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Item C18BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: July 16, 2008 Division: Housing & Community Development Bulk Item: Yes X No Department: Housing & Community Development Staff Contact Person: Lisa Tennyson/292-4462 AGENDA ITEM WORDING: Approval to rescind Grant of Easement previously approved and approval of revised version of Grant of Easement to Comcast of California/Colorado/Florida/Oregon, Inc. on the Islander Village workforce housing development property to permit the installation, operation, and maintenance of a broadband communications system. ITEM BACKGROUND: At their meeting on May 21, 2008, the Board approved a Grant of Easement to Islander Village, LLC and Comcast of California/Colorado/Florida/Oregon, Inc. concerning the Islander Village workforce housing development property, with two specific amendments to the document. However, the attached document has slight language changes from the version that the Board approved, and therefore requires the Board's approval before it can be executed. PREVIOUS RELEVANT BOCC ACTION: On July 19, 2006, Board approved proposed Agreement for Sale and Purchase of property on Stock Island for the purpose of providing for affordable/employee housing on land to be purchased by the County and a 99 year lease of the property to Islander Village, LLC for the purpose of constructing 89 affordable/employee housing units. On May 21, 2008, Board approved a Grant of Easement to Islander Village, LLC and Comcast of California/Colorado/Florida/Oregon, Inc. with amendments. CONTRACT/AGREEMENT CHANGES: There were minor language changes made: 1) "Comcast" was changed to "Grantee" throughout document; and paragraph 4 was changed from ........ in connection with Comcast's use of the Affordable Property." to read "...... in connection with Grantee's construction, use, maintenance, operation, alteration, repair, replacement, reconstruction, inspection and removal of the S, se." 2) The Exhibit A Legal Description has been attached. STAFF RECOMMENDATIONS: Approval TOTAL COST: NA BUDGETED: Yes No COST TO COUNTY: NA SOURCE OF FUNDS: REVENUE PRODUCING: Yes No X AMOUNT PER MONTH Year APPROVED BY: County Atty YES OMB/Purchasing N/A Risk Management N/A DOCUMENTATION: Included X Not Required DISPOSITION: AGENDA ITEM # Prepared by and Ret►u-n to: Spottswood, Spottswood & Spottswood 500 Fleming Street Key West, Florida 33040 GRANT OF EASEMENT THIS GRANT OF EASEMENT is entered into this � day of May, 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, COMCAST OF CALIFORNIAICOLORADOIFLORIDAIOREGON, INC. referred to 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 to provide broadband services, together with a reasonable right of ingress and egress over said property; and, WHEREAS, Islander Village has requested broadband services from Grantee; 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: 1. 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 Grantee, a perpetual, non-exclusive easement, in, upon, over and across the Affordable Property for broadband services, together with the reasonable right of ingress and egress over said property so as to afford Grantee reasonable use and enjoyment of this easement for the purposes of providing utility service broadband services to the Project; provided, however, any future installation will be subject to the approval of Islander Village. Islander Village and Monroe County grant to Grantee the right to construct, use, maintain, operate, alter, add to, repair, replace, reconstruct, inspect and remove at any time, and from time to time, a broadband communications system, (hereafter referred to as the "System") consisting of wires, underground conduits, cables, pedestals, vaults, and including but not limited to above ground enclosures, markers and concrete pads or other appurtenant fixtures and equipment necessary or useful for distributing broadband services and other like communications, in, on, over, under, across and along the Affordable Property provided, however, any future installations shall be subject to Islander Village's approval or that of its successors or assigns. Islander Village and Monroe County agree that the System on the Affordable Property shall be and remain the personal property of Grantee and may not be altered, obstructed, or removed with the express written consent of Grantee. Additionally, Islander Village and Monroe County grant to Grantee the right to cut and trim, from time to time, trees, brush, overhanging branches and other natural obstructions on the property, which may injure or unreasonably interfere with the full and complete use of the easement described herein, provided the foregoing rights do not unreasonably interfere with the rights of the residential unit owners in regard to their units. 4. Grantee 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 Grantee's construction, use, maintenance, operation, alteration, repair, replacement, reconstruction, inspection and removal of the System. 5. Grantee 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' association of the owners of the development 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, 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 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. ** SPACE BELOW INTENTIONALLY LEFT BLANK ** DD z OM Cn MO 0C Cn� �-< o> OO �z M IN WTINESS WHEREOF, the parties have executed this Agreement this day of May, 2008. Witnesses: ISLAN_DY.,R ViT; LLC Print Name: e� 1 Edwin O. Swift III, Manager Print Name: STATE OF FLORIDA COUNTY OF MONROE On this day of May, 2008. before me personally appeared Edwin O. Swift III, as Manager of Islander Village, LLC, who is personally kzZow__to me and who acknowledged execution of the foregoing instrument. M ! Notary Public ^ (SEAL) a,`c Marion lops Casas Commission # D0325062 �•. Expires July 21, 2008 '>>,FiBondadFroyFain -Insuronc®•Ina•800rat9 BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA Attest: DANNY L. KOLHAGE, Cleric By: Deputy Clerk Witnesses: Print Name: f t Print Name: :Aj. Mayor Mario DiGennaro COMCAST OF CALIFORNIA/ COLORAD O/FLORIDA/ORE GON, INC. By:: 61;�' Printed Name: Its: m �� VP 18601 NW 2nd Ave. Mlaml, FL 33169 STATE OF E (305) 770-M COUNTY OF fi?j j On this _/�� day of �W, �1008, before me personally appeared ` 70m OjAtfij , as Q&a V, C . of Comcast of California/Colorado/Florida/Oregon, Inc., who is personally known to me, and who acknowledged execution of the foregoing instrument. • {SEAL} zkm ELIZABETH M. HECM•MY COMMISSION #00611814 :Mn,tw1sit31�fi�r[ � -- 4 EXHIBIT 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 1, 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, said point also being the NW'ly corner 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 of 691.45 feet; thence run South 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 of43 degrees 00 ; thence run SE'Iy 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 to 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 152.54 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 elements a radius of 87.0 feet, and a delta of 1 I degrees 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 degrees 58' 15" 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 LINCOLN GARDENS NO.2 SUBDIVISION for a distance of 139.98 feet back to S'ly right- of-way line of the said Fifth Avenue and the Point of Beginning.