02/13/1990 k
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EASEMENT AND OPERATION AGREEMENT
AGREEMENT made as of the /31A day of , 1990 by and
between PHILIPS SHOPPING CENTER FUND LIMITS PARTNE HIP, a Delaware
limited partnership, having its principal office at c/o Philips
International Holding Corp., 417 Fifth Avenue, New York, New York 10016
(herein referred to as "PHILIPS ") and MONROE COUNTY, a municipal
corporation, having offices at Public Service Building, Wing III, Stock
Island, 5825 Junior College Road West, Key West, Florida 33040 -4399 (herein
referred to as the "County ").
WITNESSETH:
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WHEREAS, the County has acquired the land, library building and
improvements located thereon, in the County of Monroe, State of Florida,
more particularly described in Part I of Exhibit A attached hereto and made
a part hereof and depicted on Exhibit B attached hereto and made a part
hereof (hereinafter referred to as the "Property" or "Library "), which
Property abuts the land, and retail buildings and improvements located
thereon, owned by PHILIPS and described in Part II of Exhibit A attached
hereto and also depicted on Exhibit B hereto (the "Shopping Center "); and
WHEREAS, the parties desire to enter into the following agreements
regarding the use of the Property, and said conveyance is subject to the
terms and conditions hereof.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged by each, the parties agree
as follows:
1. (a) PHILIPS hereby grants to the County a non - exclusive
easement for ingress and egress to and from the Property across the parking
areas, entrances, exits and driveways located on the Shopping Center, (the
"Common Areas "). PHILIPS may from time to time without notice to or
consent of the County change the location of the buildings and improvements
on the Shopping Center and the size and configuration of parking areas,
entrances, exits and driveways for the Shopping Center; provided, however,
that any such change shall not reduce the number of parking spaces readily
accessible to the library building, without the County's consent, which
consent shall not be unreasonably withheld, delayed or conditioned.
(b) PHILIPS hereby grants to the County a non - exclusive
right to connect to and utilize the utility service lines on the Common
Areas installed by PHILIPS, provided, however, that in connecting to such
utility lines the County shall not impede or restrict vehicular or
pedestrian traffic upon and across the parking areas, entrances, exits and
driveways located within the Common Areas. All utility lines shall be
mmderground. No utility lines shall be installed without the prior
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approval of PHILIPS, and the County shall complete installation of the
utility lines as soon as possible following the commencement of
installation and restore any property affected thereby to as good (or
better) condition as existed prior to installation. Any installation shall
be performed in a manner so as not to unreasonably interfere with the
operation of the Shopping Center.
(c) PHILIPS hereby grants to the County a non - exclusive
right to connect to and utilize the storm and sanitary sewer lines and
wastewater treatment plant installed by PHILIPS, provided that the County
shall pay its pro rata share of the cost to maintain and operate such
facility. For purposes hereof, the County's pro rata share shall be three
and six - tenths percent (3.6 %); provided, however, that such percentage
shall be subject to periodic adjustment (but not more often than once every
twelve (12) months) if the County's actual pro rata share of the cost to
maintain and operate the facility (based on its use of the wastewater
treatment plant compared to the other users of the facility expressed as a
percentage) is more or less than the County is then paying, but in no event
shall the County pay less than three and six - tenths percent (3.6 %) of the
cost to maintain and operate the wastewater treatment plant. If such bill
is not paid within fifteen (15) days, interest shall accrue on the unpaid
amount at the rate of eighteen percent (18 %) per annum, or the highest rate
permitted by law, whichever is lower, until paid. The prevailing party in
any litigation brought to recover any such sums expended by PHILIPS shall
be entitled to recover, in addition to any other damages awarded by the
court, its court costs and reasonable attorneys' fees incurred in
connection with such litigation.
2. (a) No use of the Property shall interfere with the use of
the Common Areas or impede the free flow of pedestrian or vehicular traffic
thereon.
(b) In the event the County shall receive from a third party
at any time a bona fide offer to purchase the Property and the County shall
decide to accept the offer, the County shall promptly give Philips notice
of the terms and copy of such offer and of the County's willingness to sell
the Property for the price and on the terms offered, and Philips shall have
the Right of First Refusal to purchase the Property for the same price and
on the same terms such Right of First Refusal to be exercised within twenty
(20) days after Philips receives notice from the County, by Philips
notifying the County in writing that it will purchase the Property for the
same price and on the same terms. In the event Philips shall not give the
County notice within said twenty (20) day period of its election to
purchase the Property for the same price and on the same terms contained in
said offer, Philips shall not be obligated to purchase the Property. If
for any reason the Property is not sold to such party notice of any
subsequent bona fide offers, acceptable to the County, shall be given to
Philips upon the same terms and conditions for acceptance or rejection as
hereinabove provided.
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1. While the property is owned by the County, or by a local,
state or federal government entity that takes the property in fee simple
by, through or under the County, the property may be used only for a public
library and related public purposes incidental to a library operation
(which shall include public meeting rooms, educational facilities or public
offices), and no other purpose.
2. There are hereby declared and established the following
restrictions and operating agreements regarding the Property:
(a) The Property and any improvements thereon shall be
continuously maintained and repaired, so as to at all times be in a first
class condition, free and clear of all debris.
(b) No use of the Property shall increase the fire hazard or
fire insurance rating for the Shopping Center or in any way present a
danger or hazard to the employees and customers of the Shopping Center.
The County shall not, without PHILIPS' prior written consent, keep anything
within the building on the Property nor use such premises for any purposes
which increases the insurance premium cost or invalidates any insurance
policy carried on the building or other parts of the Shopping Center.
(c) In the event of destruction or damage from fire or any
casualty to any buildings or improvements on the Property, the County
shall, at its sole cost and expense, promptly (i) rebuild and repair the
same to at least substantially the same size and as good a condition as
such was in immediately preceding such destruction or damage, or (ii) level
or pave the area where the buildings and improvements were destroyed or
damaged so that the affected area conforms substantially to the surrounding
areas.
(d) The County shall take such reasonable measures as
required from time to time to cause the library employees and customers,
and all other persons attending meetings or functions which are being held
in the Library to park their vehicles only in designated parking areas
within the Common Areas and not to interfere with the use of the Common
Areas of the Shopping Center or impede the free flow of vehicular or
pedestrian traffic thereon.
(e) The County may, at its own expense, from time to time,
make such interior non - structural alterations in and to its building as it
may deem necessary or suitable for its use thereof. The County shall not
make any exterior or structural changes to the building on the Property
without PHILIPS' consent, which consent shall not be unreasonably withheld,
delayed or conditioned. The term "structural changes ", as used herein,
shall not include moving of non -load bearing partitions, minor plumbing and
electrical work, modification and rearrangement of fixtures or other minor
changes.
(f) The County shall not erect, install or maintain any
temporary or permanent signs on the Property or on the exterior of its
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building, without PHILIPS' consent, which consent shall not be unreasonably
withheld, delayed or conditioned.
1. It is mutually agreed that this Agreement shall be construed
and interpreted as if drafted by each party and it is further acknowledged
that this Agreement is the product of negotiations between the parties, and
shall not be construed or interpreted against either party based on its
being the drafter of this Agreement.
2. All notices, requests, demands and other communications here-
under shall be in writing and shall be deemed to have been duly given if
mailed by registered or certified mail with postage prepaid:
(a) If to PHILIPS, to PHILIPS at the address set forth
above to the attention of Sondra B. Myer.
(b) If to the County, to:
Mayor of Monroe County, C/0 County Attorney 310
Fleming Street, Key West, FL 33040
with a copy to:
Monroe County Administrator, Public Service
Building, 5825 Junior College Road, Stock Island,
Key West, FL 33040.
or to such other addressees as shall be furnished in writing by either
party to the other.
3. The restrictions, covenants, obligations and agreements
contained herein shall run with the land, and shall be binding upon and
shall inure to the benefit of the heirs, personal representatives,
successors, transferees and assigns of the parties hereto.
4. In the event of any violation or threatened violation by the
County of any of the terms, covenants, restrictions and conditions
contained herein (i) PHILIPS shall have no obligation to enforce the terms
hereof, or any liability for any such breach by the County, and (ii) in
addition to the other remedies herein provided, any or all of the owners
and tenants of the Shopping Center shall have the right to enjoin such
violation or threatened violation in a court of competent jurisdiction.
The prevailing party in any litigation shall be entitled to recover, in
addition to any other damages awarded by the court, its court costs and
reasonable attorneys' fees incurred in connection with such litigation.
5. If any clause, sentence or other portion of this Agreement
shall become illegal, null or void for any reason, or shall be held by any
court of competent jurisdiction to be so, the remaining portions thereof
shall remain in full force and effect.
6. All conveyances of all or any portion of the Property subse-
quent to the date hereof shall recite that they are subject and subordinate
to the terms and provisions hereof.
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634925 OFF 1 1 2 7 XE2 0 7 9
IN WITNESS WHEREOF, the parties hereto have executed this Agree-
ment the day and year first hereinabove set forth.
WITNESSED:
PHILIPS SHOPPING CENTER FUND LIMITED
PARTNERSHIP ( "Philips ")
By: Nationwide Shopping Center, Inc.,
a Delaware corporation,
General Partner
, /1 4 , 1/ P)/i
By: g /�
So dra B. Myer
' , I Its: Vice President
■_` d A /Ai ..1g..
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(SEAL) BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
Atte • DANNY L. KCLEAGE, Clerk
'. G
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/T• �...��, �[O.� By:
Clerk a M yor /Chairman
STATE OF NEW YORK )
SS.
COUNTY OF NEW YORK )
of "� The fo w oing instrument was acknowledged before me this /� day
b9 ; by Sondra B. Myer, the Vice President of NATIONWIDE
SHOPPING O�ENTER, INC., a Delaware corporation, on behalf of the Corporation
and PHILIPS SHOPPING CENTER FUND LIMITED PARTNERSHIP, a Delaware limited
partnership.
otary Public, New York County
State of New York
My Commission Expires:
FRANCES CANO
NOTARY PUBLIC, 8tete of New York
No 31.4842036
Owned In New County
Commission tixpires Oc* bsr, 31, win
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SDM/11335/0439/AD7
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63925
Part I
A PARCEL OF LAND BEING A PORTION OF TRACT 'A" OF THE PLAT 'TRADE
WINDS' AS RECORDED IN PLAT BOOK 7 AT PAGE 42 OF THE PUBLIC RECORDS OF
MONROE COUNTY, FLORIDA, 111140 MORE PARTICULARLY DESCRIBED AS FOLLCUS :
COMMENCE AT THE SOUTHEAST CORNER OF SAID TRACT IA"; THENCE 140.0 t ' 0 0 ' W
ALONG THE EASTERLY LIMITS OF SAID TRACT "A' FOR 302.30 FEET; THENCE
S88 '52'S4'N FOR 2117.90 FEET TO Alf INTU3ECTION WITH A LINE BEING
237.91 FEET WESTERLY OF, AS MEASURED AT RIGHT ANQLE AND PARALLEL TO
SAID EASTERLY LIMITS OF TRACT "A ", SAID 1M'TERSECl1aI BEING THE POINT
OF BEGINNING OF THE HEREINAFTER DESCRIBED PARCEL OF LAND; THENCE
$0 ALONG SAID PARALLEL LINE FOR 79.33 FEET; THENCE 344'32'34'W
FOR 58.48 FES"T TO AN INTERSECTION WITH A L111 BEING 101.03 FEET
NORTHERLY OF, AS MEASURED AT RIGHT ANGLES AND PARALLEL TO THE
SOUTHERLY LIMITS OF SAID TRACT 'Ay; THENCE $88 ALCM SAID
PARALLEL LINE FOR 19.33 TO AM INTERSECTION WITH A LINE BEI)0 310.04
FEE? ' WESTEAL Y OF, AS MEASURED AT RIGHT ANGLES AND PARALLEL TO SAID
EASTERLY LIMITS; THENCE N0 00'W ALONG SAID PARALLEL LINE FOR 80.09
FEET; THENCE 14441$354w3 FOR 48.10 FEET TO AM INTERSECTION WITH A LINE
SUNG 303.30 FEET NORTHERLY OF, AS MIASU UD AT RIGHT ANGLES AND
PARALLEL TO SAID SOVI'lERLT LIMITS; THENCE N094$'54 ALONG SAID
PARALLEL LINE FOR 00.09 FEET TO THE POINT OF BEGINNING.
SAID PARCEL CONTAINS 13100 scum FEET OR 0.30 ACRES, MGRS oR LISS.
Part II
Tract A of TRADEWINDS, a Replat of Blocks 1,
2, 3 and the Adjoining Alleys, Naranja Road,
Maule Lane and Johnson Road of "Industrial
Acres" (P.B. 5, P.G. 15) Lying in Section 22,
Township 61 South, Range 39 East, Key Largo,
Monroe County Florida.
LESS the property described in Part I above.
EXHIBIT A
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