ACCESS AGREEMENTACCESS AGREEMENT
r THIS ACCESS AGREEMENT (the "Agreement") is made and entered into as of
, 2018 (the "Effective Date") among City of Clearwater, Florida (herein
referred to as "City") and NHC-FL8 L.P. ("NHC").
WHEREAS, City is the current owner of certain real property described in Exhibit "A"
attached hereto located within the City of Clearwater, Florida ("Property");
WHEREAS, the Florida Department of Environmental Protection ("FDEP") collected
soil and groundwater samples on the Property in February 2018 for analysis, the results of which
identified elevated concentrations of select metals including antimony, arsenic, and lead on the
Property;
WHEREAS, NHC owns and/or operates the Silver Dollar sport shooting range and club
on certain real property located adjacent to the Property and FDEP has alleged that activities on
the Silver Dollar sport shooting range and club may be the potential source of the elevated
concentrations of select metals detected by FDEP to be present in soil and surface water at the
Property;
WHEREAS, NHC does not have an easement, leasehold, or other legal right of use of
the Property for any purpose whatsoever;
WHEREAS, in response to FDEP's request, NHC retained an environmental consulting
firm, trammco environmental solutions ("Consultant"), to perform additional soil, groundwater
and surface water sampling on the Property (the "Work"), subject to NHC obtaining a temporary
right of access to the Property to perform the Work;
WHEREAS, Consultant transmitted a Proposal for Additional Soil and Surface Water
Sampling, dated June 18, 2018 ("Proposal"), to further evaluate the presence of impacts to soil,
groundwater and surface water at the Property;
WHEREAS, by letter dated July 9, 2018, FDEP provided comments to the Proposal and
directed NHC to proceed with the additional sampling, including the additional sampling
directed by FDEP in the July 9, 2018 letter;WHEREAS, NHC seeks access to the Property to
perform the Work; and
WHEREAS, City is willing to grant NHC access to the Property to perform the Work,
subject to the terms and conditions of the Agreement;
NOW, THEREFORE, for and in consideration of TEN DOLLARS, the mutual
promises and obligations set forth herein, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby,
City hereby agrees to provide access to the Property upon the following terms and conditions:
1. Access.
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City hereby authorizes NHC and its consultants/subcontractors to enter upon the Property
to perform the Work approved in writing by FDEP. At least five (5) days prior to entry onto the
Property, NHC shall provide City with a copy of the final work plan for the Work and proof of
FDEP's approval of the final workplan. The right of access granted herein is subject to all of the
terms and conditions of this Agreement, including, but not limited to, the following:
a. City's grant of access is limited to the Property between the hours of 7:00 a.m.
and 7:00 p.m.
b. The City and/or its representatives shall have the right to be present at all times
during the performance of the Work.
c. City and/or its representatives shall be entitled to observe, log and photograph all
Work performed on behalf of NHC under this Agreement.
d. City and/or its representative shall be entitled to split samples for any
soil/groundwater/surface water sample collected on behalf of NHC.
e. The Work shall be performed in a manner that minimizes the interference with
City's use of the Property.
f. NHC, or its consultant/subcontractor, shall erect temporary signs, barricades or
fences to prevent unauthorized persons from entering or drawing near areas where assessment or
drilling activities or other activities are occurring that involve the use of equipment or that could
be disturbed or interfered with by third parties.
g. There shall be no discharge of drilling fluids, water or soils onto the Property; any
drilling fluids water and/or soil cuttings generated by the Work shall be handled at the point of
generation to prevent any release onto the Property.
h. The first five (5) feet of any soil boring installed on the Property shall be done by
hand auger to avoid any potential damage to buried utilities on the Property.
i. NHC shall perform the Work in compliance with all applicable laws, rules and
regulations, and will obtain all permits necessary for the conduct of the Work.
�. NHC shall be responsible for locating and marking utilities on the Property prior
to any invasive work on the Property.
k. All investigative -derived materials resulting from the Work shall be handled and
disposed of in accordance with applicable laws, regulations and procedures. All investigative -
derived materials shall be removed from the Property upon completion of the actual field work
performed on the Property; under no circumstances shall investigative -derived waste be left on
the Property overnight.
1. NHC shall provide City with copies of the laboratory reports for all samples
collected from the Property relating to the Work within five (5) days from receipt of the
validated laboratory reports.
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m. NHC shall provide City with a copy of any report or other written transmittal
intended to be submitted to FDEP describing the results of the Work at least five (5) days prior to
the date that such communication is provided to FDEP. Copies of all other written
communications between NHC and FDEP relating to the Property shall be provided to City at
the same time that they are sent by NHC to FDEP or received by Accessing Parties from FDEP.
n. Upon completion of the Work, NHC shall restore the Property to a condition as
close as reasonably possible to the condition existing prior to the Work.
2. Indemnification.
a. NHC shall fully indemnify, defend and hold harmless City, and its employees,
representatives, and consultants, from and against any and all claims, suits, damages, liabilities,
judgments, fines, attorneys' fees, penalties, losses, costs or expenses arising out of or caused by
the Work or NIIC's breach of this Agreement; provided, however, NHC shall have no obligation
to indemnify or hold harmless City, or its employees, representatives, or consultants, against that
portion of any liability to the extent caused by, resulting from, or arising out of the negligence or
willful misconduct of City, or its employees, representatives, or consultants.
b. The indemnity provided for above shall include, but not be limited to, liability for
damages for which NHC is responsible resulting from the personal injury or death of an
employee of NHC, or its consultant/subcontractor, regardless of whether NHC, or its
consultant/subcontractor, has paid the respective employee under the Workers' Compensation
Law of the State of Florida or other similar federal or state laws for the protection of employees.
3. Insurance. NHC shall require any consultant/subcontractor retained by NHC to perform
the Work to purchase insurance from and maintain insurance with a company or companies
lawfully authorized to do business in Florida, with current ratings from A.M. Best Company of
A- VIII or higher, in which City is named as an additional insured, and which includes coverage
of at least the following types and stated amounts on a project basis for the duration of the Work:
a. Comprehensive General Liability insurance in an amount not less than $2 million
per occurrence.
b. Professional Errors and Omissions insurance in an amount not less than $2
million.
c. Contractor's Operations and Professional Services environmental insurance, (or
Contractor's Pollution Liability insurance) including coverage for both sudden and non -sudden
pollution conditions, with limits not less than $2,000,000 per claim and $2,000,000 total for all
claims. The policy must include coverage for bodily injury, property damage, cleanup costs (on-
site and off-site), and defense costs. The policy may be written on a claims -made policy form.
Any deductible or self-insurance retention contained in the policy shall not exceed $250,000.
d. Workers Compensation Insurance, including Occupational Disease Coverage, in
accordance with the requirements of the applicable laws of Florida.
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e. Employer's Liability Insurance, with a limit of $1,000,000 per incident,
$1,000,000 aggregate, with a standard All States endorsement.
f. Automobile insurance for owned, non -owned, or hired vehicles, with limits for
public liability of not less than $1,000,000 per person per accident or occurrence for bodily
injury and limits of not less than $1,000,000 per accident or occurrence for property damage.
Any transporter whose scope of services includes the transportation of any waste materials
(including wastes characterized as hazardous or special wastes) shall have and maintain
automobile liability coverage with limits of not less than $5,000,000 combined single limit, and
including both the MCS -90 and Insurance Service Office ("ISO") CA 99 48 (or its equivalent)
endorsements.
4. Notices. All notices, demands or requests provided for or permitted to be given pursuant to
this Agreement shall be in writing and shall be deemed to have been given after depositing the
same in the United States mail, postage prepaid and registered or certified with return receipt
requested; after depositing the same with an overnight express mail provider; or after hand
delivery; a courtesy copy may be delivered via e-mail, if desired by the sender, but not as a
replacement for the above methods of delivery; addressed as follows:
If to City:
With a copy to:
If to NHC:
With a copy to:
[GM 1 7-1 3 1 3-097/22 5 77 7/2]
Laura Lipowski Mahony
City of Clearwater
Assistant City Attorney
City Hall
112 South Osceola Avenue, 3rd Floor
Clearwater, FL 33756
(727) 562-4015
Laura.Mahony@myClearwater.com
William L. Pence
Baker Hostetler
200 S. Orange Ave, Suite 2300
Orlando, FL 32801-3432
(407) 649-4095
wpence@bakerlaw.com
Stanley L. Martin, Esq.
Vice President — Legal
5100 W. Lemon Street, Suite 109
Tampa, FL 33609
(813) 282-5932
Stanley_Martin@equitylifestyle.com
Jacob T. Cremer, Esq.
Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
401 East Jackson Street, Suite 2100
Tampa, FL 33602
(813) 222-5051
jcremer@stearnsweaver.com
City and NHC may designate any further or different addresses to which subsequent
notices, certificates or other communications will be sent.
5. Facsimile as Writing. The Parties expressly acknowledge and agree that, notwithstanding
any statutory or decisional law to the contrary, the printed product of a facsimile transmittal will
be deemed to be "written" and "writing" for all purposes of this Agreement.
6. Assignment. The rights of the parties under this Agreement are personal and may not be
assigned without the prior written consent of the Parties hereto. Subject to the foregoing, this
Agreement will be binding upon and enforceable against, and will inure to the benefit of the
parties hereto and their respective heirs, legal representatives, successors (including successors in
title) and permitted assigns.
7. Headings. The use of headings, captions, and numbers in this Agreement is solely for the
convenience of identifying and indexing the various provisions in this Agreement and will in no
event be considered otherwise in construing or interpreting any provision in this Agreement.
8. Non -Waiver. Failure by any Party to complain of any action, non -action or breach of any
other Party will not constitute a waiver of any aggrieved Party's rights hereunder. Waiver by
any Party of any right arising from any breach of any other Party will not constitute a waiver of
any other right arising from a subsequent breach of the same obligation or for any other default,
past, present or future.
9. Rights Cumulative. All rights, remedies, powers and privileges conferred under this
Agreement on the Parties will be cumulative of and in addition to, but not restrictive of or in lieu
of, those conferred by law.
10. Applicable Law. This Agreement and its attachments will be governed by and construed
under and in accordance with the laws of the State of Florida. The Parties consent and agree that
Pinellas County, Florida, shall be the exclusive, proper and convenient venue for any legal
proceeding in federal or state court relating to this Agreement, and each Party hereby waives any
defense, whether asserted by motion or pleading, that said County is an improper or inconvenient
venue.
11. Prevailing Party Attorneys' Fees. If any court action is brought for the enforcement of this
Agreement, or because of an alleged dispute, breach, default, or misrepresentation in connection
with any provision of this Agreement, the successful or prevailing Party shall be entitled to
recover reasonable attorneys' fees, court costs, and all out of pocket expenses, including
nontaxable court costs (including, without limitation, all such fees, costs, and expenses incident
to arbitration, appellate, bankruptcy, and post judgment proceedings), incurred in that court
action or any appeal, in addition to any other relief to which the Party may be entitled.
Attorneys' fees include legal assistant fees, expert witness fees, investigative fees, administrative
costs, and all other charges billed by the attorney of a prevailing Party, and shall further include
all such fees expended by a prevailing Party in any effort to establish the entitlement to, and/or
the proper amount of, such fees and costs due pursuant to this provision.
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12. Entire Agreement. This Agreement contains the entire agreement of the Parties with
respect to NHC's access to the Property as provided herein. This Agreement does not provide
NHC or any other party or entity with an easement, leasehold, or other legal right of use of the
Property for any purpose except as expressly set forth herein.
13. Modifications. This Agreement will not be modified or amended in any respect except by
written agreement by the Parties in the same a manner as this Agreement is executed.
14. Counterparts. This Agreement may be executed in several counterparts, each of which will
be deemed an original, and all such counterparts together will constitute one and the same
instrument.
15. Authority. Each Party hereto warrants and represents that such Party has full and complete
authority to enter into this Agreement and each person executing this Agreement on behalf of a
Party warrants and represents that he/she has been fully authorized to execute this Agreement on
behalf of such Party and that such Party is bound by the signature of such representative.
16. City's Reservation of Rights. Nothing in this Agreement shall be deemed to constitute a
comment, consent or approval by the City of any specific remedial approach advocated or
proposed by NHC; City expressly reserves the right to comment on or object to any such
remedial approach that NHC may propose for the Site.
17. NHC's Reservation of Rights. Nothing in this Agreement shall be deemed an admission of
liability, responsibility, or obligation of NHC regarding any environmental condition on the
Property. NHC expressly reserves the right to comment on or object to any remedial approach
proposed by the City or FDEP.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of
the day and year first written above.
NHC-FL8 L.P.
By:•
Its: - L«j
—Signed in the presence of:
Witness Signature
(AyA ( (- row
Print Name: S TR'UC-t( 114 4-a---11 rli Print Name
Date: O c 5 2 0 0
[GM 17-1313-097/225777/2]
CITY OF CLEARWATER, FLORIDA
—ctedt,c n cret �t
George N. Cretekos, Mayor
Approved as to form:
Laura Lipowski Mahony
Assistant City Attorney
[GM17-1313-097/22577712]
By:
ir
William B. Horne, II, City Manager
Date: 60/11-1W gl •-041
Attest:
Rosemarie Call
City Clerk
Exhibit A
Legal Description
[GM 17-1313-097/225777/2]
o' sao• taco'
GRAPHIC SCALE IP PCLR
Patterson Road
EXHIBIT "A"
This is NOT a Survey
Hillsborough County
OR Book 3950-1199
////////////////////
425 Acres, More or Less
I
1
1
IProperties
1
1 Not Included
I Per
Hillsborough
County
OR Books
I6275-1231
and
19665-1051
II
SECO.O OMWOO!
MOM Ot
NEVisxwi
CITY OF CLEARWATER, FLORIDA
ENGINEERING DEPARINENT
100 B. MYRTLE AVE
CLEARWATER, FL 83768
®CALL 811
su.wrx STATE
001 CALL
Of FUME
Hillsborough County OR Book 3950, Page 1199
That part of the East Half of Section 19, Township 27 South, Range 17 East, Hillsborough County, Florida,
lying East of the center line of Patterson Road; Less and Except, the North Half of the Northeast Quarter of
the Northeast Quarter of the Southeast Quarter of said Section 19; subject to platted rights of way by
Keystone Park Colony, Plat Book 5, page 55, Public Records of Hillsborough County, Florida.
AND
Beginning at the Northwest corner of Section 20, Township 27 South, Range 17 East, Hillsborough
County, Florida, run thence North 89'50'54"East for 1307.14 feet to the Northeast corner of the Northwest
Quarter of the Northwest Quarter of said Section 20; thence South 0°23'22" East for 637.68 feet to the
Southeast corner of the Northeast Quarter of the Northwest Quarter of the Northwest Quarter of said
Section 20; thence North 89°59'51" East for 654.07 feet to the Northeast corner of the Southwest Quarter
of the Northeast Quarter of the Northwest Quarter of said Section 20; thence South 0'26'00" East
for 1279.56 feet to the Northeast corner of the Southwest Quarter of the Southeast Quarter of the
Northwest Quarter of said Section 20; thence North 89'39'96" West, along the North boundary of said
Southwest Quarter of the Southeast Quarter of the Northwest Quarter for 297 feet; thence
South 25°11'38" East for 709.05 feet to the Southeast corner of the Southwest Quarter of the Southeast
Quarter of the Northwest Quarter of said Section 20; thence South 0°21'12" East for 661 feet to the
Northeast corner of the Southwest Quarter of the Northeast Quarter of the Southwest Quarter of said
Section 20; thence North 89°28'55" West along the North boundary of said Southwest Quarter of the
Northeast Quarter of the Southwest Quarter for 257.88 feet; thence South 0°13'47" East for 661 feet to
the South boundary of said Southwest Quarter of the Northeast Quarter of the Southwest Quarter; thence
South 9'36'11" West for 1338.66 feet to the South boundary of said Section 20; thence
North 89°29'13" West for 1493.11 feet to the Southwest corner of said Section 20; thence
North 0°01'00" East for 2644 feet to the Quarter Section corner on the West boundary of said
section 20; thence North 0'18'04" West for 2535.70 feet to the Point of Beginning.
AND
The North Half of the Northeast Quarter of the Northeast Quarter of the Southeast Quarter of Section 19,
Township 27 South, Range 17 East, Hillsborough County, Florida.
Less and except the following:
Hillsborough County OR Book 6275, Page 1231
Part of the Southeast 1/4 of Section 19, Township 27 South, Range 17 East, Hillsborough County, Florida,
said part being more particularly described as follows:
Commence at the Southeast corner of said Section 19, thence S.89°24'37" W., 1779.66 feet along the
South boundary of the aforesaid Southeast 1/4 of Section 16 to the Point of Beginning; thence continue
5. 89'24'37" W., 800.81 feet along said South boundary of the Southeast 1/4 to a point on the centerline of
Patterson Road; thence along said centerline of Patterson Road the following
five (5) courses; 1.) N. 63'12'23" W., 41.27 feet to a point of curvature; 2.) Northwesterly 181.16 feet along
the arc of a curve to the right having a radius of 172.97 feet and a central angle of 60°00'31" (chord bearing
and distance of N. 33'12'08" W., 172.99 feet) to a point of tangency; 3.) N. 03°13'33" W., 633.42 feet to a
point of curvature; 4.) Northerly 515.14 feet along the arc of a curve to the right having a radius
of 4997.26 feet and a central angle of 05°54'23" (chord bearing and distance of
N. 00°16'21" W., 514.92 feet) to a point of tangency; 5.) N. 02°40'50" E., 1329.01 feet; thence leaving said
centerline of Patterson Road, N. 89'24'37" E., 909.10 feet; thence 5. 00'01'00" W., 2639.35 feet to the
Point of Beginning.
AND
Hillsborough County OR Book 19665, Page 1051
Part of the Southeast 1/4 of Section 19, Township 27 South, Range 17 East, Hillsborough County, Florida,
said part being more particularly described as follows:
Commence at the Southeast corner of said Section 19, then S89°24'37" West, 1479.66 feet along the South
Boundary of the aforesaid Southeast 1/4 of Section 19 to the Point of Beginning; thence continue
589°24'37" West, 300.00 feet along the South Boundary of the aforesaid Southeast 1/4; thence
N00°01'00" East, 2638.35 feet; thence N89'24'37" East, 300.00 feet; thence 500°01'00" West, 2639.35 feet
to the Point of Beginning
Containing 18.18 acres, more or less.
Hillsborough County Keystone Property
Legal and Sketch
ma ma
:ent IT 500.
I~Nast