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Grant of Easement 08/20/2008 • DANNY L. KOLHAGE CLERK OF THE CIRCUIT COURT DATE: September 26, 2008 TO: Andrew Trivette, Director Growth Management Division ATTN: Mayra Tezanos Executive Assistant 0 ot FROM: Isabel C. DeSantis, D.C. At the August 20, 2008 BOCC Meeting, the Board granted approval and authorized execution of the following items: Revised version of a Grant of Easement to Bellsouth Telecommunications, Inc., d/b/a YAT&T Florida on the Islander Village workforce housing development property for communications purposes. Ground Lessor Estoppel and Attomment Agreement by Monroe County and Sea Grape ✓Apartments, Ltd. (Sea Grape Phase I) in favor of Neighborhood Lending Partners of South Florida, Inc. Grant of Easement and Right of Use Agreement(Access Easement) by and between Sea Grape Apartments, Ltd. and Sea Grape II, Ltd. Enclosed are fully executed originals of the above-mentioned for your handling. Should you have any questions please do not hesitate to contact our office. Thank You. cc: County Attorney Finance File 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 ('~/'- BOARD OF COUNTY COMMISSIONERS Mayor, Charles "Sonny" McCoy, District 3 Mayor Pro Tern Mario Oi Gennaro, District 4 Dixie M. Spehar, District 1 George Neugent, District 2 SylVia J. Murphy, District 5 O,Y,~ ~~~~E (305) 294-4641 e Office of the County Attorney 1111 1 th Street, Suite 408 Key West, FL 33040 (305) 292-3470 - Phone (305) 292-3516 - Pax * * Board Certified in City, County & Local Govt. Law , lillCEIVBD k.J Ocr 2 8 ZOOS October 27, 2008 Danny L. Kolhage, Clerk Board of County Commissioners County of Momoe 500 Whitehead Street Key West FL 33040 RE: Easement from Sea Grape Apartments Ltd. To Sea Grape II, Ltd. Dear Mr. Kolhage: At the August 20, 2008 regular meeting of the Board of County Commissioners, Item M-9 was approved by the Board. The item was an easement from Sea Grape Apartments Ltd. to Sea Grape II, Ltd. The legal description contained a scrivener's error which is corrected by the document attached herewith as "Exhibit 'A'-Easement Area," Please replace the incorrect version of Exhibit "A" with the attached, corrected version, Sincerely, ~~. ( Susan M. Grimsley ~ Assistant County Attorney SMG:lfd Enclosure: Corrected Exhibit "A" 3: o Ci ..... "'r> ~~~~~ n - , c::r . ~._- ...., = = ... o " -4 N co '! --;1 c 1_ I( 'y" ~ ~ :-1 / c4', Y:'~ _" 'i i'/' I't.,. t-_,.( ..'<1./ (( ,')( / ,.- 1_:' ~ ." ,- c.n c:o :'.J c . This Instrument Was Prepared By: Patricia K. Green, Esq. Stearns Weaver Miller Weissler Alhadeff & Sitterson, PA 150 West Flagler St., Suite 2200 Miami, Florida 33130 1- : ~ ; ~ e- f" ~"', ..\,.~ ..., ':,....1... l-' 2008 SEP 26 AM 10: 10 Record and Return To: Patricia K. Green, Esq. Steams Weaver Miller Weissler Alhadeff & Sitterson, P.A. 150 West Flagler St., Suite 2200 Miami, Florida 33130 Dld~;.;'l L..., eLK. C;,. ;_." . 1~' .,-, ..' ['''I!''!":" ',' r:-! I MOhdJt. ,UJ:tl I.: 1...', GRANT OF EASEMENT AND RIGHT OF USE AGREEMENT (Access Easement) This OraJ}t o~Easement ~se Agreement (the "Agreement") is made and entered into as of the JtY:!=- day of , 2008, by and between Sea Orape Apartments, Ltd. ("SOA"), having an address at 2950 S.W. 27TH Avenue, Suite 200, Miami, Florida 33133, and Sea Grape II, Ltd., a Florida limited partnership ("SO II"), having an address at 2950 S.W. 27TH Avenue, Suite 200, Miami, Florida 33133. RECITALS A. SOA is the owner of a long term leasehold interest in the property legally described on Exhibit "A" attached hereto and made a part hereof (the "Easement Area"). B. SO II is the owner of a long term leasehold interest in the property legally described on Exhibit "B" attached hereto and made a part hereof (the "Apartment Site"). C. For good and valuable consideration, SOA has agreed to grant to SO II, and its tenants, employees, agents, customers, invitees, successors and assigns, as an appurtenance to the Apartment Site, a perpetual, non-exclusive easement for vehicular and pedestrian ingress and egress over, across and through the Easement Area, and for other uses incidental to the development of the Apartment Site, as set forth below. AOREEMENT NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Recitals. The above recitals are true and correct and by this reference are incorporated as if fully set forth herein. 2. Easement. SOA hereby grants to SO II, for the use and benefit of SO II, its successors and assigns who acquire an interest in the Apartment Site (whether fee or leasehold), and its tenants, agents, employees, customers and invitees, a perpetual, non-exclusive easement for (i) vehicular and pedestrian ingress and egress over, across and through the Easement Area, (ii) the installation of utilities to service the Apartment Site, if necessary to route them through the Easement Area and (iii) signage, to the extent required in connection with the entrance feature for SO II's development of the Apartment Site. Nothing herein shall prohibit SOA's access to the Easement Area, for purposes consistent with its interest in same, without in any manner interfering with the use of the Easement Area by SO II. 3. Aoourtenant Easement. The easement herein granted shall be appurtenant to the Apartment Site. 4. Maintenance. It is acknowledged that the Easement Area will be used by SOA and SO II as a common driveway serving their respective properties. SOA shall be responsible for the initial improvement of the Easement Area as a roadway with grading, paving and curbing of the Easement Area, if it elects, at its option, to construct such roadway, which it is not obligated to bnild. Should it elect to construct such roadway, SOA shall be responsible for performance of all maintenance and repair of the Easement Area, and pay for 100% of the expenses of ordinary maintenance and repair of the Easement Area until such time as a building permit is obtained by SO II (or its successors or assigns) for any improvement of the real property owned by SO II. Thereafter, SOA shall be responsible for two-thirds (2/3) of the expenses of ordinary maintenance and repair of the Easement Area, and SO II shall be responsible for one-third (1/3) of the expenses of ordinary maintenance and repair of the Easement Area. Notwithstanding the foregoing, any party using the Easement Area which causes damage or disturbance of the Easement Area shall be responsible for any extraordinary maintenance or repair associated with such damage or disturbance. SOA shall have the right to select the contractor(s) of its choice in connection with all aspects of maintenance, repair and operation of the Easement Area. All improvement, use and repair of the Easement Area shall be in accordance with all applicable laws, orders and codes. SOA shall use reasonable efforts to tender maintenance invoices on a quarterly basis, but the right is reserved to alter the billing period in any manner consistent with SOA's bookkeeping procedures provided the billing period shall be no more often than monthly. 5. Indemnitv. Each of the parties hereto agrees to indemnifY the other and hold it harmless from and against any and a1lloss, cost, expense, claims or damages suffered by a party as a result of the negligent or willful act or omission of the other, its employees, agents and contractors, as a result of the exercise of the rights and obligations of the parties under this Agreement, except for any such liability, loss, damage, cost or expense as may arise in whole or in part from the acts of the party seeking indemnification. 6. Successors and Assigns. This Agreement shall bind, and the benefit thereof shall inure to, the respective successors and assigns of the parties hereto. 7. No Public Dedication. Nothing contained in this Agreement shall, in any way, be deemed or constituted a gift of or dedication of any portion of any lands described herein to the general -2- public or for the benefit of the general public whatsoever, it being the intention of the parties hereto that this Agreement shall be limited to and utilized for the purposes expressed herein and only for the benefit of the persons herein named. 8. Enforcement. In the event it becomes necessary for any party to defend or institute legal proceedings as a result of the failure of the other party to comply with the terms, covenants and conditions of this Agreement, the prevailing party in such litigation shall recover from the other party all costs and expenses incurred or expended in connection therewith, including, without limitation, reasonable attorneys' fees and costs, at all levels. 9. Notices to Mortgagees. Each of the parties agrees to furnish duplicate copies of any notices of default delivered to the other, to the holder of any mortgage lien encumbering their respective properties, provided that the identity and address of such mortgagees have been made known to the party sending any such notice. 10. Amendment. The parties hereto agree that this Agreement may not be amended, released or terminated without the prior written consent of the holder of any mortgage encumbering the property to be affected by such amendment. 11. No Partnershio. None of the terms or provisions of this Agreement shall be deemed to create a partnership between or among the parties in their respective businesses or otherwise, nor shall it cause them to be considered joint venturers or members of any joint enterprise. Each party shall be considered a separate owner, and no party shall have the right to act as an agent for another party, unless expressly authorized to do so in this Agreement. 12. Interpretation. No provision of this Agreement will be interpreted in favor of, or against, any of the parties hereto by reason of the extent to which any such party or its counsel participated in the drafting thereof or by reason of the extent to which any such provision is inconsistent with any prior draft hereof or thereof. 13. Counteroarts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute a single document. 14. Notices. All notices, demands, requests or other communications required or permitted to be given hereunder shall be deemed delivered and received upon actual receipt or refusal to receive same, and shall be made by United States certified or registered mail, return receipt requested or by hand delivery, and shall be addressed to the respective parties at the addresses set forth in the preamble to this Agreement. 15. Entire Ae:reement. This Agreement constitutes the entire agreement between the parties hereto relating in any manner to the subject matter of this Agreement. No prior agreement or understanding pertaining to same shall be valid or of any force or effect, and the covenants and -3- agreements herein contained cannot be altered, changed or supplemented except in writing and signed by the parties hereto. 16. Severability. If any clause or provision of this Agreement is deemed illegal, invalid or unenforceable under present or future laws effective during the term hereof, then the validity of the remainder of this Agreement shall not be affected thereby and shall be legal, valid and enforceable. 17. Venue: Jurisdiction. This Agreement shall be governed and construed in all respects in accordance with the laws of the State of Florida, without regard to its conflicts of laws provisions. Further, all parties hereto agree to avail themselves of and submit to the personal jurisdiction of the Courts of the State of Florida in Monroe County. SIGNATURES APPEAR ON FOLLOWING PAGE -4- IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date and year first set forth above. Witnesses: SEA GRAPE APARTMENTS, LTD., a Florida limited partnership. By: TCG Sea Grape, LLC, a Florida limited liability company, its general partner nnt Name: By: STATE OF FLORIDA ) ) SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this3D day nJtl;;- ,2008 by Lloyd J. Boggio as President of TCG Sea Grape, LLC, the general partner of S~~p f\partments, Ltd., a Florida limited partnership, on behalf of said company and as an act of said partnership. He is personally known to me or has produced as identificati~ Print or Stamp Name: ,uMARLE'NE"C'ASAR"SANCHEZ,ui Notary. P~blic, State of Florida ge #\\1~1#:~111~ Comm# 000689789 E COmmISSIOn No.: (m~) Expires 10/1912011 jMy Commission Expires: ~(}ff'.~~" FIOr!l'iE' UnteIY J"iJS(~" !l'le ~ ,f,.,....".. '{'. ,....,n".'ii -5- SEA GRAPE II, LTD., a Florida limited partnership By: CDG Sea Grape II, LLC, a Florida limited liability company, its general partner ~ ) By: Print Name: MIrIone SondIez Print N STAmOF~OIDDA ) )8S: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me thi~ daY~f ,2008 by Lloyd Boggio, as President of CDG Sea Grape II, LLC, the general partner of e Grape II, Ltd., a Florida limited partnership, on behalf of said company and as an act of sai partnership. He is personally known to me or has produced as identificatiCfn, .......In~u........... . !'II'MARLENE"CASAR SANCHEZ I Pnnt or Stamp Name: i p~.'..\ co~m# 000689789 iNotary. P~blic, State of Florida a : ~?~~~ Expires 10/1912011 :CorrumsslOn No.: ! "'.?r,"~'<Jl Flond, NotaryAssn.,lnc !My Commission Expires: ~ ".,,,. ., ~~~.'.UIII". e G:\W-RED\347S6 - Carlisle\089 - Sea Grape\I-Sea Grape Il\Easement-acces, SGA to SGUV2.wpd -6- JOINDER OF FEE OWNER (Easement Area Owner) The undersigned, Monroe County, a political subdivision of the State of Florida, as the Fee Simple Owner of the Easement Area described in the foregoing Grant of Easement and Right of Use Agreement (the "Easement"), does hereby acknowledge that the terms of the Easement are and shall be binding upon the undersigned and its successors in title. IN WI1NESS WHEREOF, these presents have been executed thisJlOlh day of A~J' ,2008. STATE OF (tor I Ja.. ~ Name:---11I'CPri 0 LX (9a.,nf/CUV Title: . ~ A TIEST: DANNY 1. KOLHAGE, CLERK ~~oL-Jc, ~ Deputy Clerk WI1NESSES: Print Name: Print Name: ) COUNTY OF )( Or] VOL) SS J/I ' D' ~EFORE ME, the undersigned authority, this day appeared /"l1Lf I 0 I (y'.Q/tfIMO known by me to be the ..M- a ~() r of Monroe County, a political subdivision ofthe state of Florida, and shelhe ac1rn wledged to and before me that shelhe executed the said instrwnent, acting in herlhis said official capacity, for and as to the act and deed of said County and in, its name, for the uses and .BJlfPoses therein mentioned, and after being duly authorized and directed. Sh@is: [iY'personally known to me, or [ ] produced as identification. WI1NESS my hand and official Seal in the County and State aforesaid, on this, the~O-{;j;y of A u q. , 2008. V JlJ~c.~ APPROVED4S fO FORM ~GAL SlJfFICIENCY BY . A..-.~ xiyi nOkNEYS OFFIC~ DATE. Ve~./~ /7,-.2m7F Notary Public State of ~\",'1ll1"'1\! ' ~~. C .,,1. My Commission Expires~~o,a. . DE~~/~ .;$' ~V::"""'" "Z ~ "~"""':'" ~~ '!iI: ,'0 -;;""N t<",', ~...'~ ~ :$ ~-'Cb~'.u'~ -7- ",,... ~~. '" - . . - -'.. .- ::~. '" . = s : iII:'lft :*= '" .~."""",~- . '" ~'Z.' ""lolIq : ~ ~'. ' .~;::; '" '.l):~..;\"'" ...........!;,;:; ~.~~.'J'.,* , ........:.:.~~ IIGl,STATE v' ~", .,~IIIIIII"\I\I~ JOINDER OF MORTGAGEE (Easement Area First Lender) The undersigned, Wachovia Bank, National Association, as Mortgagee (the "Mortgagee") under that certain Leasehold Mortgage, Security Agreement and Fixture Filing by Sea Grape Apartments, Ltd., a Florida limited partnership, in favor of Mortgagee, dated September 27,2007 and recorded in Official Records Book 2323 at Page 852 of the Public Records of Monroe County, Florida, covering all/or a portion of the Easement Area described in the foregoing Grant of Easement and Right of Use Agreement (the "Easement"), does hereby acknowledge that the terms of the Easement are and shall be binding upon the undersigned and its successors in title. It '1lJ.~ IN WITNESS WHEREOF, these pre ~ .2008. WITNESSES: day of Nam : '1. ~(~.CJc- Da<<:s m: rV1.~J1.6~ ~i('k..-htL Title: Print Name: ~~~ ~"V..M1 . - ---- ~ _'V J/... -_ . STATE OFi(DAft. ~ COUNTYOF~~SS ~ BEFORE ME, the undersigned authority, .this day appeared :r: . ~1ICknownbymetobethe r(}~~"5 [)cA.~WachoviaBank, National Association, and shelhe acknowledged to and before me that shelhe executed the said instrument, acting in her/his said official capacity, for and as to the act and deed of said association and in its name, for the uses and purposes therein mentioned, and after being duly authorized and directed. Shelhe is: ~ personally known to me, or [ ] produced as identification. ~ WITNESS my hand and official Seal in the County and State aforesaid, on this, the _ day of ~.~J.- ,2008. ~. ~~. ~ck Notary Public State of....vt~ C<<Ao D. ~.....l My Commission Expires: -8- ~--- ------...---' {'.~.. - : 'OFFICIAl SEAL . No1ary Public. North Carolina VINCENT M. 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CJl1D!2ii . i::lQyS:~", 9= fQfa9 :of !I 4 Q!i'~oa:a . s5%,o ~;...!J!i'8a "'....aaa. a.~;"i'q 4:111'- ~gg: ...r. ... 2.3- il,,- r;ll~::.. 0 ~~if og::. ~ 2. ~,. _ a... Q <l) r <0 -.... ..:l? Q... 0 . . SGA TO SGII ~CCESS EASEMENT EXHIBIT "B" APARTMENT SITE A parcel ofland in Section 11, Township 66 South, Range 32 East, Key Vaca, Monroe County, Florida, more particularly described as follows: Commence at the intersection of the East line of said Section II and the Southeasterly right of way line ofD.S. Highway 1; thence South along the said East line of Section 11 for 859.00 feet to the Point of Beginning; thence continue South along the said East line of Section II for 70.23 feet; thence West for 231.55 feet; thence North for 94.84 feet; thence Eastfor 140.00 feet; thence South for 24.61 feet; thence East for 91.55 feet back to the Point of Beginning. Containing 19,707 s.f. or 0.45 acres, more or less. SGA to SGU Access Easement H:\W-RED\34756 - Carlisle\089 - Sea Grape\l-Sea Grape II\Easement- access SG II. parcel II legal.doc