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Item H3 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: Janwuy 28.2009 Division: Growth Management Bulk Item: Yes...x..- No Department: Staff Contact: Andrew O. Trivette AGENDA ITEM WORDING: Approval of Easement by and 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. ITEM BACKGROUND: As the underlying long term lessor, Momoe County must consent to the easement from the Islander Village, LLC. to the Key West Resort Utilities Corp. to allow ingress and egress over said property for sewer service. Language in the previous easement was changed by the Key West Resort Utilities Corp. and the new language did not accompany the agenda item. PREVIOUS RELEVANT BOCC ACTION: April 18, 2007 - Approval of the long terms lease from Momoe County to Islander Village, LLC. November 19,2008 - Approval of Easement by and between the Momoe County and Islander Village, LLC and Key West Resort Utilities. CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Approval TOTAL COST: BUDGETED: Yes No COST TO COUNTY: SOURCE OF FUNDS: REVENUE PRODUCING: Yes No AMOUNTPERMONTH_ Year APPROVED BY: County Atty ~ OMB/Purchasing _Risk Management_ DOCUMENTATION: Included X Not Required_ DISPOSITION: AGENDA ITEM # Revised 11106 Prepared by and Return to; Spottswood, Spottswood & Spotts wood 500 Fleming Street Key West, Florida 33040 GRANT OF EASEMENT THIS GRANT OF EASEMENT is entered into this ~Rt1f day 04 ~ 2001:/ (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 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 Monroe County has purchased property from Drive-In Ltd. 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, Islander Village and Monroe County entered into a ninety-nine (99) year ground lease (hereinafter "Lease") recorded at Official Records Book 2301 at Page 365, 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 (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: 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. 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 wilI 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. Furthennore, 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 hannless 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 tenninated 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 a jury. 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 (1) year. t.M IN t WITNESS WHEREOF, the parties have executed this Agreement thi~ J f day of '.~tlAAf ... 2VOQ 3 Witnesses: ~~ Print Name: Attyc:f (lA:fll{ ~if."L'k.n."_~r STATE OF FLORIDA COUNTY ~ONROE On this . ayof OA, 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. /Jz~ ~ ~ Notary Public ::L:GE..~~:=--~ Edwin O. Swift III, Manager -- --. (SEAL) .~ MARION HOPE CASAS _ *: i"~ Commisalon 00 781580 \T Expires July 21,201.2 BorlllId 1IIru~1'liI____701' BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA Attest: DANNY L. KOLHAGE, Clerk By: Deputy Clerk By: Mayor Witnesses: KW RESORT UTILITIES CORP. ~~r STATE OF FLORIDA COUNTY OF MONROE On this ;l~1\... day of Dd-o~ 2008. before me personally appeared ])~..x\.. c...~\C::::-ll.. _ ..., as CieN\OI.:r"\t..- N.AN~cA of KW Resort Utilities Corp., who is personally known to me, and who acknowledged execution of the foregoing instrument. ""~ t1If1!)h.~ ~ I../- "......:+ GlU.lANSEIFBn' ~ary Public .~ . MYCCIMI.&IOH,oo_ ~ EXPIRES: SeIUmbIt 20.2011 "''POIf\.dt'O BondIcIlIlnIlIudgel_ s.w.. (SEAL) 4 MONROE COUNTY ATTORN~7 APP~ED AS TO FORM ~ ~ A~;Z~EY ASSTCNT C~y ATTORN~K-' Date '/Lnn .. I~, .;uJ(.f EXHIBIT A LEGAL DESCRIPTION A parcel ofland 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-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 10 the Point of Beginning, said point also being the NW'ly corner of LINCOLN GARDENS NO.2 SUBDIVISION, as recorded in Plat Book 5, at Page 90, of \he Public Records of Monroe County, Florida; thence continue Wesl and along the S'ly Right-of-Way Line of the said Fifth Avenuefor a distance of691.45 feet; thence run Soulh for a distance of 79.47 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 degretS 00'; thence run SE'ly along the arc of said curve for a distance of I t 7.83 feet to the end of said curve; thence run S 40 degrees 00' 00" E for a distance of 183.23 feet to a curve, concave to the North and having for its eJernents a radius of 92.0 feel and a delta of95 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 to the Northwest and having for its clements a radius of 87.0 feet, and a delta of II degrees 49' 24"; thence run NB'ly along the arc of said CUlVe for a distance of 17.95 feet; thence run East for a distance 007.33 feet; thence run S 74 degrees 58' IS. E for a distance of72.32 feello a point that is on the W'ly boundary line of me said LINCOLN GARDENS NO.2 SUBDIVISION; thence run North and along the Wly boundary line of the said LINCOLN GARDENS NO.2 SUBDIVISION for a discance of 139.88 feet back to S'ly righl- of-way line of the said Fifth A venue and the Point of Beginning. 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 -.:!L day of~~ 2008 (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 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 Monroe County has purchased property from Drive-In Ltd. 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, Islander Village and Monroe County entered into a ninety-nine (99) year ground lease (hereinafter "Lease") recorded at Official Records Book 2301 at Page 365, 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 (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 tenns 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: 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 a jury. 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 (1) year. IN WITNESS WHEREOF, the parties have executed this Agreement this , 2008. BALANCE OF PAGE INTENTIONALLY LEFT BLANK day of 3 Witnesses: ISLANDER VILLAGE, LLC By:: Print Name: Edwin o. Swift III, Manager Print Name: STATE OF FLORIDA COUNTY OF MONROE On this _ day of ,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. Notary Public (SEAL) BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA Attest: DANNY L. KOLHAGE, Clerk By: Deputy Clerk By: Mayor Mario DiGennaro Witnesses: KW RESORT UTILITIES CORP. By:: Print Name: Its: Print Name: Print Name: STATE OF FLORIDA COUNTY OF MONROE On this day of , 2008. before me personally appeared , as , of KW Resort Utilities Corp., who is personally known to me, and who acknowledged execution of the foregoing instrument. Notary Public (SEAL) "".ROE~"NEY ~ APPR D AS 0 ORM ., 'tt-- ~ D: d (./ C~../ 4 .