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LETTER AGREEMENT MODIFYING REA WITH PHILLIES AND DDR FOR CHARTER SCHOOLY% _ / April � , 2012 City of Clearwater, Florida c/o City Attorney's Office 1] 2 S. Osceloa Avenue Clearwater, Florida 33756 Attn: Laura Mahony, Esq. Phillies Florida LLC 601 N. Old Coachman Road Clearwater, Florida 33765 Attention: John Timberlake Re: Covenants, Restrictions, Grant of Easements and Modification of Clearwater Commons Shopging Center Operation and Reciproca� Easement Agreement recorded September 3, 2002, as amended by the First Amendment thereto dated June 25, 20Q9 (the "OEA"} among DDR Southeast Clearwater Development, L.L.C. ("DDR"), City of Clearwater, Florida (the "City ") and Phillies Florida LLC (the "Phillies") encumbering the Clearwater Collection shopping center in Clearwater, Florida (the "Shopping Ce�ater") and the parcel of land located adjacent to the Shopping Center described on Exhibit B thereto. Dear Ms. Mahony and Mr. Timberlake: As you are aware, DDR is the owner of the above referenced Shopping Center. As part of the day-to-day management of the Shopping Center, DDR desires to lease Unit 10 of the Shopping Center to the tenant doing business as 21 st Century High School of Pinellas ("Newpoint Pinellas"). Newpoint Pinellas desires to operate a charter school in Unit 10 to serve the Clearwater, Florida community. DDR has pursued an amendment to the Comprehensive Plan of the City of Clearwater which would permit the use of a charter school in the Shopping Center. The City passed such amendment as evidenced by Ordinance No. 8312-12. Pursuant to Section 3(B)(1) of the OEA, DDR may not lease to any tenant in the Shopping Center whose proposed use "is inconsistent with the operation of a first-class retail shopping center" (the "Ilse Restriction"). DDR hereby requests that the City and ThinkRetail. CreateValUe. ddr 3300 Enterprise Parkway = Beachwood Ohio 44122 IiSt2dNYSE� p.216.755.5500 f 216.755.1500 www.ddr.com April _, 2012 Page 2 of 3 the Phillies waive the Use Restriction as it may apply, if at a11, to the use and operation of a charter school in Unit 10 of the Shopping Center by Newpoint Pinellas and its successors and assigns. In the lease of Unit 10, Newpoint Pinellas will be prohibited from using the parking spaces designated for the exclusive use by the Phillies under the OEA. Further, DDR will require that Newpoint Pinellas utilize only the parking spaces located in the approximate area set forth on attached Exlubit "A" and incorporated herein by reference and labeled "Faculty & Student Parking". DDR, the City and the Phillies acknowledge and agree that the foregoing waiver is limited to the use and operation of a charter school in Unit 10 by Newpoint Pinellas and its successors and assigns, and tlie Use Restriction will otherwise continue to apply ta the entire Shopping Center, excluding any independent written waivers hereinafter given by the Phillies and the City. The waivers set forth herein are expressly subject to all other applicable governmental and regulatory approvals necessary to legally operate Newpoint Pinellas at the subject location. Please acknowledge the City's and the Phillies' respective limited waiver of the Use Restriction for the limited purpose described herein by causing an authorized representative to sign and date this letter in the space provided below and returning it to the undersigned at your earliest convenience. Thank you in advance with your assistance with this request. Sincerely, DDR SO THEAST CLEARWATER DEVELOPMENT, L.L.C., a Del v�r limited liability company By: _ Name: Title: [Signed Counterparts are Attached on the Following Pages] ThinkRetai I. CreateVal Ue. ddr 3300 Enterprise Parkway � Beachwood � Ohio ° 44122 IISteC� NYSE� p. 216.755.5500 f. 216.755.1500 www ddr.com April _, 2012 Page 3 of 3 ACCEPTED AND AGREED: THE CITY OF CLEARWATER See attached signature page. By: Name: Title: Dated: April �� , 2012 ACCEPTED AND AGREED: PHILLIES FLORIDA LLC, a Delaware limited liability company By: The Phillies, , a Pe s va limited partnership, its ole b�r By: ` Nam� Title: Dated: April �, 2012 ThinkRetail. CreateValUe. 3300 Enterprise Parkway = Beachwood Ohlo r 44122 listed NYSE" p. z� 6.�55.5500 � r zi 6.�55.i 500 = www ddr.com Countersigned: — c�P�r� � n t�'t��l George N. Cretekos Mayor Approved as to form: ��^- , � ,�,,� Laura Mahony Assistant City Attorney CITY OF CLEARWATER, FLORIDA By: .' .�� , liam B. Home II City Manager �1� ��,Of ryF^ Attest: �� Y �r�� v `�\ � t,�' �@�1 c. � �Z�-�� L �) �'� t'° _ � ,, h� Rosemarie Call City Clerk , ;'"� �� . � F. �_� ��.. � � - . , - � / /� � N . io I '� I s � I i � 2 = I FLOOR AND U� � DECOR O BS.BBB SF � V � i p � 3 Z j LA FITNESS ' OPEN �ACE =J6.000 SF � CWRTS =9�000 SF °� = a � a� � �� v�a V� BRICHTHOUSE FlELD � d L � Q a c � L F- � a 1� �.......�...... =�� : ��nm� �Fnm� � — � ' I �� r� � — I� ° Ho�%�ru� � rm DREW ST , �— lV Q CLEARWATER COLLECTION 21688-21800 US 19 N Clearwater, Florida 33765 latlludr.27.9698, LongiWde:82J317 Z� o+ �, � TENANT INDIX REVISION oa.z�., , 2 I�OOR AND DECOR 65,688 SF 4 BW3 � 376�35 SF 90 AV� 9�,650 SF U2 KANES FURNIIURE 7,700 SF � E"� � � � x �C W \;;�� I / I I I DEVELOPERS DIVERSIFIED REALTY° ssoo �.rn.r rrr..� �..d�..wa, o►� w�u .xs,. a,..>,,...00 � a,..>...,.00 -, D, =� `b, �op Exhibit B Og-326448 SP?- 3-2002 �'53�� P INE� I��uN This instru�ment prepared by: Joan M. Budd, Esq. Senior Counsel 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 ;:r�� ;� , :3 A�� :,', A>;�T KARI.EEN f. DE BLAI(Fk, . CLERK �(�T PIt�Ll.f�l�'�1�0.oPY 5C190499 0�-fl3-2002 51 EAS-FIO� DfPQT (�806 RE(�It� 022 Pf�S DOC STAMP - DR2].9 OFFICIAL (�PIES CERTIFCATIO�! 15:59:29 JTF 1 St00.50 3 527�475.00 5 �22.00 6 51.00 TOTAI.:. 527,598.50 (�CK AMT.TEt�ERED: . SP7�598.50 CFIA�E: $.OQ BY � DEPUTY C�( ;�� .�G COVENANTS, RESTRICTIONS, GRANT OF EASEMENTS AND �;S D�i219�S •� MODIFICATION OF CLEARWATER COMMONS `�S SHOPPING CENTER OPERATION AND RECIPROCAL "� - EASEMENT AGREEMENT �=CES �,",TF � REV �� THIS COVENANTS, GRANT OF EASEMENTS AND MODIFICATION OF TOTAt�� _.CLEARWATER COMMONS SHOPPING CENTER OPERATION AND RECIPROCAL � EASEMENT AGREEMENT {hereinafter referred to as this "Modification AgreemenY') is � made and entered into by and between Home Depot U.S.A., Inc., a Delaware corporation (hereinaf�er "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 "Cit}��, 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"� coUectively own all lands subject to that certain Operarion 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 Boqk 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 Basement 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 Easeinent Agreement recorded in Official Records Book 9664, at Page 451, all in the Public Records of Pinellas County, Florida (coll.ectively the "REA'�. Each Owner xepresents and affirms that it s�2�ioz � PINELLRS COUNTY FLA. OFF,REC,BK 12196 PG 392 owns iis 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 � azeas) and an outfield berm seating area accommodating approximately 1,000 fans for on-grass seating and including clubhouse facilities, batting tunnels; team office space for The Phillies, tocker rooms and other elements of such ballpark and stadium, (b) one practice infield, (c) on-site parking areas, and (d) other facilities such as a restaurandsports bar, a souvenir/sporting items store, a health/fitness facility, and other facilities of like vr similaz 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 azea, to enter into a long term agreement with the City for the financing, development, construction, completion, use and operation of the Commur�ity 5ports Complex. C. The Owners and the City aze 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 aclaiowledged, 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 alt of the lands owned by Home Depot subject to the REA (the "Home Depot TracY�, the Owners, for themselves, and their successors and/or assigns, including without limitation their respecdve 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 � P INELLf±S COUNTY FLR . OFF .REC .BK 12196 PO 393 elements or appurtenant facilities, including without limitation signage, on the Home Depot TracG 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 Horne 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 Tazget 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 o fl that certain "Agreement for Development of Commwnity 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, na future amendment thereto shall substantially or materially change the contemplated uses of fhe 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 agee 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 seruice 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 foliowing 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 Communiry Sports Complex) which can be heard or smelled outside of any building; , PINELLRS COUNTY FLA. OFF , REC .6K 12196 PQ 394 (b) Any operation primarily used as a warehouse operation and any assembling, manufacturing, distilling, refining, smelting, agriculturai, or mining opera.tion; (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 duripg periods of pemutted construction, reconstruction or maintenance); , (e) Any 'dumping, disposing, incineration or reduction of garbage (exclusive of ga.rbage compactors servicing the Community Sports Complex or located in the rear of any building located on the Remaining REA Tracts); ( fl 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 piant 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 ovemight facilities located within and used for Community Sports Complex related puiposes; (j) Any veterinary hospital or animal raising 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 paraphemalia related to the use or production of illicit drugs such as a"roach clip", "water pipe", 4 PINELLRS COUNTY FLR. OFF.REC.BK 12196 PQ 39S "bong", "toke", "coke spoon", "cigarette papers", "hypodermic syringe", or any books, magazines, newspapers or video tapes which would be obscene under ttie prevailing law; .(o) 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�?rking in any areas of the Remaining REA Tracts during such events; provided, however, the foregoing pazking restriction shall not be construed to prohibit any bonafide patron of any commercial facility located on the Remaining REA Tracts from pazking 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 PoinY') from Coachman Road, Drew Street and U.S. P I REC BK 12196Y PGLR 396 OFF , 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 Pazking Lot (as defined in Section 6(A) hereo fl. The foregoing grant of the Community Sports Complex EasemenE 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 pazking 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, ;ncluding without limitatiott on the Home Depot Tract) over and across the Community Sports Complex Easement or any other parking and driveway azeas 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 eacl� 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 altemative 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 conCrary 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 rec�uires vehiculaz traffic to either turn right into the Home Depot Tract or turn left into the Remaining REA Tracts af�er crossing the access bridge. PINELLRS COUNTY FLR. OFF , REC . BK 12196 PO 397 5. UTILITIES. (A) Each Owner hereby grants and conveys to each other Owner non-exclusive perpetual easements in, to, over, under, along and across those portions of the Common Area, including without limitation those on the Home Depot Tract, as aze necessary for the grantee Owner to continue to use, maintain, repair and replace all lines or systems for utilities ser�icing 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 pemuts) with respect thereto and shall cause all work in connection therewith (including general clean-up and proper surface and or subsurface restoration to at least the quality and standazd that existed prior to such work) to be completed as quickly as gossible 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 sanitaty 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 onty), the City and The Phillies shali use commercially reasonable efforts to design and construct the Community Sports Complex in a manner that any existing, additional or replacement utilities aze, 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 reloca#ing 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 ihe 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 . PINELLRS COUNTY FLR, OFF .REC ,BK 12196 PCi 398 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 connection 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 standazds that equal or exceed those originally used; (iv) if required by the applicable utility company or govemmental authorities, shall have been approved by the utility company and the appropriate govemmental 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 otherwise 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 govemmental or quasi-govercunental 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 azea 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 Own.ers. (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 not:ce to the grantor Owner of its election to continue the use of such easement, in which event such easement shall not terminate. PINELLAS COUNTY FLA, OFF.REC,BK 12196 PO 399 (F) For purposes of this Section 5, the term "Owner" shall be deemed to include the City, as successor in interest to Home Depot with respect to the Home Depot Tract. 6. � PARHING; 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 Iocated 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, berming, curbing, or other vetucular barriers in the manner and locations shown on the drawing attached hereto as Exhibit A(the "Parking Site Plan"). The area of the Home Depot Tract south of the southern face of the existing building is hereinafter referred to as the "Parking LoY'. The City and The Phillies agree, in gaod 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 Pazking 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 Community 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 ar.y ingress and egress from Drew Street for vehicular access, except for those pazking in the Parking Lot. Such preventive efforts shall employ (by way of illustrations) the use of advance pedestrian and traffic control planning, directional signage, bamcades and pazlcing personnel, security, or police officers. If, after an event, the Owners of . the Remaining REA Tracts have concems 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, sha11 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 sweeg all sidewalks, drives and parking azeas 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 Corrur�unity Sports Complex event, the Common Area and Access Points to the extent necessary to return same to a clean and orderly conc�ition. PINELLRS COUMTY FLR. OFF.REC,BK 12196 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 access 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 availabie 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 Pazking 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 Rernaining 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 oz 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 govemmental 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 Ph�llies sblely to evidence joinder of the City and T'he Phillies and concurrence herewith, and their lo PINELLAS CCUNTY FtA, OFF,REC,BK 12196 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 ModiScation Agreement shall cease and temunate 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 shall 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 conshved 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 Phill�ies (as applicable depending on wluch entity or enrity's contractors are 'performing the work) shall obtain or require its contractor to obtain and thereafier 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: (n 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 �! PINELLAS COUNTY FLR, OFF , REC , BK �2196 PO 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 bodil�• injury and property damage). (ii) $5,000,000 for Personal Injury Liability. (iii) $5,000,000 aggregate for Products and Completed Operations; and (iv) $5,004,000 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 $5,040,000 combined 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. (� 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 10(A)(na(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 Fiorida 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)(n(a) and builder's risk insurance on the project in ]2 PINELLRS COUNTY FLA. OFF . REC , BK 12196 PO 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 requued 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 t1�is 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 tem�s 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 VIII 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 Secrion 10(A} shall name each Owner of the Remaining REA Tracts as an additional� insured. Each party required to fumish insurance pursuant to the Section 10(A) shall furnish or cause to be fumished 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, tlus pazagraph 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 eniitled 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 PiNELLAS COUN7Y FLA, OFF,REC,BK 12196 PQ 404 the defauiting party with a commercially reasonable time after request, and (y) have alI remedies available at low or in equity. ' 11. CONFLICTS/RATIFICATION. If there is any conflict between the provisions of the REA and this Modification A�eement 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 Modificarion Agreement as satne 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. Excegt 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 effecf 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 execurion of tlus 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: NUTICES. 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, retum receipt requested, postage prepaid and addressed to the then designated acldress of the pazty intended. The a� of the parties strall be: Tar�et: Targ� Coiporation . �Y�� Ath�: Pro�ertyA�on 1000NK011etMall M�polis, MN 55403 Sembler: The Sembler Company Gregory S. Sembler 5858 Central Avenue St. Petersburg, FL 33707-1728 14 With a copy to: Ruden McClosky 401 E. Jackson Street, Suite 2700 Tampa, FL 33602-5226 � Attention: James B. Soble, Esquire Home Depot: With a copy to: With a copy to: Ti�e City. With aa�pyto: 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, 20`� Floor Atlanta, GA 30339 Alston & Bud LLP Daniel R. Weede One Atlantic Center 1201 West Peachtree Street Atlanta, GA 30309 City of G7�uwata-, Floaida 112 S. OscevlaAvauie 3rd Floor Clearv�aier, FL 33756 Attention: PamelaAldn, CityAttomeY City ofCleacwata, Fbrida 1900 C�rand Avenue Clea�water, FL 33756 Attention: I�evin Ihmbar, D'uector, Pazks & Rec�atian ThePhillies: Veterans Stadium P.O. Box 7575 Philadelphia, PA 19101 Attention: David P. Montgomery, President and Attention: William Y. Webb, Vice President, General Caunsel and Secretary ' ls PINEL�AS COUNTY FLR. OFF . REC . BK 12196 PO 405 � PINELLRS COUNTY FLR, 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 A�eement. 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 deerned delivered and thereafter recorded in conjunction with the City's purchase of the Home Depot Tract from Home.Depot. 17. RECORDING. This Modificati�n Agreement shall be recorded prior to any deed, assignment or other conveyance document from Home Depot to the City in connection with the sale of the Home Depot Tract (as hereinafter defined) to the City. 18. MODIFTCATION; TIME. Except as expressly modified herein, the REA shall remain in full force and effect and is binding upon the parties hereto, theu heirs, successors, legai representatives ar�d assigns. Time is of the essence of this Agreement. 16 pINELLRS COUNTY FLA. OFF .REC .�K 12196 PO 40? SIGNATURE PAGE FOR COVENANTS, GRANT OF EASEMENTS AND MODIFICATION OF CLEARWATER CUMMONS SHOPPING CENTER OPERATION AND RECIPROCAL EASEMENT AGREEMENT IN WITNESS WAEREOF, the parties hereto have signed and sealed this Modification Agreement as of the date first above written. ' �i(l > . Witness: V i C�O� i 4 Gv; //, 4�9 Witness:� C�DO V� a ...�;-�.� � l �- �(s'� I.� �� rt^" _ � /.n �` ,J�� : Fn�al�n�•`•a �' Y /'(S�� , � (COR:PORATE SEAI,�� ; ��AL = ;; � �i � � :� � � �r�. a+��..... • ' �, �@� l;, . . STATE OF GEORGIA = � -- COUNTY OF HOME DEPUT: HOME DEPOT U.S.A., INC., a Delaware corporation By: Its: Snn�or C�rporat� Cour►sel - Real Eatab , Attest: r �yL�� Its: e 0 t' 8 . Assistant Secretary The foregoing instnzment was acknowledged before me this day of � 2002 by_�__ f� ��k� - as . - of HOME DEPO U.S.A., INC., a Delaware corporation, on beh f said corpo ation. � AO�J�,q� S�„ �� NOTARY PUBLIC • GIend3 �d. ItY;ggir�s � i'�ryP��cS�oiGecr�a � ��y Co:�mis: cn Expirr�ss f 2-27-03� (SEAL) My Commission Expires: /Pi _�� s-t � PINELLRS COUNTY FLA. OFF,REC.BK 12396 PO 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 Modificarion Agreement as of the date first above written. (CORPORATE SEAL} STATE OF MINNESOTA COUNTY OF TARGET: TARGET CORPORATION, a Minnesota corporation, formerly laiown as Dayton Hudson Corporation By: I� ice President T rg t Sior�: Attest: Its: rri Simard Assistant Secretary Target Corporation The foregoing instrument was ac owledged before me t's day of �1�, 2002 by �A_� R, p T� Di _ as� '' , r�; of T GET CORPORATION, a Minnesota corporation, formerly known as Dayton Hudson Corporation, on behalf of said corporation. ■ , NOTARY P LIC TAMMY A. MOSHER NOTARY PUBLIC•ANNNESOTA ` I^ ,,, ��( �� uyconrn�on�l�n,��,soos My Commission Expires: `-�«/' . (SEAL) s-2 PINELLRS COUNTY FLR, OFF,REC,BK 12�96 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. Witness• �• �� Ta,,, Svbl� Witness: � �� I'��2�t SSr� r3�cit,� (CORPORATE SEAL) STATE OF FLORIDA COUNTY OF SEMBLER: CLEARWATER COLLECTION ASSOCIATES, LTD., a Florida limated partnership By: Sembler Enterprises, Inc., a Florida corporation, its sole General Partner By: � �� . Its �� i e.e_ Pr�i i c�a.�" Attest: Its: The foregoing instrument was acknowledged before me this. 24� day of �l�S� , 2��2 by��.� •$�i't,(�Lt}',�.. as�.� G�B�.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 . OT Y PUBLIC � . . .............� . .��• • . . /�� • ./4i�� :.i . � . � �� • � � � : "�• • 11 � � � • • • • � � r �..� •• • ^ ./ • ��...�.��. " " � �• S-3 PINELLAS COUNTY FLR, OFF,REC.BK 12196 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. Approved as to form: CITY OF CLEARWATER, FLORIDA, a municipal corporation of the State of Florida By• Willian�B�ortFie; II City Manager Attest: � � �_ By By: Pamela K. Akin Cynth'a . Goudeau City Attorney City r STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledg b� , 2002 by and as OF CLEARWATER, FLORIDA, as municip corporation (SEAL) . e this O`7 day of � o the CI ie State of Florida. �T�Y P�L� � 0� e,� 15e� , S My Commission Expires: "'+ y� Denise A Wilson :�� ;n MYCOMMIS�ON# CC91410T EX%RES ;?�� x,� �a zoa a�' eot+oEOmputROrF�wwsunaHCEU+c Pf � •,. S-4 P INELLRS �2i96 p�LR411 OFF , REC , BK • SIGNATURE PAGE FOR COVENANTS, GRANT OF EASEMENTS AND MODIFICATION OF CLEARWATER COMMONS SHOPPING CENTER _ OPERATION AND RECIPROCAL E.ASEMENT AGREEMENT IN WITNESS WHEREOF, the parties hereto have signed and sealed this Modification Agreement as of the date first above written. � THE PHILLIES THE PHII.LIES, a Pennsylvania limited partnership By: a� w�t��s: � � its �.�. ��r� � o�.,r � � , , w��s: � ,�• att�c: ,LG[� Its: SEC ��y STATE OF '��NSYI.VRN�A COUNTY OF �A`h�.AflEL�PI�tA The foregoing instrument was acknowledged before me this o� g day of , 2002 by �` l t� c i c t� � as General Partner of THE HII,LIES, a Pennsylvania limited partnership, behal of the partnership. � d- /�� NOTARY UBLIC (SEAL) My Commission Expires: ��,�l�i �, o�4�S � S-5 �� sea� w s. Rossen. r�o�ay ��c cd�y ot P � County My Cortwni.gsio� May 2� 2005 Member� Pe�x�ylv�a Assoclatlon d Nofarles + ' PINELLRS COUNTY FLA. YETER t II[tRS wa�t a.�nc� m �rY Mnsor�RY BLDG. iR1? STORES" :�K �� ss■ E- PROJECT BOV► /_��__ +[ raoc[ ��t cae. e�occ x[x STnT� .J� -�_O�+�C!A • PMJEU.ASCUUN7Y �� I hnt.yLu ^grii�y th�t tho foisgoing is rt ,��,....�A��t� a�nic oary �s �hrt sam3 appear :nri0f�g �* ` : 6�i. Ir.. ' � �; ..:. . :: rhic r . � i � . : , �(� Z-- �� : :�� T'h�s�.. ��' � . — -. %r•., � t:i1�':t �'J.c.�t+��i.,1KEi{ '�1�'/ � l 1('` I.fIC.1.�� l.l),�!! '�s�o'uNN;,.= ' ( '��... .:,,;. �� ' lJ�!�. ::,.. ... , W -� � �' U��{y r,i�� L EXHIBIT A PARKIl�iG LOT SITE PLAN This 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 441 �4 (216) 363-4500 FIRST AMENDMENT TU COVENANTS, RESTRYCTIONS, 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 M4DIFICATION OF CLEARWATER COMMONS SHOPPING CENTER OPERATIONAL AND RECIPROCAL EASEMENT AGREEMENT ("Amendment") is made and entered into by and among Inland Southeast Cleaiwater Develo�ment, L.L.C., a Delaware lirnited liability company, n/k/a/ DDR SOUTHEAST CLEARWATER DEVELOPMENT, L.L.C., a Delaware limited liability company ("DDR"), the CITY OF CLEARWATER, �'I,ORIDA, a municipal corporation (the "Cit}�') and PHILLIES FLORiDA LLC, a Delaware linnited liability company ("Phillies Florida"), successor (by assignrnent) to The Phillies, a Pennsylvania limited partnership, ("The Phillies'�, as of the _�,�day of , 2009. RECITALS WHEREAS, DDR owns the real property described on Exhibit "A", attached hereto and made a part hereof (the "DDR Property"); WHEREAS, the DD�Z Property is subject to that certain Operation and Reciprocal Easernent 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 certa�in, Second Amendment to an Operatian and Reciprocal Easernent Agreement recorded in Of�cial Records Book 6921, at Page 129, (3) that certain Third Amendrnent to an Operation and Reciprocal Easeznent 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 tb.e 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 AgreemenY'): (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 �rvperty; WHEREAS, Phillies k'lorida, is the successor in interest to, ar�d assign.ee 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 DDit, an easernent upon a portion of the City Property for purposes of ingress, egress and parking; and WFIEREAS, the City an.d Phillies Florida desire to obtain from DDR, and DDR desires to grant to the City and Phillies Florida, an easement upon a portion of tkae DDR Property for puzposes 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 aclrnowledged, the parties hereto agree as follows: 1. '1'he foregoing recitals are incorporated by this reference for all purposes. 2. The Modi�cation Agreement incorporate therein the defined provided for in this Amendment. is hereby modified and amended so as to ter�ns 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 andlor assigns (collectively, the "Cornmunity 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 Clearwatez� Conun.ox�s Shopping Center Operational and Reciprocal Easement Agreement [the "First AmendmenY'] dated on or about , 2009, among DDR, the City and Phillies Florida, which modifies and amends this Modification Agreernent) 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 Az-ea"). DDR for itself and its successors and assigns hereby grants to the City and Phillies Florida for the use of the Community Sports Cornplex 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 cointnon with others entitled to use the same, a non-exclusive perpetual easement for (i) vehicular and pedesfian passage, ingress and egress in, on, over an.d across the City Property; and (ii) the parlcing of vehicles in and on the partions 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 DY7R fails to rnaintain a ten►ant 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 twenrieth (20�h) anniversary of the date that the First Amendment is recorded in the Public Recozds of Pinellas County, Florida, but only if, at the time of delivery of the Ternunation Notice (hereinafter defined), both of the following conditions �xist: (a) the City has undertaken the redevelopment of the City Property for a use other than a sports cornplex and, as part of such redevelopment, the City needs to use the DDR Easernent 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 fiReen (15) stores in the southeastern United States. In order for the City to exercise the foregoing right to terminate the DDR Easennent, the City must deliver written natice thereof ("Termination Notice") to DDR by certified mail, retum 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. Furthez, DDR shall procure and maintain during the term of the DDR Easement, Comprehensive General Liability Insurance which shall provide: „ , a. Minimum coverage limits of $1,000,000 Per Occurrence Combined Single Limit for Bodily Tnjury 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 Agreernent. 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 Ris1c Management Qffice and to Phillies Florida. d. DDR's obligation to carry the insurance provided herein may be brought within the coverage of a"blanket polic}�' 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 separatc policy meeting all other requizements of this Agreement. e. Certificates of Insurance mesting 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 UDR Yroperty and the City Property, inclusive, without limitation, of the Restricted Farking A.rea, shall not be permanently segregated, by fencing or other permanent barrier, from tb.e 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 aze 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, rnay 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 Pazking 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 ta the City and Phillies Florida the irrevocable license so to do. DDR and the DDR Parties shall not use, oz 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 Commuluty 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 Praperty, as well as the other pa.rking 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 thc 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 £or those portions of the Restricted Pazking Area located on the DDR Property. Such preventative efforts shall ernploy (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 concems or requests additional enforcement, the City and Phillies Florida agree in good faith to reevaluate the parking arid traffic control measures to be taken in the future and consider (but not be bound by) the concez-ns and suggestions made in good faith by the Owner of the DDR Property. 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 ar The Phillies shall, in a commercially reasonable fashion and in compliance with the standards of the Sports Cotnplex 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, wi.thout limitation, the Restrieted 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 peziuds 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, drives, and pazking 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 A�rea, 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 circurnstances 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 atta.ched hereto as Exlubit "C" is hereby substituted in its place. 8. The term "DDR Parties" shall mean (a) DDR's ennployees, contractors, agezrts, 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 "Rernaining 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 rnean "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 Axea 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. I l. Except to the extent modified by this Amendmen.t, a�l other tercr�s and conditions set forth in the Modification Agreement shall rernain in full force and effect. In the event of a conflict between the terms and conditions of this Amendment and the tertns and conditions of the Modification Agreement, this Amendment shall prevail. 6 IN WITNESS WHEREOF, DDR the City and Phillies Florida have executed this Arnendment as of the date first set forth above. WITNESSES: DDR SOUTHEAST CLEARWATER DEVELOPMENT, L.I,.C., a Delaware limited liability company By.,;� Timothy J V _ _ (�t�,(Z{�1.� S�N/�. (Print Name) Q. . C {� �;s ,�. ( �� ` (Print Name) STATE OF OHIO ) } SS: COUNTX OF CUYAHOGA ) eciitive Vice President �_ �FORE ME, a Notary Public in and for said County and State, personally appeared � Y J. known to me to be the ��t�.v�i d-e- (��-c {�.-ts: d-t.�.�'�� of DDR Sou east Clearwater Development, L.L.C., Qie limi�ed liability company that executed the foregoing ins�ument, wha acknowledged that heJshe 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 lunited liability company. IN WITNESS WHEREOF, I have hereunto set my hand and afficial seal at Beachwood, Ohio this �"dday of %rI �� , 2009. OER � ot �hb $�.�nmM yoires ► �, �y �bi�� CYTY OF CLEARWATER, FLORIDA Countersigned: . . BY� - By: i ame: F�ank V. Hibbard Name: William B. Home II Its: City Man � Its: Mavor APP VE AS TO FORM: ura Mahony Assistant City Attorney STATE OF FLORIDA ) COUNTY OF PINELLAS ) ATTEST BEFORE ME, a Notary Public in and for said County and State, on the �� day of 2U09, personally appeared Willun B. Home II Imown to me ta be the City ger of the City of Clearwater, Florida, a body corporate and politic of the State of Florida, on behalf of the City. HeJshe � is personally known to me or O has produced _ as identification. (SEAL) ��t�- Notary Public i�,�1,� DIANE E MANNI �� MYODMMI$SION+MDD326033 STATE OF FL012IDA. ) e► ��a� ��. a zo�o t�f s�o�aa Raw. r�owr e.v�..o� COUNTY OF PINELLAS ) BEFORE ME, a Notary Public in aad for said County and State, on the � day of 2009, personally appea�red Franlc V. Hibbard known to me to bc the Mayor of Crty of Clearwatex, Florida, a body corporate and politic of the State of Florida, on behalf of the City. HeJshe �3( is personally known to me or 0 has produced as identifiication. (SEAL) �� Notary Public r DIANE E MANM �g MY COMMI4SION a► DDSJW33 �Ai� E7(PIRPS: Mat.6.�110 1107) aeefils3 Flona� r�lowy s.�QOm ATTEST: t✓i GGiA A1 �f. l�/c l.38(Print Narne) s.e. rr° t scc y CQMMONWEALTH OF PENNSYLVANIA } ) SS: COUNTY OF PHILADELPHIA ) PHILL�ES FLORIDA LLC, A Delaware limited liability company By: THE PHILLIES, a Pennsylvania limited partners i, Its sole member By: �� 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 ]imited liability company, being thereunto duly authorized, and that the same is his free act and deed and the free act and deed of satd li.zn,ited liability company. IN WITNESS WHEREOF, I have hereunto set my hand and official seal at Philadelphia, Pennsylvania th�is � day of /Y} A,�! , 2009. �'� = �- - ��=; - `�_�'j ::� � � = - :-� :� _ y_� y.I ' ✓" � J - t � . . � ' •,� � � � ��/�� . � � � con+►�wu.�rH oF P�nts�v�ww �4 � WenOy S. Ra�elt, Nofwy PubMe � Ga�� 1�sfr �. 20� AAetnba►, PennsyNanFa Aseoeiafion d NoWies EXHIBIT A Parcel 1 Lot 4, THE CLEARWATER COLLECTION SECOND REPLAT, a subdivision according to the plat thereof recorded in Plat Book 10?, Page 24 of the Public Records of Pinellas County, Florida, LESS and except those portions thereof conveyed, taken or used for U. S. Highvvay 19. Parcel2 Lots 2 and 3, THE CLEARWATER COLLECTION SECOND REPLAT, accordin�; 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 Boak 107, Pages 24 and 25, of the Public Records of Pinellas County, Florida. io , r EXHIBIT B Lot l, THE CLEARWATER COLLECTION SECOND REPLAT, according to plat thereof recorded in Plat Book 107, Pa�es 24 and 25, of the Fublic Records of Pinellas County, Florida. LESS AND EXCEPT that portion of said Lot 1 taken in fee sirnple, designated as �arcel 120 by Case No. (Eminent Domain) 99-4965-C1, as evidenced by tl�at Lis Pendens recorded in Ofiicial 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 I O'714, Page 620; Stipulated Order of Taking and Partial Final Judgment recorded in Official Records Book 10714, Page 624; Stipulated �rder of Taking and Final Judgment recorded in Official Records Book 10714, Page G28; Qrder of Taking recorded in Official Records Book 10741, Page 2441; Stipulated Final Judgment recorded in Official Records Book 1161, Page 1495; and Amended Order of Taking and Stipulated Final 7udgmenC recorded in Official Records Book 11704, Page 1408, Public Records of Pinellas County, Florida. tt , , •.�. . EXHTBIT C � ,_� E . , �, �i�� __ �. • � .n DiUiN 57RFi'C �2 �,�» �� F �k WS Jlth�l A. +��iwa Doc = _. = Vet 3