINELLAS COUNTY rLA, OFF,REC,BK 12196 PO 406 Upon at least ten (10) days prior written notice, each party shall have the right to change its address to any other address within the United States of America. 14. RESPONSE PERIODS. Unless provision hereunder is made for a specific time period, each response to a request for an approval or consent required to be considered pursuant to this Modification Agreement shall be given by the party to whom directed within thirty (30) days after receipt thereof. Each disapproval shall be in writing and, except as may be otherwise specifically provided herein, the reasons therefor shall be 'clearly stated. If a response is not given within the required time period, the requested party shall be deemed to have given its approval if the original notice stated in capitalized letters that failure to respond within the applicable time period will be deemed an approval. 15. COUNTERPARTS. This Modification Agreement may be executed in several counterparts, each of which may be deemed an original, and all of such counterparts together shall constitute one and the same Modification Agreement. 16. EFFECTIVE DATE. This Modification Agreement shall become effective, if at all, only upon the full execution and delivery thereof by Home Depot, Target, Sembler, and joinder herein by the City and The Phillies, and shall only be deemed delivered and thereafter recorded in conjunction with the City's purchase ofthe Home Depot Tract from Homepepot. 17. RECORDING. This Modification Agreement shall be recorded prior to any deed, assignment or other conveyance document from Home Depot to the City in connection with the sale ofthe Home Depot Tract (as hereinafter defined) to the City. 18. MODIFICATION; TIME. Except as expressly modified herein, the REA shall remain in full force and effect and is binding upon the parties hereto, their heirs, successors, legal representatives and assigns. Time is ofthe essence ofthis Agreement. 16 P1NELLA~ ~~~~~Yp~LA407 Off .REC.B SIGNATURE PAGE FOR COVENANTS, GRANT OF EASEMENTS AND MODIFICAT~ON OF CLEARWATER COMMONS SHOPPING CENTER OPERATION AND RECIPROCAL EASEMENT AGREEMENT IN WITNESS WHEREOF, the parties hereto have signed and sealed this Modification Agreement as of the date first above written. ~~" '- '1/ Witness: U ~-nt:d- VI (-lor; Ct u),-; J 14 />'7\:) Witness:--I.-=1f1.J{J &~ '4'/E t!..OD ~ <t':'~-;~':~-~. '\ E,~.:'1I;.J'1 I.. '"'-&I "l'h.. ~ Q.'f<'~.'r-' .~ ~}I\ Co!.. rf" c' ",," _~, " (CORPORATE SEAIrft)!"'S~~~E;""'''A''4~L~ ~f, r ~. - .: .r.4 ( . ." ,~1 I..... ., " I' , \,.... ' It, .."....,---.~.. STATE OF GEORGIA "~~~..~L,~ '" COUNTY OF HOME DEPOT: HOME DEPOT U.S.A., INC., a Delaware corporation By: Its: ~ ,- Senior Corporate Counsel- Real Estate Altest:-W"~ ~yaJ Its: e ora . tr8W Assistant Secretary ~--."8m~..~ ~ nOFFICIAL SEALa =.~ .....1:: G ;:;f'" ::\= !enda M. Wiogins ~ ::$:: l "'t:1nI Pu,l.li Sial ~G . ~... 3:: 1'lU_ J . ili:,C e or oorgra 2E ~ My CQmml~,lCn E'Cpires 12-27-j)3~:; -.!.?"'" (SEAL) day of of HOME My Commission Expires: ./c9 -c:?7-?JS S-l ~IN~LLRS COUNTY rLR, Orr,R~C.eK 1219B ~O 408 SIGNATURE PAGE FOR COVENANTS, GRANT OF EASEMENTS AND MODIFICATION OF CLEARWATER COMMONS SHOPPING CENTER OPERATION AND RECIPROCAL EASEMENT AGREEMENT IN WITNESS WHEREOF, the parties hereto have signed and sealed this Modification Agreement as of the date first above written. TARGET: TARGET CORPORATION, a Minnesota corporation, formerly known as Dayton Hudson Corporation Witness: By: Its rri Simard Assistant Secretary Target Corporation Witness: Attest: Its: (CORPORATE SEAL) STATE OF MINNESOTA COUNTY OF flu The foregoing instrument w, as acknowledged before me ",S ~ day 151b 1Jit-Lf- ,2002 by ~-III)'f\U~Jcp"{ ~ as II/() e i1S/ ' 7Il rtt-i re'3 of T GET CORPORATION, a Minnesota corporation, formerly known as Dayton Huason Corporation, on behalf of said corporation. ~ (J md!fA,J NOTARYP LIC .~.__A__.___&~&&&_..__.________ I .. ....-.................................................."". TAMMY A. MOSHER I ' NOTARY PUBLIC-MINNESOTA '. ' &Iv Commlhfon EtpltH Jill. 31. 2005 .. (SEAL) My Commission Expires: ~(7,..3 ~ ~ 8-2 PINELLAS COUNTY rLA, orr,REC,BK ,12196 PO 409 SIGNATURE PAGE FOR COVENANTS, GRANT OF EASEMENTS AND MODIFICATION OF CLEARWATER COMMONS SHOPPING CENTER OPERATION AND RECIPROCAL EASEMENT AGREEMENT IN WITNESS WHEREOF, the parties hereto have signed and sealed this Modification Agreement as of the date first above written. SEMBLER: CLEARWATER COLLECTION ASSOCIATES, LTD., a Florida limited partnership By: Sembler Enterprises, Inc., a Florida corporation, its sole General Partner Witness.~- b. ~ '"J<:Atr\~c)b Ie.... Witness: 1iL !!-- tl\elc SS~ 6lAd~ BY:~O~' Its ~,fi-.r ;e.L Pr~~ ~ Attest: Its: (CORPORATE SEAL) STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me Ii: Zql$ day of Aus.u,~'- , 2002 b~'i ~. ~[~ as~,\ACt. t46A..t of SEMBLER ENTERPRISES, INC., a Florida corporation, the general partner of CLEARWATER COLLECTION ASSOCIATES, LTD., a Florida limited partnership, on behalf of said corporation and the limited partnershi . (SEAL) My Commission Expires: JAMES 6. S~2240 oMMl$SlO1'l t C~'lI EXPIRES SEP \ 7. ~ aOHOE01HROuGH ",OV"'NTp..OIi MQTAAY S-3 PINtLLAS COUNTY rLA Orr,RtC.SK 12186 PO 410 SIGNATURE PAGE FOR COVENANTS, GRANT OF EASEMENTS AND MODIFICATION OF CLEARWATER COMMONS SHOPPING CENTER OPERATION AND RECIPROCAL EASEMENT AGREEMENT IN WITNESS WHEREOF, the parties hereto have signed and sealed this Modification Agreement as of the date first above written. CITY OF CLEARWATER, FLORIDA, a municipal corporation ofthe ~tate of Florida Approved as to form: By: ck ~ Willi~:II , City Manager By: f~ J-J Pamela K. Akin City Attorney ~'i . )' /vi By: L C J ~ . ,Q, 0._ Cynth' a . Goudeau City r STATE OF FLORIDA COUNTY OF ~oregOing instrument , 2002 by and ~~ as 0 the CIT OF CLEARWATER, FLORIDA, as municip corporation 0 the State of Florida. ~a)J~ .-NOTARY PlJ13q~. .\ ..DU.HSe.; /1. W,/sou My Commission Expires: (SEAL) ,..\..~-;;.;r!i:."", Denise A Wilson t.~"-A~;~ MY COMMISSION # CC914107 EXPIRES :....:.~.~: June 18, 2004 "'~~';;.; "-~.;- BONDED lHRU TROY FAIN INSURANCE-IN'- ':,It,\" S-4 P INELLA$ C1~~~~Y priLA 411 Orr . REC . BK ' SIGNATURE PAGE FOR COVENANTS, GRANT OF EASEMENTS AND MODIFICATION OF CLEARWATER COMMONS SHOPPING CENTER OPERATION AND RECIPROCAL EASEMENT AGREEMENT IN WITNESS WHEREOF, the parties hereto have signed and sealed this Modification Agreement as of the date first above written. THE PHILLIES THE PHILLIES, a Pennsylvania limited partnership WitnesS:Yr~J.4wJr Witness: ~J.~ By: L9~~ Its GfE~ 1itR7NeR. ~ fll De.Jr Attest:~Y~ Its:$&!.RE11li'Y My Commission Expires: ~ of, '~tft)5: (SEAL) Notarial Seal We!!?y' S. Rossett, tolotary Public City of Philadelphia, Phnadelptlla County My Commission Expires May 2, 2005 Member, PennsytvantaAssoclationof Notaries S-5 , . ~ PINELLRS COUNTY rLR, Drr,REC.BK 12188 PO 412 ...0.... ................... #'~ . <E-- METER 431 $II' .n. , E' . '( REUU VAL~ AiNCLrR S'V5 e!r~ eOHC... --~ ~ ~ iTY MASONRY A SLOG, TRIP STORES" !II g i ::; l!: Q ... : YALvE I.' SF'INT. ,l\IE CONe C-j '" ~~ ~!:i m~ ;!~ 15- ..... ~~ PROJECT BOUt 1_~_~ CfJHC. BRIOe( R..., \,"""" '~ I I I I d 1 '~ CONe. BRIDC( DECK 8OU1H PERIMEteR IU'fER WIml ~ I LENGnl33S LF CONC C~~::) co::]) 6" 6" ~~Cl C-_-_-_-.' 1..::__;.....1 ..J g" c::::) r--g-~ 15" L:::::-_::::J CQNC , I , , 9RIHICU..R r I I : I ON CONCR'E .. POSt ~:;TI\T~ 'jj.:' ",-OR.nA . PINElLAS COUNTY ---~~n'~J)}'I... _~ h,l("bY:<:>r!ify Ih3t the foregoing is .i" ~~:......,..:?/' 'I "," U?'''"DY J$ '~lfJ sarr:e appear:; ClHlong fi(~~."\~/~ ~;;;~~',~:.:'~,;.~" 200 L \(/\~."l~1 ' ~:"'!'t~~.'.>: .'J {. ~j'~~..~~T:i~~'E~~-' -- -- li~f COU~~~~~:.:' ,l'iJ, \"1(;,', ~'~i,-'!lCI."',' \~,Ojl~! \\\\."~"",,..........- \ ,; \ }/7-'.~"". ., 'l -ft--( ::~Y" '-', \ \./\...J ' ',-,,\. / , ' (~-- .DIJi;;~i;.i(;le7},~k,~.._';';, l., EXHIBIT A PARKING LOT SITE PLAN