FIRST AMENDMENT TO COVENANTS, RESTRICTIONS, GRANT OF EASEMENTS AND MODIFICATION OF CLEARWATER COMMONS SHOPPING CENTER OPERATIONAL AND RECIPROCAL EASEMENT AGREEMENTThis instrument prepared by
and after recording to be
returned to:
Jeffrey J. Wild, Esq.
Benesch Friedlander Coplan & Aronoff LLP
2300 BP Tower
200 Public Square
Cleveland, Ohio 44114
(216) 363-4500
FIRST AMENDMENT TO COVENANTS, RESTRICTIONS, GRANT OF
EASEMENTS AND MODIFICATION OF CLEARWATER COMMONS SHOPPING
CENTER OPERATIONAL AND RECIPROCAL EASEMENT AGREEMENT
THIS FIRST AMENDMENT TO COVENANTS, RESTRICTIONS, GRANT OF
EASEMENTS AND MODIFICATION OF CLEARWATER COMMONS SHOPPING
CENTER OPERATIONAL AND RECIPROCAL EASEMENT AGREEMENT
("Amendment") is made and entered into by and among Inland Southeast Clearwater
Development, L.L.C., a Delaware limited liability company, n/k/a/ DDR SOUTHEAST
CLEARWATER DEVELOPMENT, L.L.C., a Delaware limited liability company ("DDR"),
the CITY OF CLEARWATER, FLORIDA, a municipal corporation (the "City") and
PHILLIES FLORIDA LLC, a Delaware limited liability company ("Phillies Florida"),
successor (by assignment) to The Phillies, a Pennsylvania limited partnership, ("The Phillies"),
as of the g`'"- day of _ k ,v„__ , 2009.
RECITALS
WHEREAS, DDR owns the real property described on Exhibit "A", attached hereto and
made a part hereof (the "DDR Property");
WHEREAS, the DDR Property is 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 Second
Amendment to an Operation and Reciprocal Easement Agreement recorded in Official Records
Book 6921, at Page 129, (3) that certain Third 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 an Operation and Reciprocal Easement
Agreement recorded in Official Records Book 9664, at Page 451, all in the Public Records of
Pinellas County, Florida (collectively the "REA");
WHEREAS, the City owns the real property described on Exhibit "B", attached hereto
and made a part hereof (the "City Property");
WHEREAS, pursuant to that certain Covenants, Restrictions, Grant of Easements and
Modification of Clearwater Commons Shopping Center Operational and Reciprocal Easement
Agreement recorded in Official Records Book 12196, at Page 391, in the Public Records of
Pinellas County, Florida (the "Modification Agreement"): (a) the City Property was released
from the REA's operation and effect; and (b) both the DDR Property and the City Property were
made subject to the Modification Agreement;
WHEREAS, the Modification Agreement extinguished an easement for ingress, egress
and parking set forth in the REA which burdened the City Property for the benefit of the DDR
Property;
WHEREAS, Phillies Florida, is the successor in interest to, and assignee of, The Phillies,
pursuant to an unrecorded assignment, with respect to the rights and obligations of The Phillies
as provided in the Modification Agreement;
WHEREAS, DDR desires to obtain from the City and Phillies Florida, and the City and
Phillies Florida desire to grant to DDR, an easement upon a portion of the City Property for
purposes of ingress, egress and parking; and
WHEREAS, the City and Phillies Florida desire to obtain from DDR, and DDR desires
to grant to the City and Phillies Florida, an easement upon a portion of the DDR Property for
purposes of ingress, egress and parking;
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. The foregoing recitals are incorporated by this reference for all purposes.
2. The Modification Agreement is
incorporate therein the defined
provided for in this Amendment.
hereby modified and amended so as to
terms and the respective definitions thereof
3. Section 6(A) of the Modification Agreement is deleted in its entirety and the
following is hereby substituted in its place and stead:
The City and Phillies Florida, and their respective employees, contractors,
agents, tenants, licensees and invitees, and their respective successors and/or
assigns (collectively, the "Community Sports Complex Parties"), shall have
the right to use and occupy on an exclusive basis, as herein provided, during
Events (as such term is defined in that certain First Amendment to Covenants,
Restrictions, Grant of Easements and Modification of Clearwater Commons
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Shopping Center Operational and Reciprocal Easement Agreement [the "First
Amendment"] dated on or about , 2009, among DDR, the
City and Phillies Florida, which modifies and amends this Modification
Agreement) those parking lot areas located on portions of the City Property
and the DDR Property as designated and cross-hatched on Exhibit "C"
attached to the First Amendment (the "Restricted Parking Area").
DDR for itself and its successors and assigns hereby grants to the City and
Phillies Florida for the use of the Community Sports Complex Parties, a non-
exclusive perpetual easement for (i) vehicular and pedestrian passage, ingress
and egress in, on, over and across the driveways and parking areas of the DDR
Property; and (ii) the parking of vehicles in and on the portions of the
Restricted Parking Area which are located on the DDR Property, subject to
the provisions and limitations provided herein.
Additionally, the City and Phillies Florida hereby grant to DDR for its use and
for the use of the DDR Parties (as defined in the First Amendment), in
common with others entitled to use the same, a non-exclusive perpetual
easement for (i) vehicular and pedestrian passage, ingress and egress in, on,
over and across the City Property; and (ii) the parking of vehicles in and on
the portions of the Restricted Parking Area which are located on the City
Property ("DDR Easement") subject to the provisions and limitations
provided herein; provided, however, that the DDR Easement shall be
immediately suspended during any time in which DDR fails to maintain a
tenant in occupancy, operating at least fifteen (15) stores in the southeastern
United States.
The City shall have the right to terminate the DDR Easement at any time after
that date which is the twentieth (20th) anniversary of the date that the First
Amendment is recorded in the Public Records of Pinellas County, Florida, but
only if, at the time of delivery of the Termination Notice (hereinafter defined),
both of the following conditions exist: (a) the City has undertaken the
redevelopment of the City Property for a use other than a sports complex and,
as part of such redevelopment, the City needs to use the DDR Easement area
for a use other than the parking of motor vehicles, and (b) DDR does not have
a tenant in occupancy in the DDR Property operating at least fifteen (15)
stores in the southeastern United States. In order for the City to exercise the
foregoing right to terminate the DDR Easement, the City must deliver written
notice thereof ("Termination Notice") to DDR by certified mail, return receipt
requested, not less than one hundred eighty (180) days prior to the date that
such termination is to take effect, which termination date shall be set forth in
the Termination Notice.
Further, DDR shall procure and maintain during the terra of the DDR
Easement, Comprehensive General Liability Insurance which shall provide:
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a. Minimum coverage limits of $1,000,000 Per Occurrence Combined
Single Limit for Bodily Injury Liability and Property Damage
Liability.
b. The City of Clearwater and Phillies Florida LLC and its affiliates shall
be a named Additional Insureds under said policy of insurance.
The policy shall provide coverage for any death, bodily injury,
personal injury or property damage that should arise directly or
indirectly from performance under this Agreement.
c. The insurance coverages and conditions afforded by this policy shall
not be suspended, voided, canceled or modified except after thirty (30)
days prior written Notice by certified mail, return receipt requested,
has been given to the City's Risk Management Office and to Phillies
Florida.
d. DDR's obligation to carry the insurance provided herein may be
brought within the coverage of a "blanket policy" of insurance carried
and maintained by DDR; providing, however, the coverages afforded
the City of Clearwater and Phillies Florida shall not be reduced or
diminished or otherwise be different from that which would have
existed under a separate policy meeting all other requirements of this
Agreement.
e. Certificates of Insurance meeting the specific insurance provisions
required in this Agreement shall be forwarded to the City's Risk
Management Office and Phillies Florida and approved prior to
possession of the easement premises.
The parties agree that parking areas on the DDR Property and the City Property,
inclusive, without limitation, of the Restricted Parking Area, shall not be
permanently segregated, by fencing or other permanent barrier, from. the
remainder of the City Property or from the remainder of the DDR Property;
provided, however, that during Events, the City, Phillies Florida, or both, may,
and are expressly entitled to, temporarily segregate, and restrict and/or block entry
to and from, the Restricted Parking Area (including without limitation those
portions located on the DDR Property) by cones, pylons, barricades, other traffic
control equipment or devices, use of parking personnel, security or police officers,
or other temporary method. The City, Phillies Florida, or both, may further
charge the general public or invitees with respect to any such Event fees for the
privilege of using or parking in or on the Restricted Parking Area (including
without limitation the portions thereof located on the DDR Property) during any
such Event, and DDR, for itself and its successors and/or assigns, hereby grants to
the City and Phillies Florida the irrevocable license so to do. DDR and the DDR
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Parties shall not use, or have any right of access to or from, the Restricted Parking
Area during Events.
The foregoing easements shall run with the land, are appurtenant to the DDR
Property and. the City Property, as applicable, and shall inure to the benefit of
DDR and the DDR Parties and the City and Phillies Florida and the Community
Sports Complex Parties, as applicable. It is expressly understood that the City
reserves all rights of ownership or use of those portions of the Restricted Parking
Area located on the City Property and DDR reserves all rights of ownership or use
of those portions of the Restricted Parking Area located on the DDR Property, as
well as the other parking areas located on the DDR Property, not inconsistent with
the easement rights granted herein. Without limiting the foregoing, nothing in the
Modification Agreement or the First Amendment, including, without limitation,
the granting of an easement to the City, shall be deemed to be a gift or dedication
to the general public or a dedication for any public use or purpose whatsoever.
4. Section 6(B) of the Modification Agreement is hereby amended and restated in its
entirety as follows:
The City and Phillies Florida during Events at the Community Sports Complex
and preparation for or clean-up after such Events, shall use commercially
reasonable efforts to prevent persons attending Events from parking on the DDR
Property, except for those portions of the Restricted Parking Area located on the
DDR Property. Such preventative efforts shall employ (by way of illustration) the
use of advance pedestrian and traffic control planning, directional signage,
barricades and parking personnel, security, or police officers. If, after an. Event,
the Owner of the DDR Property has concerns or requests additional enforcement,
the City and Phillies Florida agree in good faith to reevaluate 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 Owner of the DDR
Property.
5. Section 6(D) of the Modification Agreement is hereby amended and restated in its
entirety as follows:
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 (including, without
limitation, the Restricted Parking Area) 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.
During such periods of time that the DDR Parties are entitled to use the DDR
Easement, the DDR Parties shall, in a commercially reasonable fashion and in
compliance with the standards of DDR Property, clean or sweep all sidewalks,
5
drives, and parking areas and remove papers, debris, filth and refuse therefrom on
the DDR Easement; provided, however, that the DDR Parties shall have no
obligation to perform any sweeping or cleaning that may be required in
connection with the use of the Restricted Parking Area by the Sports Complex
Parties during any Event.
6. In the event that either the Phillies or the City reasonably believes that it will need
to use additional parking areas on the DDR Property for parking motor vehicles
during any particular Event in addition to the parking areas in the Restricted
Parking Area, then DDR agrees to cooperate with the Phillies and/or the City, as
the case may be, to provide for such additional parking on the DDR Property for
such Event. DDR, the Phillies and the City each agree to act reasonably and in
good faith in cooperating with one another with respect to such additional
parking. When requesting the use of such additional parking areas, the Phillies
and/or the City shall provide DDR with as much advance notice as is reasonably
possible under the circumstances so that DDR can accommodate such request for
additional parking.
7. Exhibit "A" to the Modification Agreement is deleted in its entirety and the
drawing attached hereto as Exhibit "C" is hereby substituted in its place.
8. The term "DDR Parties" shall mean (a) DDR's employees, contractors, agents,
tenants, licensees and invitees, and (b) any person or entity holding any interest in
the DDR Property and such person or entity's employees, contractors, agents,
tenants, licensees and invitees.
9. The terms "Remaining REA Tracts" and "Home Depot Parcel", as used in the
Modification Agreement, shall also mean and include the "DDR Property" and
the "City Property", respectively. Capitalized terms not otherwise defined herein
shall have the meaning ascribed to such term in the Modification Agreement. The
term "The Phillies" as used in the Modification Agreement shall hereafter mean
"Phillies Florida".
10. The term "Events" shall mean and include all events that the City or Phillies
Florida, or both, in their sole discretion, conduct in the Community Sports
Complex, a portion of which is located on the City Property, for which the City
and/or Phillies Florida exercise the exclusive use of the Restricted Parking Area
for the parking of motor vehicles. For the purposes hereof and of the
Modification Agreement, the term "Event" shall include the period of time
commencing three (3) hours prior to the scheduled commencement time, and
ending one (1) hour after the conclusion, of any such Event.
11. Except to the extent modified by this Amendment, all other terms and conditions
set forth in the Modification Agreement shall remain in full force and effect. In
the event of a conflict between the terms and conditions of this Amendment and
the terms and conditions of the Modification Agreement, this Amendment shall
prevail.
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IN WITNESS WHEREOF, DDR the City and Phillies Florida have executed this
Amendment as of the date first set forth above.
DDR SOUTHEAST CLEARWATER
DEVELOPMENT, L.L.C., a Delaware
limited liability company
By:
Timothy J. BruX/PXecut.ive Vice President
__` F[ZAL-D '7)^1/e-, (Print Name)
R.. C h it ;& &L (d+ &- _- (Print Name)
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
FORE ME, a Notary Public in and for said County and State, personally appeared
r o J . known to me to be the
of DDR Southeast Clearwater Development, L.L.C., the limited liability company that executed
the foregoing instrument, who acknowledged that he/she did sign the foregoing instrument for
and on behalf of said limited liability company being thereunto duly authorized, and that the
same is his/her free act and deed as such officer and the free at and deed of said limited liability
company.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal at Beachwood,
Ohio this AVdday of d '2009.
?11r?lyMN gem of Ohio
400bel61ee: ummit
up 0800h "Expires
NWh 1, 2814
. J
ary Public
CITY OF CLEARWATER, FLORIDA
Countersigned:
By: By:
ame: Frank V. Hibbard Name: William B. Horne II
Its: Mayor Its: City Manager
APP VE AS TO FORM:
aura Mahony
Assistant City Attorney
STATE OF FLORIDA)
COUNTY OF PINELLAS )
ATTEST
BEFORE ME, a Notary Public in and for said County and State, on the Z& day of
2009, personally appeared Willim B. Home II known to me to be the City
ager of the City of Clearwater, Florida, a body corporate and politic of the State of Florida,
on behalf of the City. He/she is personally known to me or ? has produced
as identification.
(SEAL)
Notary Public
DIANE E MANNI
MY COMMISSION# N DD5
DD526033
STATE OF FLORIDA) OF%% EXPIRES: Mar. 6.2010
107199&0153 Malda Noisy SaMca.aam
COUNTY OF PINELLAS )
BEFORE ME, a Notary Public in and for said County and State, on the •,? day of
2009, personally appeared Frank V. Hibbard known to me to be the Mayor of
City of Clearwater, Florida, a body corporate and politic of the State of Florida, on behalf of
the City. He/she is personally known to me or ? has produced
as identification.
(SEAL)
Notary Public
DIANE E MANNI
MY COMMISSION * DDS26W3
OFVU EXPIRES: Mar.6.2010
998-0163 FWda Halsey Sw4k*=
ATTEST:
l?i GLiA M hAt &AR(Print Name)
SR, r/° t sc'C y
COMMONWEALTH OF PENNSYLVANIA )
) SS:
COUNTY OF PHILADELPHIA )
PHILLIES FLORIDA LLC,
A Delaware limited liability company
By: THE PHILLIES, a Pennsylvania limited
partners i , Its sole member
By: a
Name: David P. Mo ome
Its: General Partner
Before me, a Notary Public in and for said County and Commonwealth, personally
appeared David P. Montgomery, known to me to be the General Partner of The Phillies, a
Pennsylvania limited partnership, which is the sole member of Phillies Florida LLC, a Delaware
limited liability company, that executed the foregoing instrument, who acknowledged that he did
sign the foregoing instrument as General Partner of the sole member, for and on behalf of said
limited liability company, being thereunto duly authorized, and that the same is his free act and
deed and the free act and deed of said limited liability company.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal at Philadelphia,
Pennsylvania this day of -m A 2009.
Notary Public
COMMONWEALTH OF PENNSYLVANIA
Nat" Seal
Wendy S. Rossett, NoWy Public
City d Philadelphia, Phladelphis County
MY Commission Expires May 2, 2013
Member, Pennsylvania Association of Notaries
EXHIBIT A
Parcel 1
Lot 4, THE CLEARWATER COLLECTION SECOND REPLAT, a subdivision according to
the plat thereof recorded in Plat Book 107, Page 24 of the Public Records of Pinellas County,
Florida, LESS and except those portions thereof conveyed, taken or used for U. S. Highway 19.
Parcel 2
Lots 2 and 3, THE CLEARWATER COLLECTION SECOND REPLAT, according to plat
thereof recorded in Plat Book 107, Pages 24 and 25, of the Public Records of Pinellas County,
Florida, LESS and except road right-of-way for U. S. Highway 19, abutting said parcel on the
East. Lot 1, THE CLEARWATER COLLECTION SECOND REPLAT, according to plat thereof
recorded in Plat Book 107, Pages 24 and 25, of the Public Records of Pinellas County, Florida.
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EXHIBIT B
Lot 1, THE CLEARWATER COLLECTION SECOND REPLAT, according to plat thereof
recorded in Plat Book 107, Pages 24 and 25, of the Public Records of Pinellas County, Florida.
LESS AND EXCEPT that portion of said Lot 1 taken in fee simple, designated as Parcel 120 by
Case No. (Eminent Domain) 99-4965-C1, as evidenced by that Lis Pendens recorded in Official
Records Book 10598, Page 2406; Stipulated Order of Taking & Final Judgment recorded in
Official Records Book 10714, Page 617; Stipulated Order of Taking and Final Judgment
recorded in Official Records Book 10714, Page 620; Stipulated Order of Taking and Partial Final
Judgment recorded in Official Records Book 10714, Page 624; Stipulated Order of Taking and
Final Judgment recorded in Official Records Book 10714, Page 628; Order of Taking recorded
in Official Records Book 10741, Page 2041; Stipulated Final Judgment recorded in Official
Records Book 1161, Page 1495; and Amended Order of Taking and Stipulated Final Judgment
recorded in Official Records Book 11704, Page 1408, Public Records of Pinellas County,
Florida.
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EXHIBIT C
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Cleal'aterr Fla (ON
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CIS h7fR
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