CONSTRUCTION, ACCESS AND MAINTENANCE EASEMENT AGREEMENTThis instrument prepared by, or under the
supervision of (and after recording, return to):
Nancy Lash, Esq.
Greenberg Traurig, P.A.
1221 Brickell Avenue
Miami, Florida 33131
KEN BURKE, CLERK OF COURT
PINELLAS COUNTY FLORIDA
INST# 2010026751 01/29/2010 at 01:32 PM
OFF REC BK: 16817 PG: 1071-1081
DocType:AGM RECORDING: $95.00
for Clerk
CONSTRUCTION, ACCESS AND MAINTENANCE, EASEMENT AGREEMENT
THIS CONSTRUCTION, ACCESS AND MAINTENANCE EASEMENT
AGREEMENT ("Agreement") is made and entered into as of the 17t-ay of December, 2009, by
and between the CITY OF CLEARWATER, a municipal corporation of the State of Florida
("Qiy") and L.O.M., INC., a Florida corporation ("LOM").
RECITALS:
A. LOM is the owner in fee simple of that certain parcel of land located at 315 S.
Gulf View Boulevard in Clearwater, Florida, which is legally described or depicted in Exhibit A
attached hereto ("LOM Pronem").
B. The City owns or controls that certain parcel of land adjacent to and west of the
LOM Property, which is legally described or depicted in Exhibit C attached hereto ("City
Pro a ").
C. The City and LOM entered into that certain letter agreement of even date
herewith (together with any amendments, modifications, extensions, restatements and
supplements from time to time, the "Letter Agreement"), which governs the construction of a
"wave dissipating wall" on the City Property ("Break Wall"), as more particularly described in
the Letter Agreement.
D. The City desires to grant and create, on the terms and conditions hereinafter set
forth, certain construction, access and maintenance easements over, under and upon that portion
of the City Property more particularly described in Exhibit C attached hereto ("Easement Area")
in favor of LOM and all of the present and future owners of the LOM Property.
NOW, THEREFORE, in consideration of the premises, agreements and covenants set
forth hereinafter, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the City and LOM hereby agree that the foregoing recitals are
true and correct and further agree as follows:
V9 MIA 180,823,377
1. t of emen to LOM. Subject to the conditions herein, the City hereby
grants to LOM a perpetual non-exclusive easement over, through, upon, across and under the
Easement Area for the following purposes; (i) ingress and egress from the LOM Property to and
from the Easement Area for the purpose of installation, construction, maintenance, repair
restoration and replacement of the Break Wall (ii) installation and construction of the Break Wall
and other related and ancillary items within the Easement Area, and (iii) maintenance, repair,
restoration and replacement of the Break Wall. The easements granted herein include the right to
keep and maintain the Break Wall within the Easement Area (and repair, restore and replace
same in the event of damage or destruction of any kind or nature) in perpetuity. The foregoing
easements shall be in favor of and appurtenant to the LOM Property, to be used in common with
the owner(s) from time to time of the LOM Property and their respective employees, contractors,
operators, agents and representatives.
2. Construction and Maintenance of Break Wall. LOM shall, at its sole cost and
expense, construct the Break Wall in accordance with the terms and conditions set forth herein
and the Letter Agreement. LOM shall submit an application to the City for the necessary permit
to allow construction of the Break Wall within thirty (30) days following recordation of this
Agreement, and shall substantially complete construction of the Break Wall within one hundred
fifty (150) days following the issuance of such permit, subject to force majeure. Failure to apply
for such permit or substantially complete construction of the Break Wall (subject to force
majeure) as provided herein shall result in the termination of this Agreement. Such termination
shall be recorded by the City in the Public Records of Pinellas County, Florida. LOM shall, at its
sole cost and expense, (a) except as otherwise provided herein, maintain and repair the Break
Wall in accordance with the requirements of the Federal Emergency Management Agency
(including any maintenance and operation plan required by such agency), and City of Clearwater
standards for maintenance of knee walls within Beach Walk (as contemplated by Beach by
Design), and (b) repair any damage to the landscaping, surfaces, structures or utilities within the
Easement Area or within Beach Walk (as contemplated by Beach by Design) caused by the
construction, maintenance, repair, restoration, and/or replacement of the Break Wall.
Notwithstanding the foregoing, the City shall reimburse LOM for all costs and expenses incurred
in the maintenance, repair and restoration of the Break Wall necessitated by or required as a
result of the negligence or willful misconduct of the City, its employees, contractors, operators,
agents or representatives.
3. No b tructin of Traffic. LOM shall not cause or permit any material
obstruction to the free flow of vehicular or pedestrian traffic in and through the Easement Area
or to the use and exercise of the easement rights granted herein except during temporary periods
when the Break Wall is being constructed, maintained or repaired. All construction,
maintenance or repair work performed by LOM shall be accomplished in such a manner as to
minimize any disruption to the free flow of ingress and egress over and across the Easement
Area.
4. Reservation. The City hereby reserves all rights of ownership in and to the
Easement Area which are not inconsistent with the easement and rights granted herein,
including, without limitation, the right to grant further easements on, over and/or across such
area (e.g. utility easements) and all other uses not interfering with the uses permitted herein,
v9 MLA 180,823,377 2
5. Liens. LOM shall keep the Easement Area (and all portions thereof) at all times
free of mechanics' liens, and any other liens, for labor, services, supplies, equipment or materials
purchased or procured, directly or indirectly, by or for LOM. LOM agrees that it will promptly
pay and satisfy all such liens of contractors, subcontractors, mechanics, laborers, materialmen
and others of like character. In the event any such liens shall be made or filed, LOM shall bond
against or discharge same within thirty (30) days after receiving written notice of the filing of
same. LOM shall not have any authority to create any liens for labor or material on the
Easement Area and all persons contracting with LOM for the performance of any services,
supply of any materials or provision of any labor for any work done in, on or around the
Easement Area, and all materialmen, contractors, suppliers, mechanics and laborers are hereby
charged with notice that they must look solely to LOM to secure payment of any bill for work
done or material furnished at the request or instruction of LOM.
6. Mogggges. LOM shall be prohibited from mortgaging or otherwise encumbering
the City's Property; however, any mortgage of the LOM Property may include and encumber the
non-exclusive easement rights granted pursuant to this Agreement as recorded in the Public
Records of Pinellas County, Florida (as amended from time to tune) over the City Property.
7. Defaults. In the event that any party defaults under the terms, provisions or
obligations of this Agreement and such default is not cured within thirty (30) days after receipt of
the written notice specifying in reasonable detail the event of default ("Default Notice"), or if
such event of default is of such nature that it cannot be completely cured within such time period,
then if the defaulting party shall not have commenced to cure such default within such thirty (30)
day period and shall not diligently prosecute such cure to completion within such reasonable
longer period of time as may be necessary, then the nondefaulting party shall have all rights and
remedies available at law or in equity for the redress of such default, including, in the case of the
City, the right of self-help under the circumstance set forth in paragraph 8 below.
8. Self-Help. If LOM fails to maintain the Break Wall in the condition described in
paragraph 2 above, then the City may give a Default Notice to LOM, and LOM shall have the
applicable cure period (described in paragraph 7 above) following receipt of such notice to
restore the Break Wall to the required condition. If LOM fails to restore the Break Wall within
said cure period, then, in addition to the other remedies provided herein, the City may restore
same to the required condition and thereafter LOM shall reimburse the City for the reasonable
costs of such restoration (excluding any restoration the cost of which the City is required to
reimburse under paragraph 2) within fifteen (15) days following LOM's receipt of an invoice
therefor. Any sums not reimbursed when required herein shall bear interest at the maximum rate
allowed by law from the date due until paid.
9. Covenant Running_ with the Land. The easements hereby granted and the
requirements herein contained are intended as, and shall be, covenants running with the land.
10. Amendments; Termination. Except as otherwise provided in paragraph 2, this
Agreement may not be amended, modified or terminated except by written agreement of all of
the then fee owners of the City Property and the LOM Property, and the holders of any
mortgages of record encumbering same. Furthermore, no modification or amendment shall be
effective unless in writing and recorded in the Public Records of Pinellas County, Florida.
v9 MLA 180,823,977
11. Miscellaneous.
a. Counterparts. This Agreement may be executed in any number of
counterparts and by the separate parties hereto in separate counterparts, each of which shall be
deemed an original, but all of which (when taken together) shall constitute one and the same
instrument.
b. Construction. Reference to any paragraph, section, exhibit, or subpart
thereof, unless otherwise provided, shall refer to this Agreement. In construing this Agreement,
the singular shall be held to include the plural, the plural shall be held to include the singular, and
reference to any particular gender shall be held to include every other and all genders. Use of the
term "including" shall mean "including, without limitation". Each of the parties hereto and their
counsel have reviewed and revised, or requested revisions to, this Agreement, and the usual rule
of construction that any ambiguities are to be resolved against the drafting party shall be
inapplicable in the construction and interpretation of this Agreement and any amendments or
exhibits to this Agreement.
C. Titles of ParagEWhs and Sections. The titles of the several parts,
paragraphs and sections of this Agreement are inserted for convenience of reference only and
shall be disregarded in construing or interpreting any of its provisions.
d. Notices, Any notice or communication under this Agreement shall be in
writing and shall be deemed sufficiently given if hand delivered or dispatched by United States
certified mail, postage prepaid, return receipt requested, or by nationally recognized overnight
delivery service, to the appropriate party or entity, and their respective authorized representatives
as set forth below, at the address specified below or at such other address of which the other
parties shall be duly notified in writing:
NOTICE TO THE CITY:
City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756
Attn: City Manager
NOTICE TO LOM:
L.O.M., Inc.
c/o Surf Style, Inc.
4100 N. 28th Terrace
Hollywood, Florida 33020
Attn: Controller
WITH COPY TO:
Pamela K. Akin, Esq.
Clearwater City Attorney
112 S. Osceola Avenue
Clearwater, FL 33756
WITH COPY TO:
Greenberg Traurig, P.A.
1221 Brickell Avenue, 23rd Floor
Miami, Florida 33131
Attn: Nancy B. Lash, Esq.
All notices shall be deemed received when actually delivered if delivered by hand or by a
nationally recognized overnight delivery service and shall be deemed delivered five (5) days
following mailing in the event mailed as provided above.
e. S_ everability. If any term or provision of this Agreement or the application
thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Agreement or the application of such term or provision to the persons or
v9 MIA 780,823,377 4
circumstance other than those as to which it is held invalid or unenforceable, shall not be
affected thereby, and each term and provision of this Agreement shall be valid and be enforced
to the fullest extent permitted by law.
f. Governing Laws. The laws of the State of Florida shall govern the
interpretation, validity, performance and enforcement of this Agreement. Venue for any action
brought hereunder shall be proper exclusively in Pinellas County, Florida.
g. Expenses. In the event any arbitration, litigation or controversy arises out
of or in connection with this Agreement between the parties hereto, the prevailing party in such
arbitration, litigation or controversy shall be entitled to recover from the other party or parties all
reasonable attorneys' and paralegals' fees, expenses and suit costs, including those associated
with any appellate or post judgment collection proceedings.
h. Exhibits. All of the Exhibits attached to this Agreement are incorporated
in, and made a part of, this Agreement.
L Waiver of Jury Trial. The parties hereby each knowingly, irrevocably,
voluntarily and intentionally waive any right such party may have to a trial by jury in respect of
any action, proceeding or counterclaim based on this Agreement, or arising out of, under or in
connection with this Agreement or any amendment or modification of this Agreement, or any
other agreement executed by and between the parties in connection with this Agreement, or any
course of conduct, course of dealing, statements (whether verbal or written) or actions of any
party hereto. This waiver of jury trial provision is a material inducement to the parties to enter
into this Agreement.
[The remainder of this page is intentionally left blank]
v9 MM 180,823,377 5
EXECUTED as of the date and year first above written.
SIGNED, SEALED AND DELIVERED
IN THE PRESENCE OF:
Name:
Name:
Attest:
By: _
Cynthia Goudeau, City Clerk
Approved as to form:
Pamela K. Akin
City Attorney
STATE OF FLORIDA
COUNTY OF PINELLAS
THE CITY OF CLEARWATER,
FLORIDA, a Florida municipal corporation
$y: See Attached Signature Page
Frank V. Hibbard, Mayor
The foregoing instrument was acknowledged before me this day of ,
20? by Frank V. Hibbard and Cynthia Goudeau, Mayor and City Clerk, respectively, for the
City of Clearwater, Florida, on behalf of the City.
By:
Signature of Notary Public
Printed, typed or stamp
My Commission Expires:
V9 MIA 180,823,377 6
Countersigned: CITY OF CLEARWATER, FLORIDA
By:
Ffa(hk V. Hibbard Iliam B. Horne II
Mayor City Manager
Approved as to form: Attest:
i-r'l?-l
Pame a K. Akin
City Attorney
SIGNED, SEALED AND DELIVERED
IN THE PRESENCE OF:
III Gv- bell r)o IS
Name:
STATE OF FLORIDA
COUNTY OF UrOWW
L.O.M., INC., a Florida corporation
Sy:
Name: A, hlr
Title:
e forming i W was acknowled e; befor We ko?d#y of e(W kV, 2009 by
as V e t of L.O.M., INC, a
Florida corporation, on behalf of the corporation.
By: 4 4Am:?
Signature of Notary Public
Ll u(t y VeVy- S My Commission Expires: Z? ?j (7 1 b
Printed, typed or stamp `
NOTARY PUBLIC-STA'I'R OF FLORIDA
Lauren Weeks
Commission # DD614429
•.,,,,,,.r' Expires: DEC. 30, 2010
BONDED MU ATLANT1C,B0NPjNIG CO., INC.
V9 MIA 180, 823,377 7
EMMIT A
LOM PROPERTY
PARCEL 1:
Lot 110, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as
recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida.
PARCEL 2:
Lots 60, 61 and 62, and the Southerly one-half of Lot 107 and all of the Lots 108 and
109, LLOYD-WHITE-SKINNER SUBDIVISION, according to the plat thereof as
recorded in Plat Book 13, Pages 12 and 13, Public Records of Pinellas County, Florida.
v9 MIA 980,823,377
EXHIBIT B
INTENTIONALLY OMITTED
v9 MIA 180,823,377
Sco%• 1' 40'
This is nit o survey
.w
N
O
~1
EXHIBIT "C"
NORTH
I I ? Il
I la
11
---
101
II0.5''
Commence at the Northwest Corner of Lot 60 of LLOYD
WHITE SKINNER Subdivision as recorded Plat Book 13 Page 12 63
of the Public Records of Pinellas County, Florida for a POINT
OF BEGINNING; thence run Southerly along the East Right of
Way line of South Gulfview Blvd. and a curve concave 1
Westerly with a radius of 6017.52 feet; an Arc length of ~1
179.98 feet; a Chord Bearing S 08'34'54" W and a Chord
distance of 179.97 feet; thence run N 80'34'24" W. 110.51
feet to the Coastal Construction Control Line (C.C.C.L.) CITY OF CLEARWATER, FLORIDA
thence run N 06'47'27" E. 176.73 feet; thence run S ENGINEERING DEPARTMENT
82'15'44" E, 116.03 feet to the P.D.B. ? w IMAI QIt"M •i •,