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COOPERATIVE EASEMENT AND MAINTENANCE AGREEMENT I I INST # 96-302057 NOV 4, 1996 2:10PM PINELLAS COUNTY FLA OFF.REC.BK 9513 PG i6 COOPERATIVE EASEMENT AND MAINTENANCE AGREEMENT BETWEEN THE CITY OF CLEARWATER AND HOLLAND WESTSHORE, INC., AS TRUSTEE, TO CONSTRUCT, OPERATE AND MAINTAIN A STORMWATER RETROFIT PROJECT AT THE CLEARWATER MALL IN CLEARWATER, FLORIDA THIS COOPERATIVE AGREEMENT is entered into this Id.!'tay of j)~995, by and between the City of Clearwater, a political subdivision of the State of Florida, hereinafter referred to as the "CITY", and Holland Westshore, Inc., a Delaware corporation, as successor trustee under the provisions of a certain trust agreement dated September 30, 1992, and known as the Clearwater Trust, dated 09/30/92, whose address is 4350 Wolla Village Drive, Suite 440, San Diego, California 92122, d/b/a Clearwater Mall, hereafter referred to as "HOLLAND." WITNESSETH: WHEREAS, the CITY, pursuant to Chapter 32, Article X, Clearwater Code of Ordinances, has been given the authority and responsibility to protect the surface waters within the city; and, < ;;:.. WHEREAS, the Clearwater Mall, located at the southeast comer of the intersection of State Road 60 and U. S. 19 in Clearwater and described in the legal description attached hereto as ~ Exhibit "A" and made part hereof, was constructed prior to the inception of the State of 00 ;:Florida's Stormwater Rule in 1982, Chapter 17-25 F.A.C., and the City of Clearwater's ~ e: Design Criteria for Storm Drainage adopted in September 1991, Section 42.33 Clearwater CI ~ : ~ Code of Ordinances, and as such discharges untreated stormwater runoff directly into Tampa iF'~ g Bay; and, ccc.;.w.....J uL1-. ~ j::: tl:: a::.~ WHEREAS, Tampa Bay has been identified as an Outstanding Florida Water by the Fl()rida C3 a ~ Department of Environmental Protection, and is the number one priority waterbody of the ti.~ Southwest Florida Water Management District's (SWFWMD) Surface Water Improvement ~ ~ and Management (S.W.I.M.) program; and, w .....J U '11 HECORCW~G ~f"'.("i' fAt). 0-'[.0 h.._. ...l!_._.__. This document prepared by i-f).: -01), '. . Robert L. Barnes, Jr., Esquire Tew, Zinober, Barnes, Zimmet & Unice P.O. Box 5124 Clearwater, FL 34618 (!1J,' g/lVt/-~ · ~ , l,j'rT !~; ..~'- -'fi~o ~... PH /" / . (j; \' .I ..r' PINELLAS OFF.REC BK COUNTY FLA . 9513 PG i7 WHEREAS, the CITY has received a funding con'unitment from the SWFWMD to develop a stormwater drainage system which will accommodate approximately 27 acres of the Clearwater Mall property, and to construct a stormwater treatment facility to retrofit said 27 acres, which facility shall be located on the property described in Exhibit "B" hereto (the entire retrofit project shall be hereafter referred to as the "Project"; provided, however, that the parties acknowledge and understand that physical changes to the Clearwater Mall property described in Exhibit "A", including actual construction of improvements and facilities, shall take place only on that portion of the property described on Exhibit "B"); and, I J WHEREAS, the CITY is responsible for acquiring the necessary land interests from HOLLAND to construct, operate and maintain the Project; and, WHEREAS, the CITY and HOLLAND have reached an understanding as to the relationship and obligations each party shall have with regard to accomplishing the Project, and hereby desire to reduce said understanding to this written Cooperative Easement and Maintenance Agreement (the "Agreement"). NOW, THEREFORE, in consideration of the premises and the mutual covenants, conditions and terms set forth herein, the CITY and HOLLAND hereby mutually agree as follows: 1- SCOPE OF WORK. The CITY shall be responsible for obtaining all geotechnical and field survey work; design of the stormwater treatment facility; preparation of construction plans and specifications for demolition of the existing structure, construction of the stormwater treatment facility and installation of landscaping; state and local permitting; preparation of bid packages; contractor selection; construction administration; and post construction moiritoring and reporting for the Project. HOLLAND shall be responsible for the permanent maintenance of the stormwater treatment facility. These responsibilities shall include, but are not necessarily limited to: removal of undesirable and/or exotic plant species such as cattails, water hyacinths and brazilian pepper; cleaning debris and sediment deposits from the outfall control structure, inlet pipe(s), storm inlets, bleed down devices, etc.; removing accumulated sediment from the retention area; repair of side slope erosion; controlling vegetation within the retention area to assure that the storage volume and flow capacity is not impaired; scarification of the retention area bottom to assure percolation; and other maintenance as may be required by permits issued for the Project. 2.- PROJECT SITE. The parcel of land on which the Project will be located is described in Exhibit "B" attached hereto. 3.- EASEMENT. As a part of this Agreement, HOLLAND hereby grants the CITY a perpetual, non-exclusive drainage easement covering the land on which the Project is to be -2- I PINELLAS COUNTY FLA. OFF.REC.BK 9513 PG 18 located (as described in Exhibit "B" attached hereto). In addition, HOLLAND hereby grants the CITY a temporary construction easement giving the CITY and its agents reasonable access to the Project site to allow for the construction of the Project. Upon completion of the Project, said temporary construction easement automatically shall terminate. Thereafter, the CITY shall have a perpetual, non-exclusive easement over the property described in Exhibit "A" hereto for the following, limited purposes: (a) to provide the CITY and its agents with ingress and egress to the Project for the purposes described hereafter; (b) to allow the CITY to perform all post -construction monitoring and reporting required by any and all permits issued for the Project; and (c) to perform any maintenance work agreed to by the parties and to make any repairs that may be needed. Notwithstanding the above, and except in the event of an emergency, the CITY shall not be permitted access to the Clearwater Mall property for purposes of making improvements (including the initial construction) during the months of November and December, or on weekends (in any month), such restricted times being the Mall's peak business times. No physical modifications shall be made to the stormwater treatment facility, except as provided in this Agreement, unless approved in writing by the CITY, by HOLLAND, and by any other Federal or State authorities having jurisdiction over the Project. 4.- CONTRACTOR. The CITY shall engage the services of a general contractor through a competitive bid process to construct the Project. Nothing contained herein shall create any obligation on the part of HOLLAND to defend any challenge brought by any offerer regarding selection of the contractor. The contract between the CITY and the contractor shall require a Performance, Payment and Guarantee Bond and the contractor's comprehensive liability insurance shall name the SWFWMD, the CITY and HOLLAND as additional insureds. 5.- COMPLIANCE WITH HOLLAND REOUIREMENTS. Coincident with the Project's design, the CITY shall meet with HOLLAND staff to review the Project's design to ensure the Project will comply with all applicable HOLLAND requirements. Thereafter, no material changes to the design shall be made without HOLLAND's written consent, which consent shall not unreasonably be withheld. 6.- PERMITS. The CITY shall act as the applicant of all permit applications required for the Project and shall be responsible for all applicable permit application fees. 7.- FUNDING. Although the CITY contemplates that the cost of construction of the Project will be reimbursed to the City by the SWFWMD, the CITY nevertheless shall be responsible for all costs associated with the design, permitting, construction advertisement and construction administration of the Project. The CITY shall be responsible for all post- construction monitoring and reporting that may be identified in applicable permit(s) issued for the Project. -3- - . . PINELLAS COUNTY FLA. OFF.REC.BK 9513 PG 20 13.- MODIFICATIONS. This Agreement constitutes the entire agreement between the parties and may be amended only by a written mutual agreement specifically referencing this Agreement and signed by all parties hereto. I I 14.- INDEMNIFICATION. The CITY hereby indemnifies and holds harmless HOLLAND for any damages or liabilities incurred by HOLLAND (including legal fees) resulting from negligent and/or faulty design, construction, operation, or repair, of the Project, provided, however, that the maximum sum for which the CITY shall be exposed to liability in this paragraph 14 shall not exceed those sums of money permissible under and by the terms of Section 768.28, Florida Statutes plus any excess liability insurance coverage purchased by the CITY. 15.- ATTORNEYS' FEES. Should either party employ an attorney or attorneys to enforce any of the provisions hereof, or to protect its interest in any matter arising under this Agreement, or to recover damages for the breach of this Agreement, the party prevailing shall be entitled to recover from the other party all reasonable costs, charges and expenses, including attorneys' fees, expended or incurred in connection therewith. 16.- RIGHTS OF OTHERS. The grants contained herein are subject to the rights, if any, of Clearwater Mall tenants and any financial institution (now existing or existing in the future) that has a mortgage interest in the Clearwater Mall property. IN WITNESS WHEREOF, the parties hereto, or their lawful representatives, have executed this Agreement as of the date first above written. Signed sealed and delivered in the presence of: CITY OF CLEARWATER, FLORIDA f1k~ Rita Garvey MaYOr-CO~iSSioner By: ~~ ~ Elizabe eptula City Manager Approved as to form and legal sufficiency ~.~ City Attorney's Office ATTEST: . ,2. 'Date:I.1,! / z..(9S I -5- I I PINELLAS COUNTY FLAil OFF.REC.BK 9513 PG HOLLAND WESTSHORE, INC., a Delaware corporation, as successor trustee under the provisions of a certain trust agreement dated September 30, 1992, and known as the Clearwater Trust, dated 09/03/92, d/b/a Clearwater Mall -~( r /J. os:. (\;la lre S - Typed or printed name of Witness #1 By: Its: ~~-h\ CO~~ Signature of Witness #2 Go...~ \ (' o..('\\~~ \\v Typed or printed name of Itness #2 STATE OF FLORIDA COUNTY OF PINELLAS ~ If\A _The ~oregoing instrument was acknowledged before me this ~ day of ~ ,1995, by Elizabeth Deptula, as City Manager, and Rita Garvey, as Mayor-Commissioner of the City of Clearwater, Florida, a political subdivision of the State of Florida corporation, on behalf of the City. He/she is personally known to me or has produced (type of identification) as identification. c . Cif~ Signa~ Taking Acknowledgment Stamped (NOTARY SEAL) Name of Acknowledger Typed, Printed or. I{N I r.....'INK '{ PIJ CAHO", ." w> t;-~l:'(- COW,},.3810N;' CC 463040 2: n EXPIRES MAY 22,1999 ~("" ~ BONDED THRU TJf~ ~\..r:::,~ ATU.NTIC BONDING CO" INC. Notary Public, State of Notarial Serial Number -6- / / / j - I I PINELLAS COUNTY FLA OFF.REC.BK 9513 PG 22 State of California ) ) ss County of San Diego ) On October 27, 1995, before me Holli G. Hurley, Notary Public, personally appeared Gregory S. Beyer and David J. Hirsch, personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the person or the entity upon behalf of which the persons acted, executed the instrument. Signatur JQ~~ - ~ - ~ H~l~G~H:Rl~ ~ ~ 1 ~ COMM. # 997157 I Notorv Public - California f I SAN DIEGO COUNlV ... '"" '"" ~ ~ ~C~,:"'~-:JU~8:1~ 1 WITNESS my hand and official seal. 7 notary .. ' r" \ . . ,'. I ( I EXHIBIT A ( , PINELLAS COUNTY FLA. OFF.REC.BK 9513 PG 23 ---- LEGAL DESCRIPTION From the'Southwe~t corner of Section 17. Township 29 S.~ Range 16 E.. run S. 880 57' 02" E. along the Southerly line,of said Section 17. 100.00 f~et; t~ence run N. 10 03' 04" E. ;along the Easterly right-of-way line of State Road 55 ,(U.S. Highway 19) and parallel to th~ Westerly line of said Section 17. 860.00 feet; thence runS. .880 57' 02" E. 100. 00 fe~t for a Poi nt of Begi nni ng;' thence run. N. 10 021 58" E. along the Easterly right-of-way line'!Jf State Road 55 as per, deed recorded in O.R. Book 3476. Page 925. Public Records of Pinellas' County. Florida 6.00 ,feet; thence run -N. 880 571 02" W. along said right-of-way line' 24.49 feet; thence run N. 480 20' 20" .W. along said right-of-way line 39.95 feet; thence run N~ S. .56' 56" W. a~ong said right-of-way line 182.08 feet; thence. run Northwesterly along said right-of-way line on a curve to the right of 755.94 feet radius (chord bearing N. 30 56' 56" W.. chord distance 131~.77 feet) 131.94 feet; thence run N. 1003' 04" E. along said right-of-way line 495.89 feet;' .,thence run N. 00 ~28' 32" E. along said right-of-way line, 200.00 feet; thence run N. 10,03' 04" E;. along sai-d'right-of-way line (sai~ line being parallel .to and 100.07 feet Easterly of the Westerly line of said Section '17) : 573.94 feet; thence run N~ 30 201 30" E. along said right-of-way line 50.04 feet; thence run N. 110 15' 18" E. along said right-of-way line 23.05 feet; thence run N. 450 24' 32" E. along the right-of-way line at the Southeasterly corner of the intersection of 'said State Road 55 and State Road 60 (Gulf-to-Bay Blvd.) 119.90 feet; thence run N. 890: 46' 01" E. along the Southerly right-of-way line of State Road 60 (said line being 60 feet Southerly of and parallel to the East-West center line of said Section 17) 1603.41 feet; thence run S. 00 211 26" W. along the WeSterly line of Lot 1 of Resub of Baskin's Replat (see Plat ~ook 24. Page 42. Public Records of Pinellas County. Florida) 459.02 feet; thence run N. 890 46' 14" E. 386.64 feet; thence run N. 00 13' 59" W. 70.79' feet to the'Southeasterly corner of said Lot 1 of Resub of Baskin's Replat; thence run S. 390 011 06" E. 487.42 .feet; thence' run S. 500 '58' 54" W. 678.25 feet; thence run S. 430 11' '54" E. 65.23 feet; thence run S. 360 29,' 07" W. 439.88 feet; thence run N. 530 30' 53" W. 550.00 feet; th~nce run S. 360 29' 07" W. 652.05 fe~t; thence run ~. 880 57' 02" W. 742.58 feet to the P.O.B. . LESS AND EXCEPT the following described portion thereof: , I ' From the Northeast corner of the NW 1/4 of the SW 1/4 of Section 17. " Township 29. S. . Range 16 E.. run S. 00 23' .'02" W. :along the 40 acre line 60.00 feet; thence run N. 890 46' 01" E. along toe Southerly right~of-way line of State Road 60 (Gulf-to-Bay Blvd.) 415.00 feet for a Point of Beginning; thence run S. O. 21' 26" W. alo~g the Westerly line of Lot 1 of ~esub of Baskin's Replat (see Plat Book 24. ,Page 42. i Public Records of Pinellas 'County. Florida). 529.81 feet; thence run' I N. 69. 41' 46" E. along the Southerly line of said Lot 1. 68.00 feet; thence run S. 390,251 12" 'E. 452.93 feet; thence run S. 320 43' 49" E. .80 feet; thence r;un S. 350 12' 39" W. 93.74 feet; thence run S. 50. 581 54" W. 270.64 feet; ~hence run N. 530 30'. '53"~ W....443.76 feet;; thence run N. 8801561 56" W. ~94.61 .feet; ~henc~.;~t~~~~~.~,~I~'h9r,,~or~~~~Ji 6~1.37 feet; thence run N. 89 46\~Ol~ E.::}~.l.,;.~O~!.~e.~;~~ij~nceru~'N.? o 21' 26M E. 270.00 feet; thence run N.:..8~:iJ1~Ji[Q.~_~E:~~O,~.OO.'..feet,.t~ the P.O. B. ., .'- .- ......---."-.......". I . I , . ~ ",) EXHIBIT B PINELLAS COUNTY FLA. OFF.REC.BK 9513 PG 24 From the Southwest corner of Section 17, Township 29 S., Range 16 E., run S. 88057' 02" E. along the Southerly line of said Section 17, 100.00 feet; thence run N. 10 03' 04" E. along the Easterly right-of-way line of State Road 55 (U.S. Highway 19) and parallel to the Westerly line of said Section 17, 860.00 feet; thence run S. 880 57' 02" E. 842.58 feet; thence run N. 360 29' 07" E. 652.05 feet; thence run S. 530 30' 53" E. 369.34 feet for a Point of Beginning; thence run N. 360 29' 07" E. 5.48 feet; thence run N. 800 18' 56" E. 152.09 feet; thence run N. 370 00' 24" E. 321.97 feet; thence run N. 650 09' 06" E. 16.42 feet; thence run S. 430 11' 54" E. 65.23 feet; thence run S. 360 29' 07" W. 439.88 feet; thence run N. 530 30' 53" W. 180.32 feet to the Point of Beginning. -+- I ----- /""". t-ITS /" /- / /" /" ~. /" .,'::( ----- .~. .... > /' /' /' /' . /' /' \; .J (.' , ""'<;.. /. / /T'" ,', // ,#;... 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