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Easement 01/28/2009 DANNY L. KOLHAGE CLERK OF THE CIRCUIT COURT DATE: February 4, 2009 TO: Andrew Trivette, Director Growth Management Division ATTN: Mayra Tezanos Executive Assistant Pamela G. H4.c. FROM: At the January 28, 2009, Board of County Commissioner's meeting the Board granted approval and authorized execution of the following: Contract Amendment to Contract PL-029 (now #08150) to change the grantor from Florida Department of Environmental Protection (FDEP) to Florida Fish and Wildlife Conservation Commission (FWC) and to modifY the type of grant reimbursement allowed under the contract to include "cost reimbursement". Enclosed is a duplicate original for your handling. ./ Easement between Monroe County and Islander Village, LLC, grantors and the Key West Resort Utilities, Corp. grantee and rescission of easement previously granted on November 19, 2008. Enclosed is the original Easement documentfor your handling. Should you have any questions please do not hesitate to contact our office. cc: County Attorney Finans;e File/ -- OK~~ErY ~~~!'!3~E (305) 294-4641 Suzanne A. Hutton, County Attorney** Robert B. Shillinger, Chief Assistant County Attorney ** Pedro J. Mercado, Assistant County Attorney Susan M. Grimsley, Assistant County Attorney ** Natileene W. Cassel, Assistant County Attorney Cynthia L. Hall, Assistant County Attorney Christine Limbert-Barrows, Assistant County Attorney Derek V. Howard, Assistant County Attorney * * Board Certified in City, County & Local Govt. Law Fliclc ~ilelli Historic Tours of America 201 Front Street, Ste. 207 Key West, Fl. 33040 FlE: Islander Village & Easements Dear ~r. ~ilelli: (' .,'---....- January 20, 2009 BOARD OF COUNTY COMMISSIONERS Mayor George Neugent, District 2 Mayor Pro Tem Sylvia J. Murphy, District 5 Kim Wigington, District 1 Heather Carruthers, District 3 Mario Di Gennaro, District 4 Office of the County Attorney ll111th Street, Suite 408 Key West, FL 33040 (305) 292-3470 - Phone (305) 292-3516 - Fax You sent a duplicate easement to current ~ayor George Neugent on January 14,2009. Unfortunately, it was a duplicate of an easement which was executed and recorded in the Official Flecords of the County in June, 2008. Please be advised that HTA still needs an easement for KWFlesort Utilities. Also, please let HTA's attorney Erica Hughes-Sterling handle the legal documents, so that these documents do not get further confused. The document which was sent to the mayor and forwarded to my office will be retained on file here for the time that we are required to retain correspondence. Cc: ~ayor Neugent Belle DeSantis Erica Hughes-Sterling Susan Grimsley Prepared by and Return to: Spotts wood, Spotts wood & Spottswood 500 Fleming Street Key West, Florida 33040 GRANT OF EASEMENT THIS GRANT OF EASEMENT is entered into this?.?':' day 04 9~ 2009 (herein "Agreement"), by and between MONROE COUNTY, a political subdivision of the State of Florida, its successors and assigns, whose address is I 100 Simonton Street, Key West, Florida 33040 (herein "Momoe County"), and ISLANDER VILLAGE, LLC, a Florida limited liability company, its successors and assigns, whose address is 201 Front Street, Suite 224, Key West, Florida 33040 (herein "Islander Village"), collectively referred to herein as "Grantor", and KW RESORT UTILITIES CORP., a Florida corporation (herein "KW Resort"), whose address is 6450 E. Jr. College Road, Key West, Florida 33040 (herein as "Grantee"). RECITALS WHEREAS Momoe County has purchased property from Drive-In Ltd. and is now the owner of said real property located in Momoe County, Florida, which property is described on Exhibit "A" attached hereto and made a part hereof (herein "Affordable Property"); and, WHEREAS, Islander Village and Momoe County entered into a ninety-nine (99) year ground lease (hereinafter "Lease") recorded at Official Records Book 230 I at Page 365, pursuant to which Islander Village has leased the Affordable Property from Momoe County for the development and subsequent sale of eighty-nine (89) affordable units to individual unit owners (herein the "Project"); and, WHEREAS, the parties are desirous of entering into this Agreement to provide Grantee with a non-exclusive perpetual easement over, in, under and across the Affordable Property for public utility purposes, together with a reasonable right of ingress and egress over said property; and, WHEREAS, Islander Village has requested sewer service from Grantee for public utility purposes of the Project; and, WHEREAS, the parties have agreed, under the terms and conditions set forth herein, to grant to Grantee the right to use the Affordable 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: .-.--".-.".---...., I. 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. Islander Village and Monroe County hereby grant, convey, declare and create for the benefit of KW Resort, a perpetual, non-exclusive easement as reasonably necessary in, upon, over and across the Affordable Property for the connection and disconnection of sewer service, as well as the management, operation, maintenance and construction of public utilities, together with the reasonable right of ingress and egress over said property so as to afford KW Resort reasonable use and enjoyment of this easement for the purposes of providing sewer service to the Project; provided, however, any future installation will be subject to the approval of Islander Village. Additionally, Islander Village and Monroe County grant to KW Resort the right to construct, reconstruct, lay, install, operate, maintain, relocate, repair, replace, improve, remove and inspect sewer facilities and all appurtenances thereto within the Affordable Property provide the foregoing rights do not unreasonably interfere with the rights of the residential owners in regard to their units. Furthermore, Islander Village, its successors, assigns or designees reserve the right at any time in the future, and from time to time, to relocate any existing sewer lines, facilities and/or appurtenances thereto located within the Affordable Property provided Islander Village shall bear the cost of any relocation or modification of said facilities when the change is necessitated by Islander Village. Notwithstanding this grant of easement, KW Resort is under no obligation to manage, construct, lay, install, operate, maintain, relocate, repair, replace, improve, remove or inspect the sewer facilities in the Affordable Property. 4. KW Resort shall indemnify, protect, defend and hold Grantor 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) in which Grantor should incur as a result of or in connection with KW Resort's use of the Affordable Property. 5. KW Resort hereby acknowledges that Islander Village, its invitees, and contractors retain the right to use the Affordable Property. Monroe County hereby acknowledges that the grant of the easement set forth herein which encumbers the Affordable Property shall survive termination of the Lease with Islander Village. This easement shall run with the Affordable Property 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 Affordable Property. 6. 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, 2 ---~.~.-... 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. 7. 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. 8. Nothing contained in this Easement 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. For the purposes of interpreting any ambiguity arising under this Agreement, no party shall be considered the "drafter" of same. 14. 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 ajury. 15. 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. 16. This easement shall terminate if at any time its use is discontinued for one (I) year. ,U1 IN, WITNESS WHEREOF, the parties have executed this Agreement thi'~L day of .1V'}.W. "''''1 _, 2C'oq 3 Witnesses: ( . / /I), '~"';',"" (-di/tL/ Print Name: l ,Ai:.. ;,' i '/I-;fll! ~..L.' __'__'" _.~.' .._~C4'=-:r...~'--' P~ .,~. .'J ."t'. (' ame. ./ ...~u. (J~."."" U STATE OF FLORIDA COUNTY OF ~ONROE On this ~C1ay of CO/., 2008. before me personally appeared Edwin O. Swift III, as Manager of Islander Village, LLC, who is personally known to me, and who acknowledged execution of the foregoing instrument. % ' c..../. ,(' /1 '11.<~,~v hy-<._ (.';tf~t''''- Notary Public (SEAL) (l~' .~, MARION HOPE CASAS t; i'j Commission DO 781580 \il~ ,,,l>:Z! Expires JU/y21, 2012 './fr..tw.;.... BolIIJtd'11wuTloy"'JntUIWt/J00..385.7tllg BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY. FLORIDA B/6~ ~ . .;,.\ Aitest: DANNY L. KOL George R. Mayor Witnesses: :.::;;:z. vV Print Name:...:;JL:l. .c Print N~'-~</\"""- KW RESORT UTILITIES CORP. ~,cv;'>fJL Its: (n. h 1(" STATE OF FLORIDA COUNTY OF MONROE On this;:l.)?"" day of (>.~~ 2008. before me personally appeared n,-,->c C.fWL\~ , as c.;t,""i.~ NMJ.~,c..(~ of KW Resort Utilities Corp., who is' personally known to me, and who acknowledged execution of the foregoing instrument. ~.---/ . . r;:::;-/#, ,.......-;;; ~~ fA.i~:;"..e - ~ ........... GIl.UAHSEIFEIlT otary Public . ~ . MY COII!fISSlOH, DO 111123! .,. . EXPIRES: s.ptemlltr 20, 2011 "~Off\.rJf-~ BonotdThruIkldgttHoWySIMcH (SEAL) 4 MONROE COUNTY ATTORN. APPR,0VED AS TO FORM I I' ~ '-0 41 Ii -:' '>""<..4 " s0 AN M. GRIM;(EY ASSIS;rANT COuNTY ATTORNF/ Da~e A..it'I.',/1,L,t, /1, #2(,....1 -----...... EXHmIT A LEGAL DESCRIPTION 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 I, 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-DC-Way Line of Fifth Avenue and run thent:c 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, said point also being the NW'ly comer of LINCOLN GARDENS NO.2 SUBDIVISION, as recorded in Plat Book 5, at Page 90, of the Public Records of Monroe County, Florida; thence continue West and along the S'ly Right.of.Way Line of the said Fifth Avenue for a distance of691.45 feet; thence run South for a distance of79.47 feet; thence run S 3 degrees 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 degrees 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 degrees 00' 00" E for a distance of 183.23 feet 10 a curve, concave to the North and having for its elements a radius of 92.0 feet and a delta of 95 degrees 00'; thence run SE'ly and NE'ly along the arc of said curve for a distance of' 52.54 feet to the end of said curve; thence run N 45 degrees 00' 00" E for a distance of 406.95 feet to a curve, concave 10 the Northwest and having for its elements a radius of 87.0 feet. and a delta of II degrees 49' 24"j thence run NE'ly along the arc of said curve for a distance of 17.95 feetj them::e run East for a distance of 37.33 feet; thence run S 74 degrees 58' IS" E for a distance of 72.32 feet to a point that is on the W'ly boundary line of the said LINCOLN GARDENS NO.2 SUBDIVISION; thence run North and along the W'ly boundary line of the said LrNCOLN GARDENS NO.2 SUBDIVISION 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.