ACCESS AGREEMENTACCESS AGREEMENT
THIS ACCESS AGREEMENT (the "Agreement") is made and entered into as of
-un 1424 $ , 2019 (the "Effective Date") among City of Clearwater, Florida (herein
re erred to as "City") and Jolley Trolley Transportation of Clearwater, Inc., a Florida non-
profit corporation (herein referred to as "JTT").
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, JTT seeks to enter into a lease of the Property;
WHEREAS, JTT does not currently have an easement, leasehold, or other legal right of
use of the Property for any purpose whatsoever;
WHEREAS, JTT seeks to perform soil, groundwater and surface water sampling on the
Property (the "Work") in order to complete its environmental due diligence prior to entering into
a lease of the Property, subject to JTT obtaining a temporary right of access to the Property to
perform the Work;
WHEREAS, JTT seeks access to the Property to perform the Work; and
WHEREAS, City is willing to grant JTT 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 JTT with access to the Property upon the following terms and
conditions:
1. Access.
City hereby authorizes JTT and its consultants/subcontractors to enter upon the Property
to perform the Work, subject to the terms and conditions herein. At least fourteen (14) days prior
to the date on which JTT seeks entry onto the Property to begin the Work ("Work Date"), JTT
shall provide City with a copy of the final work plan for the Work. City may then, in its sole
discretion, determine whether to grant JTT access to the Property to undertake the Work. Access
to the Property to undertake the Work shall not be granted unless City notifies JTT in writing a
minimum of seven(7) business days prior to the Work Date that the final work plan has been
approved. If such notice is not received, access to the Property to undertake the Work is deemed
not to have been granted. Further, 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.
4820-3806-1729.2
b. 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 JTT under this Agreement.
d. City and/or its representative shall be entitled to split samples for any
soillgroundwater/surface water sample collected on behalf of JTT.
e. The Work shall be performed in a manner that minimizes the interference with
City's use of the Property.
f. JTT, 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. JTT 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.
j. JTT 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 for more than 24 hours.
1. JTT shall provide City with copies of the laboratory reports for all samples
collected from the Property within five (5) days from receipt of the validated laboratory reports,
and with copies of all data and any reports derived from the Work within five (5) days of JTT's
receipt of any such data or reports.
n. Upon completion of the Work, JTT shall restore the Property to a condition as
close as reasonably possible to the condition existing prior to the Work. Notwithstanding the
foregoing, the six (6) groundwater monitoring wells installed for the Work shall remain on the
Property following completion of the Work.
2. Prior Investigation Reports
4820-3806-1729.2
JTT acknowledges that it has received and reviewed the Phase I Environmental Site
Assessment Report, Overbrook Avenue Parcel, West Portion of 1720 Overbrook Avenue,
Clearwater, Pinellas County, Florida, March 2010, prepared by Cardno for the Premises ("Phase
I ESA"). JTT further acknowledges that the Property was the subject of an environmental
investigation in 2004-05, the results of which are presented in a Site Assessment Report, City of
Clearwater, 2.9 -Acre Greenspace Property (Western Portion of the Former Central Florida Used
Auto Parts Site), Clearwater, Pinellas County, Florida, December 2005, prepared by TBE Group
("SAR"), and that the SAR is included as an attachment to the Phase I ESA.
3. Indemnification.
a. JTT 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 JTT's breach of this Agreement; provided, however, JTT 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 JTT is responsible resulting from the personal injury or death of an employee
of JTT, or its consultant/subcontractor, regardless of whether JTT, 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.
4. Insurance. JTT shall require any consultant/subcontractor retained by JTT 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.
4820-3806-1729.2
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 $2,000,000 per person per accident or occurrence for bodily
injury and limits of not less than $2,000,000 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.
5. Cost Reimbursement. In the event JTT does not enter into a lease of the Property based on
the results of the Phase II Environmental Work, City will reimburse JTT fifty percent (50%) of
the total Work cost, not to exceed Eight Thousand Nine Hundred Thirty Dollars and XX/100
($8,930.00).
6. 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:
Laura Lipowski Mahony
City of Clearwater
Assistant City Attorney
600 Cleveland Street
Suite 600
Clearwater, FL 33755
(727) 562-4015
Laura.Mahony@myClearwater.com
With a copy to: William L. Pence
Baker Hostetler
200 S. Orange Ave, Suite 2300
Orlando, FL 32801-3432
(407) 649-4095
wpence@bakerlaw.com
If to JTT:
Rosemary Windsor
410 N Myrtle Ave.
Clearwater, Florida 33755
With a copy to: Brian Aungst, Esq.
4820-3806-1729.2
pp)
Macfarlane Ferguson & McMullen
625 Court Street
Clearwater, Florida 33756
City and JTT may designate any further or different addresses to which subsequent
notices, certificates or other communications will be sent.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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
4820-3806-1729.2
costs, and all other charges billed by the attorney of a prevailing Party, and shall further include
ail 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.
14. Entire Agreement. This Agreement contains the entire agreement of the Parties with
respect to JTT's access to the Property as provided herein. This Agreement does not provide
JTT 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.
15. Modifications. This Agreement shall not be modified or amended in any respect except by
written agreement by the Parties in the same manner as this Agreement is executed.
16. 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.
17. 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.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of
the day and year first written above.
JOLLEY TROLLEY TRANSPORTATION OF CLEARWATER, INC.
Witness Signature
Its:
Print Name:% 4 561(4 Y Cl
Date:.0q/e..57-4
Designated Representative for Receipt of Notice:
Signed in the presence of:
Carob o l -
Print Name
Name: Rosemary Windsor
Address: 410 N Myrtle Ave.
Clearwater, Florida 33755
Telephone:
Email:
With a copy to:
4820-3806-1729.2
4&)
Name: Brian Aungst, Esq,
Address: Macfarlane Ferguson & McMullen
625 Court Street
Clearwater, Florida 33756
Telephone:
Email:
4820-3806-1729.2
i,J
CITY OF CLEARWATER, FLORIDA
rk f\ t-405
George N. Cretekos, Mayor
Approved as to form:
akaltet-
Laura Lipowski Mah
Assistant City Attorney
By: Lk)
Date:
Attest:
to
Designated Representatives for Receipt of Notice:
Name:
Telephone:
Email:
Name:
Address:
Telephone:
Email:
4820-3806-1729.2
William B. Horne, II, City Manager
9/sAoi9
Rosemarie Call
City Clerk
Laura Lipowski Mahony
City of Clearwater
Assistant City Attorney
600 Cleveland Street
Suite 600
Clearwater, FL 33755
(727) 562-4015
Laura.Mahony@myClearwater.com
William L. Pence
Baker Hostetler
200 South Orange Avenue, Suite 2300
Orlando, Florida 32801-3432
(407) 649-4095
wpence@bakerlaw.com
N.T.S.
This is
not a survey
s,
EXHIBIT
Lot 5
Lot 6
1
Lot 9
99 p 97
Lot 20
----1 f-----1
1 Lot 8 Jade Heights Subdivision
,y Plat Book 30, Page 90 Lot 21 I
yRi
1
•04 4,
ay
Lot 22
Lot 7 1
Lot 23
43/04
43/041 > \
/ N
el
Access Agreement N;
to Jolley Trolley
/ / tNi
/ S
2.50 Acres +/-
h
43/042
\
i
CITY OF CLEARWATER \
Fire Station #51
OR 12320, Page 1598
Line Table
Line #
Dearing
Distance
LI
N89°36'07"W
68.91'
OINT OF
BEGINNING
43/05
N89'36'07"W 435.00'
South Line of Section 03 -29S -15E
I I
Stevenson's Heights
Plat Book 34, Page 13
Block A
Legal Description
POINT OF COMMENCEMENT
SOUTHEAST CORNER OF THE
SW OF THE SE OF
SECTION 03-29S-1SE
LI
Portion of property to be leased from the City of Clearwater to Jolley Trolley described as follows:
Commence at the Southeast corner of the SW of the SE of Section 3, Township 29 S, Range 15 E; thence N 89° 36' 07" W, along
the South line of Section 3, Township 29 S, Range 15 E, a distance of 68.91'; thence N 89° 36' 07" W, along said South line of Section
3, Township 29S, Range 15E, a distance of 435.00' to a Point of Beginning; thence N 89° 36' 07" W, along said South line of Section 3,
Township 29S, Range 15E, a distance of 259.25' to the Southeast corner of Pineland Avenue Right -of -Way; thence N 00° 06' 21" W,
along the East Right -of -Way line of said Pineland Avenue, a distance of 514.21' to a point on the Southwesterly Right -of -Way line of
Overbrook Avenue; thence S 53° 26' 09" E, along the Southwesterly Right -of -Way line of said Overbrook Avenue a distance of 326.72';
thence S Q0°23' 53" W, a distance of 321.38' to the point of beginning.
Containing 2.50 Acres More or Less
I
l
CITY OF CLEARWATER
ENGINEERING DEPARTMENT
DRAWN BY
Jim Benwell
CHECKED BY
Tom Mahony
Sketch and Description of
City of Clearwater Access Agreement
To Jolley Trolley
DWG. NO.
SHEET
1 OF 1
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DATE DRAWN 09/04/2019
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