Agreement for Sale & Purchase-Corrected 07/19/2006DANNYL. KOLHAGE
CLERK OF THE CIRCUIT COURT
DATE: April23, 2007
TO: Suzanne A. Hutton
County Attorney
ATTN: Kathy Peters
Executive Assistant
FROM: Pamela G. Hanc ck
Deputy Clerk
At the April 18, 2007, Board of County Commissioner's meeting the Board granted
approval and authorized execution of the following:
Settlement Agreement to resolve Circuit Court Case No. 2005-CA-420-K, Monroe
County v. Pedro Martiniano Liz, regarding unpaid code enforcement liens. Enclosed is the
original Agreement for your handling.
Mayor to execute a corrected Agreement for Sale and Purchase approved 07/19/2006
correcting the name of the Seller to reflect Drive -In, LTD (previously shown as Island Village,
LLC), with a leaseback to Islander Village, LLC as the developer of the affordable housing units,
and providing for an access easement across County property for market rate housing units which
should have been included in the original Agreement. The effective date of the corrected
Agreement would be retroactive to 07/19/2006 when the original Agreement was approved by the
Board. Enclosed are three duplicate originals for your handling.
Should you have any questions please do not hesitate to contact this office.
cc: Finan e
File
Project: ISLANDER VILLAGE
AGREEMENT FOR SALE AND PURCHASE
THIS AGREEMENT is made this 19th day of July, 2006, between DRIVE-IN, LTD. as "Seller" whose address is 201
Front Street, Suite 210, Key West, Florida 33040, and the BOARD OF COUNTY COMMISSIONERS FOR
MONROE COUNTY, FLORIDA, a political subdivision of the State of Florida, as "Purchaser", coo Thomas Willi,
County Administrator, 1100 Simonton Street, Room 2-205, Key West, Florida 33040.
I. In consideration of the mutual promises contained herein, Seller hereby agree to sell to Purchaser the real
property located in Monroe County, Florida, described below, together with all improvements, easements, rights and
appurtenances ("Property"), in accordance with the provisions of this Agreement. This Agreement becomes legally
binding upon execution by the parties.
2. DESCRIPTION OF PROPERTY. The property which the Seller agrees to sell and the Purchaser agrees to buy
pursuant to the terms of this Agreement is that property situated on Stock Island, Monroe County, Florida, and more
particularly described as:
A parcel of land on Stock Island, being a part of Block 59, MALONEY SUBDIVISION, according
to the Plat thereof, as recorded in Plat Book 1, at Page 55, of the Public Records of Monroe
County, :Florida, and adjacent submerged lands, said parcel being more particularly described by
metes and bounds as follows:
Commencing at the W'ly Right -of -Way Line of Cross Street and the S'ly Right -of -Way Line of
Fifth Avenue and run thence West along the S'ly Right -of -Way Line of the said Fifth Avenue for a
distance of 450.00 feet to the Point of Beginning, thence continue West and along the S'ly Right -
of -Way Line of the said Fifth Avenue for a distance of 691.45 feet; thence run South for a distance
of 79.47 feet; thence run S 3°00'00" W for a distance of 88.04 feet to a curve, concave to the
Northeast and having for its elements a radius of 157.0 feet, and a delta of 43"00'; thence run
SE'ly along the arc of said curve for a distance of 117.83 feet to the end of said curve; thence run
S 40°00'00" E for a distance of 183.23 feet to a curve, concave to the North and having for its
elements a radius of 92.0 feet and a delta of 95°00'; thence run SE'ly and NE'ly along the arc of
said curve for a distance of 152.54 feet to the end of said cure; thence run N 45°00'00" E for a
distance of 406.95 feet to a curve, concave to the Northwest and having for its elements a radius of
87.0 feet, and a delta of 11"49'24"; thence run NE'ly along the arc of said curve for a distance of
17.95 feet; thence run East for a distance of 37.33 feet; thence run S 74'58' 15" E for a distance of
72.32 feet to a point that is due South of the Point of Beginning; thence run North for a distance of
139.88 feet back to S'ly Right -of -Way Line of the said Fifth Avenue and the Point of Beginning,
containing 4.69 acres more or less, subject to an easement for ingress and egress as described in
Exhibit A, attached.
Page 1
3. TOTAL :PURCHASE PRICE. The total purchase price ("Total Purchase Price") for the Property is Two
Million Twenty Four Thousand Seven Hundred Fifty Dollars and 00/100 ($2,024,750.00) which will be paid by
Purchaser at closing. Seller hereby authorizes Purchaser to issue a County check or warrant directly to an escrow agent
who is authorized by law to receive such payment, and who is acceptable to Purchaser, and to require the escrow agent to
pay customary and any other agreed Seller's expenses of sale and real estate taxes. Should Purchaser's funds not be
available for any reason at the time of closing, Purchaser or Seller may elect to terminate this Agreement by written
notice to the parties without liability to any party. Conveyance of the Property in fee simple from Self to Purchaser will
take place at the closing, in exchange for the payments and other considerations to be made to Seller at closing as set
forth herein and in any related agreements.
4.A. ENVIRONMENTAL SITE ASSESSMENT. Seller shall, at Seller's sole cost and expense and at least 45 days
prior to the closing, furnish to Purchaser an environmental site assessment of the Property which meets the standard of
practice of the American Society of Testing Materials ("ASTM"). Seller shall use the services of competent,
professional consultants with expertise in the environmental site assessing process to determine the existence and extent,
if any, of Hazardous Materials on the Property. For purposes of this Agreement, "Hazardous Materials" shall mean any
hazardous or toxic substance, material or waste of any kind or any other substance which is regulated by any
Environmental Law (as hereinafter defined in paragraph 4.13.). The examination of hazardous materials contamination
shall be performed to the standard of practice of the ASTM. For Phase I environmental site assessment, such standard of
practice shall be the ASTM Practice E 1527. If the Findings and Conclusions section ofthe assessment reports evidence
of recognized environmental conditions, then a Phase 11 Environmental Site Assessment shall be performed at Seller's
expense to address any suspicions raised in the Phase I environmental site assessment and to confirm the presence of
contaminants on site. The environmental site assessment(s) shall be certified to Purchaser.
4.13. HAZARDOUS MATERIALS. In the event that the environmental site assessment provided for in paragraph
4.A. confirms the presence of Hazardous Materials on the Property, Purchaser, at its sole option, may elect to terminate
this Agreement and neither parry shall have any further obligations under this Agreement. Should Purchase elect not to
terminate this Agreement, Seller shall, at his sole cost and expense and prior to the closing, promptly commence and
diligently pursue any assessment, clean up and monitoring of the Property necessary to bring the Property into full
compliance with any and all applicable federal, state or local laws, statutes, ordinances, Hiles, regulations or other
governmental restrictions regulating, relating to, or imposing liability or standards of conduct concerning Hazardous
Materials ("Environmental Law"). However, should the estimated cost of clean up of Hazardous Materials exceed a sum
which is equal to t% of the Total Purchase Price as stated in paragraph 3, Seller may elect to terminate this Agreement
and no party shall have any further obligations under this Agreement.
5. SURVEY. Seller shall, at Seller's sole cost and expense and not less than 25 business days prior to closing,
deliver to Purchaser a current boundary survey of the Property prepared by a professional land surveyor licensed by the
State of Florida. The Survey shall be certified to Purchaser, title insurer and any other of its designees, and the date of
certification shall be within 90 days before the date of closing, unless this 90 day time period is waived by Purchaser and
by the title insurer for purposes of deleting the standard exceptions for survey matters and easements or claims of
easements not shown by the public records from the owner's title policy. If the Survey shows any encroachment on the
Property or that improvements intended to be located on the Property encroach on the land of others, the same shall be
treated as a title defect.
G. TITLE INSURANCE. Seller shall, at Seller's sole cost and expense and at least 25 business days prior to
closing, furnish to Purchaser a marketable title insurance commitment, to be followed by an owner's marketable title
insurance policy (ALTA Form "B") from a title insurance company, insuring marketable title to the Property in the
amount of the Purchase Price. Seller shall require that the title insurer delete the standard exceptions of such policy
referring to: (a) all prior year taxes, (b) unrecorded rights or claims of parties in possession, (c) survey matters, (d)
unrecorded easements or claims of easements and (e) unrecorded mechanics' liens.
Page 2
7. DEFECTS IN TITLE. If the title insurance commitment or survey furnished to Purchaser pursuant to this
Agreement discloses any defects in title which are not acceptable to Purchaser, Seller shall, within 60 days after notice
from Purchaser, remove said defects in title. Seller agrees to use diligent effort to correct the defects in title within the
time provided therefor. If defects are cured within the time prescribed herein, closing shall occur as scheduled, but shall
not be required to occur within a period shorter than that which would have been provided had there been no notice of
defect in title. If Seller is unsuccessful in removing the title defects within said time or if Seller fails to make a diligent
effort to correct the title defects, Purchaser shall have the option to either: (a) accept the title as it then is with a reduction
in the Total Purchase Price by an amount agreed to by the parties, (b) accept the title as it then is with no reduction in the
Total Purchase Price, (c) extend the amount of time that Seller has to cure the defects in title if agreeable to Seller, or (d)
terminate this Agreement, thereupon releasing Purchaser and Seller from all further obligations under this Agreement.
8. INTEREST CONVEYED. At closing, Seller shall execute and deliver to Purchaser a statutory warranty deed,
conveying marketable title to the Property in fee simple free and clear of all liens, reservations, restrictions, easements,
leases, tenancies and other encumbrances, except for those that are of record and acceptable encumbrances in the opinion
of Purchaser and do not impair the marketability of the title to the Property, and except for a non-exclusive easement for
ingress and egress reserved by Seller over the property described in Exhibit A. A copy of the Easement Agreement is
attached hereto as Exhibit B.
9. PREPARATION OF CLOSING DOCUMENTS. Upon execution of this Agreement, Seller shall submit to
Purchaser a properly completed and executed beneficial interest affidavit and disclosure statement as required by Section
286.23, Florida Statutes. Seller shall prepare the deed described in paragraph 8. of this Agreement, Seller's closing
statement, the title, possession and lien affidavit certified to Purchaser and title insurer in accordance with Section
627.7842, Florida Statutes, an environmental affidavit and all other documents and instruments customary to similar
transactions in Monroe County. All prepared documents shall be submitted to Purchaser for review and approval at least
25 business days prior to closing.
10. PURCHASER REVIEW FOR CLOSING. Purchaser will approve or reject in its reasonable discretion each
item required to be provided by Seller under this Agreement within 20 business days after receipt by Purchaser of all of
the required items. With the exception of title defects and Seller's related ability to cure as set forth in Paragraph 7
above, Seller will have 20 business days thereafter to cure and resubmit any rejected item to Purchaser. In the event
Seller fails to timely deliver any item, or Purchaser rejects any item after delivery, Purchaser may in its discretion extend
the closing date.
11. EXPENSES. Seller will pay the documentary revenue stamp tax and all other taxes or costs associated with the
conveyance, including the cost of recording the deed described in paragraph 8. of this Agreement and any other
recordable instruments which Purchaser deems necessary to assure good and marketable title to the Property, as well as
any associated leases and other instruments and related agreements.
12. TAXES AND ASSESSMENTS. All real estate taxes and assessments which are or which may become a lien
against the Property shall be satisfied of record by Seller at or before closing. In the event Purchaser acquires fee title to
the Property between January 1 and November 1, Seller shall, in accordance with Section 196.295, Florida Statutes,
place in escrow with the county tax collector an amount equal to the current taxes prorated to the date of transfer, based
upon the current assessment and millage rates on the Property. In the event Purchaser acquires fee title to the Property
on or after November 1, Seller shall pay to the county tax collector an amount equal to the taxes that are determined to
be legally due and payable by the county tax collector.
13. CLOSING PLACE AND DATE. The closing shall occur on or before 30 days after Seller provides Purchaser
with written notice; that it has received all required permits, approvals and ROGO allocations to build the improvements
necessary to fulfill Seller's lease obligations; provided, however, that if a defect exists in the title to the Property, title
commitment, Survey, environmental site assessment, or any other documents required to be provided or completed and
executed by Seller, the closing shall occur either on the original closing date or within 15 business days after receipt of
Page 3
documentation curing the defects, whichever is later. The exact date, time and place of closing and closing agent shall be
set by Purchaser, but the party paying for the owner's title insurance shall pay customary associated costs and shall
select title issuing agent.
14. RISK OF LOSS AND CONDITION OF REAL PROPERTY. Seller assumes all risk of loss or damage to the
Property prior to the date of closing (and after closing pursuant to and to the extent provided by the related lease of the
property by Purchaser to Seller) and warrants that the Property shall be transferred and conveyed to the Purchaser in the
same or essentially the same condition as of the date of Seller's execution of this Agreement, ordinary wear and tear
excepted. However, in the event the condition of the Property is altered by an act of God or other natural force beyond
the control of Seller, Purchaser may elect, at its sole option, to terminate this Agreement and neither party shall have any
further obligations under this Agreement. Seller represents and wan -ants that there are no parties other than Seller in
occupancy or possession of any part of the Property other than those occupants set forth in a complete listing of same to
be provided by Seller in the time in which to deliver evidence of title. Seller agrees to cleanup and remove all abandoned
personal property„ refuse, garbage, junk, rubbish, trash and debris from the Property to the satisfaction of Purchaser
prior to closing.
15. RIGHT TO ENTER PROPERTY AND POSSESSION. Seller agrees that from the date this Agreement is
executed by Seller, Purchaser and its agents, upon reasonable notice, shall have the right to enter the Property for all
lawful purposes in connection with this Agreement and any related agreements or leases, including reasonable
inspections. Seller shall retain possession of the Property at closing pursuant to a contemporaneously executed lease.
16. ACCESS. Seller warrants that there is legal ingress and egress for the Property over public roads or valid,
recorded easements that benefit the Property.
17. DEFAULT. If either party defaults under this Agreement, the non -defaulting party may waive the default and
proceed to closing, seek specific performance, or refuse to close and elect to receive the return of any money paid, each
without waiving any action for damages, or any other remedy permitted by law or in equity resulting from the other's
default. In connection with any dispute arising out of this Agreement, including without limitation litigation and appeals,
the prevailing party will be entitled to recover reasonable attorney's fees and costs. However, should Purchaser not
timely approve and allocate the ROGO allocations and permits required for Seller to fulfill its lease obligations at the
time Seller formally requests same, and after Seller has met all other appropriate development requirements, Seller may
terminate this Agreement, in its sole and absolute discretion and, in such case, shall refund to Purchaser all purchase
monies received and Purchaser shall reconvey the subject property to Seller with the parties released from further
obligations to each other.
18. BROKERS. Seller warrants that no persons, firms, corporations or other entities are entitled to a real estate
commission or other fees as a result of this Agreement or subsequent closing, except as accurately disclosed on the
disclosure statement required in paragraph 9. Seller shall indemnify and hold Purchaser harmless from any and all such
claims, whether disclosed or undisclosed.
19. RECORDING. This Agreement, or notice of it, and the contemporaneously executed lease maybe recorded by
Purchaser in the Official records of Monroe County.
20. ASSIGNMENT. This Agreement may not be assigned by either Party without the prior written consent of the
Other Party.
21. TIME. Time is of essence with regard to all dates or times set forth in this Agreement.
22. SEVERABILITY. In the event any of the provisions of this Agreement are deemed to be unenforceable, the
enforceability of the remaining provisions of this Agreement shall not be affected.
Page 4
23. SUCCESSORS IN INTEREST. Upon Seller's execution of this Agreement, Seller's heirs, legal representatives,
successors and assigns will be bound by it. Upon Purchaser's approval of this Agreement and receipt of all required
public approvals, Purchaser and Purchaser's successors and assigns will be bound by it. Whenever used, the singular
shall include the plural and one gender shall include all genders.
24. ENTIRE AGREEMENT. This Agreement is to be contingent upon the full effectiveness of related agreements,
if any, but including a related 99-year lease from Purchaser to Islander Village, LLC, as approved by Purchaser, such
agreements containing the entire agreement between the parties pertaining to the subject matter contained therein and
superseding all prior and contemporaneous agreements, representations and understandings of the parties. No
supplement, modification or amendment to these Agreements shall he binding unless executed in writing by the parties.
25. WAIVER. Failure of Purchaser to insist upon strict performance of any covenant or condition of this
Agreement, or to exercise any right herein contained, shall not be construed as a waiver or relinquishment for the future
of any such covenant, condition or right; but the same shall remain in full force and effect.
26. AGREEMENT EFFECTIVE. This Agreement or any modification, amendment or alteration thereto, shall not
be effective or binding upon any of the parties hereto until it has been executed by all of the parties hereto, and finally
approved pursuant to any legal or regulatory requirements. Once executed, the effective date is retroactive to July 19,
2006.
27. ADDENDUM. Any addendum attached hereto that is signed by the parties shall be deemed a part of this
Agreement.
28. NOTICE. Whenever either parry desires or is required to give notice unto the other, it must be given by written
notice, and either delivered personally or mailed to the appropriate address indicated on the first page of this Agreement,
or such other address as is designated in writing by a party to this Agreement.
29. SURVIVAL. The covenants, warranties, representations, indemnities and undertakings of Seller set forth in this
Agreement shall survive the closing, the delivery and recording of the deed described in paragraph 8. of this Agreement
and Local Government's title to or possession of the Property.
30. CONTINGENCIES. In addition to the permit and ROGO allocation contingency set forth above in Paragraph
17, the closing of this transaction shall be contingent upon Seller's first mortgage holder consenting to a substitution of
collateral in which the mortgage on the fee simple interest is substituted with a mortgage on the leasehold interest.
31, EFFECTIVE DATE. The effective date of this Agreement will be retroactive to July 19, 2006.
THIS IS TO BE A, LEGALLY BINDING CONTRACT. IF NOT FULLY UNDERSTOOD, SEEK THE ADVICE OF
AN ATTORNEY PRIOR TO SIGNING.
Page 5
RE Nos.:
AGREEMENT FOR SALE AND PURCHASE
SIGNATURE PAGE
SELLER- DRIVE-IN, LTD.
Witness By:
WifncsPrint Name/Title
STATE OF Florida )
COUNTY OF Monroe)
The foregoinginstrument was acknowledged before me this day of _ 2007,
by fg wi n D - S c, JT i-y- . He is personally known to me or produced as identification.
(SEAL) e4X['.t-1
Marlon Hope Casas Notary Public —�
Commission # OD325062 /ym"' id'£ C..
Expires July 21, 2006 (Printed, Typed or Stamped Name of Notary Public)
R . 5� TMrr x•800-m-ma
Commission No.:
My Commission Expires:
TEAL PURCHASER
f BOARD OF COUNTY COMMISSIONERS
,���.-� OF MONROE COUNTY, FLORIDA
L.KOLHAGE,CLERK
By:: ^/
�t
Deputy Clerk Mayor Mario iGennaro
APR 1 8 2007
N a
1.1 J
CD 0 `A MONROE COUNTY ATTORNEY
APPROVED AS TO FORM:
SUSAN M. G SLEY
N �. Ito ASSISTANT COUNTY ATTORNEY
G y s.=UK Date— `/ya-G7
u : a `<{
r C, Page 6
U._ N
ADDENDUM
(IMPROVEMENTS PURCHASER)
A. Radon Ga.s. Radon is a naturally occurring radioactive gas that, when it has accumulated
in a building in sufficient quantities, may present health risks to persons who are exposed to it
over time. Levels of radon that exceed federal and state guidelines have been found in buildings
in Florida. Additional information regarding radon and radon testing may be obtained from your
county public health unit. This notice is being provided in accordance with Section 404.056(8),
Florida Statutes. Purchaser may, at its sole cost and expense, have the buildings that will
remain on the Property inspected and tested for radon gas or radon progeny by a qualified
professional properly certified by the Florida Department of Health and Rehabilitative Services.
If radon gas or radon progeny is discovered, Purchaser shall have the option to either: (a)
accept the Property as it then is with no reduction in the Purchase Price or (b) terminate this
Agreement, thereupon releasing Purchaser and Seller from all further obligations under this
Agreement.
B. Wood Destroying Organisms Inspection Report. Purchaser may, at its sole cost and expense,
obtain a Wood Destroying Organisms Inspection Report made by a state licensed pest control firm
showing the buildings that are to remain on the Property to be visibly free of infestation or
damage by termites or other wood -destroying pests. I£ the report shows such infestation or
damage, Purchaser shall have the option to either: (a) accept the Property as it then is with no
reduction in the Purchase Price or (b) terminate this Agreement, thereupon releasing Purchaser
and Seller from all further obligations under this Agreement.
C. Malnten XLCe of Improvements. Seller shall, if required by Purchaser, maintain the roofs,
doors, floors, steps, windows, exterior walls, foundations, all other structural components,
major appliances and heating, cooling, electrical and plumbing systems on all improvements that
will remain on the Property in good working order and repair up to the date of closing.
Purchaser may, at its expense, have inspections made of said items by licensed persons dealing in
the repair and maintenance thereof. If the inspection reveals that any of the improvements that
will remain on the Property are in need of repair, Purchaser shall have the option to either:
(a) accept the Property as it then is with no reduction in the Purchase Price or (b) terminate
this Agreement,thereupon releasing Purchaser and Seller from all further obligations under this
Agreement.
SELLER - DRIVE --IN, LID.
By
PURCHASER
40AARR OF COUNTY COMdISS RS OF
Q*ROOE COUNTY, F "MA
L •� a �<('f -aF C>e,)e.z APR 1 8 2007
Print Name Title
� )t oy
Date signedjby Seller
MONROE COUNTY ATTORNEY
APPROVE(D7`�`
AS /T/O FORM:
W/jN A A�'4 � I -'-, - 0
SUSAN M. G"SLEY
ASSISTANT COUN ATTORNEY
Date _.=-.Y9.c.G`I
Page 7
EXHIBIT A - Page 1 of 2 Pages
EXHIBIT "A" TO
AGREEMENT FOR PURCHASE AND SALE
f7 BETWEEN MONROE COUNTY, FLORIDA,
AND DRIVE-IN, LTD.
"Easement Property"
<C3 PROPOSED EASEMENT FOR ROADWAY AND UTILITIES:
A parcel of land on Stock Island, being a part of
Block 59, MALONEY SUBDIVISION, according to the plat
thereof, as recorded in Plat Book 1, at Page 55, of
U the Public Records of Monroe County, Florida, and
adjacent submerged lands, said parcel being more
particularly described by metes and bounds as
follows:
Commencing at the W'ly Right -of -Way Line of Cross
Street and the S'ly Right -of -Way Line of Fifth Avenue,
and run West along the S'Iy Right -of -Way Line of
said Fifth Avenue for a distance of 510.00 feet to the
Point of Beginning; thence continue West along the
Sly Right -of -Way Line of the said Fifth Avenue for a
distance of 47.18 feet; thence run South and at right
angles for a distance of 121.13 feet; thence run East
and at right angles for a distance of 37.33 feet to a
point on a curve, concave to the Northwest and
having for its elements a radius of 100.0 feet, a delta
of 23°22 28', and a chord bearing of N 11 a41 '14 " E;
thence run NE'ly along arc of said curve for a
distance of 48.96 feet to the end of said curve;
thence run North for a distance of 73.52 feet back to
the S'ly Right -of -Way Line of the said Fifth Avenue
and the Point of Beginning.
BOUNDARY SURVEY FOR. Board of County Commissioner
Monroe County, Florida,
Islander Village, LLC,
SunTrust Bank of Miami;
Chicago Title Insurance Compa
Spottswood, Spottswood and S1
J WO'Fl;y�nn,
N, INC.
---------------
J PSM
da Reg. 6298
February 25, 2007
EXHIBIT A - Page 2 of 2 Pages
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A •A
Prepared by and Return to:
Spottswood, Spottswood & Spottswood
500 Fleming Street
Key West, Florida 33040
GRANT OF EASEMENT
THIS GRANT OF EASEMENT is entered into this day of
, 2007 (herein "Agreement') by and between MONROE
COUNTY, a political subdivision of the State of Florida, its successors and assigns, whose
address is 1100 Simonton Street, Key West, Florida 33040, (herein "Monroe County") and
ISLANDER VILLAGE, LLC, a Florida limited liability company, its successors and assigns,
whose address is 201 Front Street, Suite , Key West, Florida 33040 (herein "Islander
Village"), Monroe County and Islander Village shall be collectively referred to herein as
"Grantor", and DRIVE-IN, LTD., a Florida limited partnership, its successors and assigns,
whose address is 201 Front Street, Suite Key West, Florida 33040 (herein "Drive -In" or
"Grantee" ).
RECITALS
WHEREAS Monroe County, simultaneously with the execution of this Agreement, has
purchased property from Drive -In and is now the owner of said real property located in Monroe
County, Florida, which property is described on Exhibit "A" attached hereto and made a part
hereof (herein "Affordable Property"); and
WHEREAS Drive -In remains the owner of certain real property located in Monroe County,
Florida, which property is described on Exhibit "B" attached hereto and made a part hereof
(herein "Market Rate Property"), which will be developed into twenty-two (22) market rates
units and subsequently sold to individual unit owners; and
WHEREAS, simultaneously with the execution of this Agreement, Islander Village and Monroe
County entered into a ninety-nine (99) year ground lease (hereinafter "Lease") pursuant to which
Islander Village has leased the Affordable Property from Monroe County for the development
and subsequent sale of eighty-nine (89) affordable units to individual unit owners; and,
WHEREAS, the parties are desirous of entering into this Agreement to provide Drive -In with a
non-exclusive perpetual easement over a portion of the Affordable Property for among other
things, the construction and maintenance of a roadway, over and across the property more
particularly described in the attached Exhibit "C" (hereinafter "Easement Property"), together
with a perpetual easement for ingress, egress and passage (both pedestrian and vehicular) over
said Easement Property and the roadway constructed thereon in order to facilitate access to the
Market Rate Property; and,
WHEREAS the parties are also desirous of entering into this Agreement to provide Drive -In
with a perpetual non-exclusive easement for access to and use of the sewer lift station located
within the Easement Property; and,
EXHIBIT ET
WHEREAS, the parties are also desirous of entering into this Agreement to provide Drive -In
with a perpetual non-exclusive easement in, over, across and under the Easement Property for the
installation, repair, maintenance and use of underground utilities; and,
WHEREAS, the parties have agreed, under the terms and conditions set forth herein, to grant to
Drive -In the right to use the Easement Property for the purposes set forth herein.
NOW THEREFORE, in consideration of the mutual covenants and obligations contained
herein, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
l . The above Recitals are true and correct and are hereby incorporated herein by reference.
2. Each Party hereto warrants that this grant of easement, and all terms and conditions
contained herein, are supported by adequate consideration.
3. Grantor hereby grants, conveys, declares and creates for the benefit of Drive -In, its
successors and assigns, a perpetual, non-exclusive easement, in, upon, over and across the
Easement Property, more particularly shown on the attached Exhibit "C" in order to facilitate
access (both vehicular and pedestrian) to and from the Market Rate Property (including access to
construct the twenty-two (22) market rate units). All persons having the right to enter upon the
Market Rate Property shall have the right to utilize the Easement Property for ingress and egress
purposes (both vehicular and pedestrian), including but not limited to Drive-In's guests,
contractors, agents and invitees and the guests, contractors, agents and invitees of the Drive-In's
successors and assigns (the individual unit owners of the units located on the Market Rate
Property).
4. Drive -In, at Drive-In's sole cost and expense, shall be responsible for the repair and
maintenance of the roadway and landscaping within the Easement Property; provided, however,
that the access to and from the Affordable Property shall not be unreasonably impaired or
otherwise impeded in any manner. Drive -In agrees to provide Islander Village with reasonable
notice prior to commencing any repair or maintenance that may interfere or impair the access to
the Affordable Property.
5. Grantor and Grantee shall not construct or place any structures on or make changes,
alterations or improvements to the Easement Property or do anything inconsistent with the use of
the Easement Property by the parties hereto without the prior written consent of the other parties.
6. Grantee agrees to secure and pay the premium for liability insurance with respect to the
maintenance, repair and use of the Easement Property in an amount of not less than
$1,000,000.00 from an insurer of recognized financial responsibility qualified to do business in
Florida which is reasonably acceptable to Grantor. Grantor shall be named as an additional
insured. The foregoing amount of insurance must be increased by Grantee as may from time to
time be reasonably required by the Grantor. In the event Grantee believes the Grantor's
requirement for such additional insurance is unreasonable, the reasonableness of Grantor's
2
demand for an increase in the amount of insurance hereunder shall be determined in accordance
with the rules of the American Arbitration Association. Such determination made in arbitration
shall be binding on the parties and such insurance shall be carried with the limits as thus
determined until such limits shall again be changed pursuant to the provisions of this Paragraph.
7. Grantor hereby grants, conveys, declares and creates for the benefit of Drive -In, its
successors and assigns, a perpetual, non-exclusive easement, in, upon, over, under and across the
Easement Property, more particularly shown on the attached Exhibit "C" in order to allow Drive -
In, and its successors and assigns, access to and use of the sewage lift station located within the
Easement Property. Drive -In shall be responsible for sixty-seven percent (67%) and Islander
Village shall be responsible for thirty-three (33%) of the repair, maintenance and replacement (if
necessary) of the sewer lift station located within the Easement Property. Drive -In, at Drive-
In's sole cost and expense, shall maintain their sewer pipes which benefit the Market Rate
Property in good repair and shall have the right of ingress and egress to install, maintain, repair
and, if necessary, replace, their sewer lines which are located within the Easement Property. The
foregoing right shall include the right to dig up those portions of the Easement Property as
necessary to repair or replace Drive-In's sewer lines; and, in such an event, Drive -In shall
provide Islander Village with reasonable notice. Islander Village shall in no way interfere with
Drive-In's use of said sewer lines. Drive -In and Islander Village hereby agree that the decisions
related to the repair and maintenance of sewage lift station shall be governed by a Master
Association, to be formed to govern the Affordable Property and the Market Rate Property.
8. Grantor hereby grants, conveys, declares and creates for the benefit of Drive -In, its
successors and assigns, a perpetual, non-exclusive easement, in, upon, under and across the
Easement Property for installation, maintenance and repair of underground utilities to service
and benefit the Market Rate Property, including but not limited to water and underground
electric lines. Drive -In, at Drive-In's sole cost and expense, shall maintain the utilities which
benefit the Market Rate Property and are located within the Easement Property in good repair
and shall have the right of ingress and egress to maintain, repair and, if necessary, replace, said
utility lines. The foregoing right shall include the right to dig up those portions of the Easement
Property as necessary to repair or replace Drive-In's utility lines; and, in such an event, Drive -In
shall provide Islander Village with reasonable notice. Islander Village shall in no way interfere
with Drive-In's use of said utility lines.
8. Drive -In shall indemnify, protect, defend and hold Monroe County and Islander Village
harmless from any and all liability, loss, damage, cost or expense (including but not limited to
attorneys' fees and court costs at the trial level and during appellate proceedings) which Monroe
County or Islander Village should incur as a result of or in connection with Drive -In, or Drive-
In's agents', contractors', successors' and assigns', use, repair and maintenance of the Easement
Property.
9. Islander Village shall indemnify, protect, defend and hold Monroe County and Drive -In
harmless from any and all liability, loss, damage, cost or expense (including but not limited to
attorneys' fees and court costs at the trial level and during appellate proceedings) which Monroe
County or Drive -In should incur as a result of or in connection with Islander Village's, or
Islander Village's agents', contractors', successors' and assigns', use of the Easement Property,
3
unless caused by Drive-In's failure to maintain or repair the roadway located within the
Easement Property.
10. Drive -In hereby acknowledges that Islander Village, its successors, assigns, invitees, and
contractors retain the right to use the Easement Property for access to the Affordable Property.
Additionally, Islander Village, its successors and assigns retain the right to use the sewage lift
station, as well as sewer lines servicing the Affordable Property. Notwithstanding anything
contained herein to the contrary, Islander Village's rights to use the Easement Property are
subject to the terms and conditions set forth in the Lease. Monroe County hereby acknowledges
that the grant of the easements set forth herein for the benefit of Drive -In shall survive
termination of the Lease with Islander Village. Therefore, the terms of this Agreement shall run
with and be appurtenant to the Market Rate Property. Therefore, this easement shall run with
the land forever and be binding upon and inure to the benefit of and be enforceable by the parties
hereto, their heirs, legal representatives, successors and assigns, including but not limited to the
homeowners' associations of the owners of the developments located on the Market Rate
Property and Affordable Property.
it. When a transfer of the entire ownership interest in the Affordable Property and Market
Rate Property takes place, the transferor shall be released from any and all further liability
arising hereunder after such transfer occurs; therefore, the liability under this Agreement arising
after said transfer shall automatically terminate as to the transferor and shall be automatically
assumed by and become the obligation of the transferee.
12 This Agreement may not be terminated or amended, modified, altered, or changed
in any respect whatsoever, except by a further agreement in writing duly executed by the parties
(or their successors or assigns) and recorded in Public Records of Monroe County, Florida. No
breach of the provisions of this Agreement shall entitle any party to cancel, rescind or otherwise
terminate this Agreement, but such limitation shall not affect, in any manner, any other rights or
remedies which any party may have by reason of any breach of the provisions of this Agreement.
13. This Agreement may be executed in counterparts, each of which shall constitute an
original, but all taken together shall constitute one and the same Agreement.
14. Nothing contained in this Access Agreement shall create or shall be deemed to create any
easements or use rights in the general public or constitute a public dedication for any public use
whatsoever.
15. In the event of any controversy, claim, or dispute relating to this instrument or the breach
of it, the prevailing party shall be entitled to recover reasonable expenses, attorneys' fees, and
costs.
16. If any provision of this Agreement, or the application thereof to any person or circumstance
shall to any extent be invalid or unenforceable, the remainder of this Agreement, or the
application of such provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and each provision of this Agreement
shall be severable and valid and enforceable to the fullest extent permitted by law.
rd
17. All notices, consents, approvals or other communications hereunder shall be in writing and
shall be deemed properly given if sent by United States certified mail, return receipt requested,
addressed to the appropriate party or successor -in -interest.
18. This Agreement shall be construed in accordance with the laws of the State of Florida.
All parties acknowledge and agree that in the event of any dispute arising under this Agreement,
the sole jurisdiction for such dispute shall be in Monroe County, Florida.
19. For the purposes of interpreting any ambiguity arising under this Agreement, no party
shall be considered the "drafter" of same.
20. Each party to this Agreement agrees to waive a jury trial on any dispute arising under this
Agreement and each party agrees to have any dispute heard by the court without a jury.
21. The undersigned hereby represent and warrant that all action, approvals and consents
necessary for the execution of this Agreement have been taken or obtained, and the persons
executing this Agreement are authorized and directed to execute this Agreement on behalf of
Drive -In, Ltd., Islander Village, LLC and Monroe County.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
(SIGNATURE PAGES TO FOLLOW)
SIGNATURE PAGE 1 OF 2
IN WITNESS WHEREOF, the parties have executed this Agreement this day of
, 2007.
Witnesses:
Print
Print Name
DRIVE-IN, LTD., a Florida limited partnership
By:
Printed Name:
ITS:
STATE OF FLORIDA y - '�-
COUNTY OF MONROEd
On this day of speared
as + 1=tonally
known to me, and who acknowledged executic '^
My Commission Expires: (Seal)
Witnesses:
Print
io'�Ri.F'l'd:>s
STATE OF FLORIDA
COUNTY OF MONROE
ISLANDER VILLAGE, LLC
By::
Printed Name:
ITS:
On this day of 2007 before me personally appeared
as of Islander Village, LLC, who is
personally known to me, and who acknowledged execution of the foregoing instrument.
My Commission Expires: (Seal)
Notary Public
Print Name:
13
SIGNATURE PAGE 2 OF 2
(Seal) BOARD OF COUNTY COMMISSIC
OF MONROE COUNTY, FLORIDA
ATTEST: DANNY L, KOLHAGE, Clerk
By: By:
Deputy Clerk Mayor Mario DiGennaro
MONROE COUNTY ATTORNEY
APPROVED 6S TO FARM:
SU�TA'
YSS ITDate
EY
7
EXHIBIT "A" TO GRANT OF EASEMENT
BETWEEN MONROE COUNTY, FLORIDA,
ISLANDER VILLAGE, LLC AND DRIVE-IN, LTD.
"Affordable Property"
LEGAL DESCRIPTION
A parcel of land on Stock island, being a part of Block 59, MALONEY SUBDIVISION,
acoording to the Plat thereof; as recorded in Plat Book 1, at page 55, of the Public Rec Wds of
Monroe County, llcdda, and adjacent submerged Iands, said parcel being more particularly
described by metes and bounds as follows:
Commencing at the Wly Right -of -Way Line of Cross Sheet and the S'ly Right -of -Way Line of
Fifth Avenue and run thence West along ffie S'ly Right -of --Way Line of tha said Fifth Avenw
for a distance of 450.00 feat to the Point of Beginning; them continue West and along the S' ly
Right -of -Way Line of The said Fifth Avenue for a distance of 691.45 fcet; thence run South for
a distance of 79.47 feet; thence run S 3000'00" W for a distance of 88.04 fact to a ctm,
concave to the Northam and having for its elements a radius of 157.0 feet, and a delta of
43TW; thence nut SE'ly along the roc of said curve fora distance of 117.83 fleet to the end of
said curve; thence rem S 40°b0'00" E for a distance of 193.23 feet to a carve, concave to the
North and having for its elements a radius of 92.0 feet and a delta of 95°00% thenoo run SE'ly
and NE'ly along the arc of said curve for a distance of 152.54 feet: to the end of said cure;
thence run N 4M'00" E for a distance of 406.95 feet to a curve, concave to the Northwest
and having for its ekmants a radius of 97.0 het, and a delta -of 11049'24"; thence run NE'iy
along the are of said curve for a distance of 17.95 feet; thence run East for a distance of 37.33
feet; *snce run S 74°58' I5- B for a distance of 7232 feet to a point that is due South of the
Point of Bruning; thence run North for a distance of 139.88 fleet back to 511y Right -of --Way
Line of the said Fifth Avenue and the Point of Beginning, containing 4.69 a m more or less.
EXHIBIT
A
EXHIBIT `B" TO GRANT OF EASEMENT
BETWEEN MONROE COUNTY, FLORIDA,
ISLANDER VILLAGE, LLC AND DRIVE-IN, LTD.
"Market Rate Property"
LEGAL DESCRIPTION
Lots 1 thru 6, inclusive, and the West one-half of Lot 7, Block 59, MALONEY SUBDIVISION
of Stock Island, Monroe County, Florida, as recorded in Plat Book 1 at Page 55 of the Public
Records of Monroe County, Florida.
ALSO
A parcel of bay bottom land in the Straits of Florida being described by metes and bounds as
follows: Commence at the intersection of the South line of Fifth St. and the West line of Cross
St. according to said MALONEY SUBDIVISION and run thence West along the South line of
said Fifth St. and the South line of Fifth St. extended, a distance of 1150 ft. to the Point of
Beginning; thence continue West for a distance of 350 ft. to the East edge of Cow Key Channel;
thence nin S 06' 00' W along the East edge of the said Cow Key Channel a distance of 700 ft.
more or less; thence run S 40' 00' E along the East edge of the said Cow Key Channel a distance
of 312.08 ft. more or less, to the North boundary of the parcel of land described in Official
Record Book 386 at Page 150 of the Public Records of Monroe County, Florida; thence run East
along the North boundary of the said parcel of land a distance of 918.58 ft. to the intersection of
the centerline of Lot 7, Block 59 of the said MALONEY SUBDIVISION extended southerly;
thence run North along the centerline of the said Lot 7 extended, a distance of 650 ft. more or
less, to the South boundary of the said Block 59; thence Southeasterly and Northeasterly
meandering the South and West boundary of the said Block 59, a distance of 1400 ft. back to the
Point of Beginning.
LESS AND EXCEPT:
A parcel of land on Stock Island, being a part of Block 59, MALONEY SUBDIVISION,
according to the Plat thereof, as recorded in Plat Book 1, at Page 55, of the Public Records of
Monroe County, Florida, and adjacent submerged lands, said parcel being more particularly
described by metes and bounds as follows:
Commencing at the W'1y Right -of -Way Line of Cross Street and the S'ly Right -of -Way Line of
Fifth Avenue and run thence West along the S'ly Right -of -Way Line of the said Fifth Avenue for
a distance of 450.00 feet to the Point of Beginning; thence continue West and along the S'ly
Right -of -Way Line of the said Fifth Avenue for a distance of 691.45 feet; thence run South for a
distance of 79.47 feet; thence run S 3°00'00" W for a distance of 88.04 feet to a curve, concave
to the Northeast and having for its elements a radius of 157.0 feet, and a delta of 43°00'; thence
run SE'ly along the arc of said curve for a distance of 117.83 feet to the end of said curve; thence
run S 40000'00" E for a distance of 183.23 feet to a curve, concave to the North and having for
its elements a radius of 92.0 feet and a delta of 95*00'; thence run SE'ly and NE'ly along the arc
of said curve for a distance of 152.54 feet to the end of said curve; thence run N 45100'00" E for
a distance of 406,95 feet to a curve, concave to the Northwest and having for its elements a
radius of 87.0 feet, and a delta. of 11*49'24' ; thence nun NE'ly along the arc of said curve for a
distance of 17.95 feet; thence run East for a distance of 37.33 feet; thence run S 74058' 15" E for
a distance of 72.32 feet to a point that is due South of the Point of Beginning; thence run North
for a distance of 139.88 feet back to the S'ly Right -of -Way Line of the said Fifth Avenue and the
Point of Beginning.
EXHIBIT
EXHIBIT "C" TO GRANT OF EASEMENT
In BETWEEN MONROE COUNTY, FLORIDA,
�ISLANDER VILLAGE, LLC AND DRIVE-IN, LTD.
"Easement Property"
PROPOSED EASEMENT FOR ROADWAY AND UTILITIES:
A parcel of land on Stock Island, being a part of
Block 59, MALONEY SUBDIVISION, according to the plat
® thereof, as recorded in Plat Book 1, at Page 55, of
the Public Records of Monroe County, Florida, and
adjacent submerged lands, said parcel being more
particularly described by metes and bounds as
follows:
Commencing at the W'ly Right -of --Way Line of Cross
Street and the Sly Right -of -Way Line of Fifth Avenue,
and run West along the Sly Right -of -Way Line of
said Fifth Avenue for a distance of 510.00 feet to the
Point of Beginning; thence continue West along the
Sly Right -of -Way Line of the said. Fifth. Avenue for a.
distance of 47.18 feet; thence run South and at right
angles for a distance of 121.13 feet; thence run East
and at right angles for a distance of 37.33 feet to a
point on a curve, concave to the Northwest and
having for its elements a radius of 120.0 feet, a delta
of 23022 28", and a chord bearing of N 11 *41 '14 " E;
thence run NE ly along are of said curve for a
distance of 48.96 feet to the end of said curve;
thence run North for a distance of 73.52 feet back to
the S''ly Right -of -Way Line of the said Fifth Avenue
and the Point of Beginning.
BOUNDARY SURVEY FOR: Board of County Commissioner
Monroe County, Florida
Islander Village, LLC,•
SunTrust Bank of Miami;
Chicago Title Insurance Cornpa
Spottswood, Spottswood and SI
J., LYNN O)'LWN, INC.
rnn O'Mynn, PSM ----
d a Reg. 116298
February 25, 2007
EXHIBIT