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Item M07 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: August 20, 2008 Bulk Item: Yes..lL No Division: Growth Management Department: Staff Contact Person: Andrew O. Trivette AGENDA ITEM WORDING: Approval to rescind Grant of Easement previously approved and approval of revised version of Grant of Easement to Bellsouth Telecommunications, Inc., d/b/a AT&T Florida on the Islander Village workforce housing development property for communications purposes. ITEM BACKGROUND: At their meeting on May 21, 2008, the Board approved a Grant of Easement to Islander Village, LLC and AT&T concerning the Islander Village workforce housing development property. However, the attached document has language changes from the version that the Board approved, as well as attachments to the document, 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 AT&T for public utility purposes. CONTRACT/AGREEMENT CHANGES: There were minor language changes made: The Grantee changed from AT&T to Bellsouth Telecommunications, Inc., d/b/a AT&T Florida; 2) public utility purposes has been changed to communication purposes throughout document; 3) last section of Paragraph 3 was changed to read: ... provided, however, any future significant installation or modification by AT&T of new facilities in the Easement Area or modification of AT&T of existing facilities in the Easement Area will be subject to the approval of Islander Village except for any emergency work for service restoration. It is understood and agreed that the initial installation by AT&T of facilities in the Easement Area will not require such approval. 4) Under Paragraph 6, added.. . recorded in Public Records of Monroe County, Florida, provided that Islander Village shall not be deemed such a party after termination of the leaseA) Under Paragraph 11, notice addresses were included 5) The Exhibit A Legal Description has been attached. 6) Consent and Joinder of Sublessees have been attached. ST AFF RECOMMENDATIONS: Approval TOTAL COST: NA BUDGETED: Yes No COST TO COUNTY: NA SOURCE OF FUNDS: REVENUE PRODUCING: Yes No-L AMOUNT PER MONTH_ Year APPROVED BY: County Arty YES OMB/Purchasing N/A Risk Management N/A DOCUMENTATION: Included --2L Not Required_ DISPOSITION: AGENDA ITEM # . Prepared by and Return to: Spotts wood, Spotts wood & Spotts wood 500 Fleming Street Key West, Florida 33040 GRANT OF EASEMENT THIS GRANT OF EASEMENT is entered into this _ 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, BELLSOUTH TELECOMMUNICATIONS, INC., d/b/a AT&T FLORIDA, whose address is 650 United Street, Key West, Florida 33040, (herein "AT&T") 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" or "Easement Area"); 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 communications purposes, together with a reasonable right of ingress and egress over said property; and, WHEREAS, Islander Village has requested service from Grantee for communications 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: 1 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 public utility purposes, 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 facilities for communications services; provided, however, any future significant installation by AT&T of new facilities in the Easement Area or modification by AT&T of existing facilities in the Easement Area will be subject to the approval of Islander Village, except for any emergency work for service restoration. It is understood and agreed that the initial installation by AT&T of facilities in the Easement Area shall not require such approval. 4. AT&T 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 AT&T's use of the Affordable Property hereunder. 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 Puhlic Records of Monroe County, Florida, provided that Islander Village shall not he deemed such a party after termination of the Lease. 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, hut 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. 2 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. All notices for Monroe County shall be sent to: Board of County Commissioners 1100 Simonton Street Key West, FL 33040 Attn: Office of the County Attorney All notices for Islander Village, LLC shall be sent to: Edwin O. Swift III, Manager Islander Village, LLC 201 Front Street, Suite 224 Key West, FL 33040 All notices for AT&T shall be sent to: BellSouth Telecommunications, Inc. 9101 SW 24th Street Miami, FL 33165 Attn: Director, Network Services 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. 3 IN WITNESS WHEREOF, the parties have executed this Agreement this _ day of _,2008. ISLANDER VILLAGE, LLC BY~.-- Edwin O. Swift III, Manager ~ -.::: Witnesses: Print >6"'\ STATE OF FLORIDA COUNTY OF MONROE On this _ day of i/t i. , 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 instrumen~ ~~ ,,-:,:}!;L'f.Vt- Marion Hope C8$8S No ary Publtc (SEAL~:t"~"'8 Co~mission # 00325062 ~,,~~,,:- Expires July 21, 2008 ~fr.:':\" BondodTroyFain-l<lsuronco.1nc &:lO-:l85.7019 BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA Attest: DANNY L. KOLHAGE, Clerk By: Deputy Clerk By: Mayor M~BIOOlINTY ATTORNEY APPROV If.\S FORM: , Witnesses: SUSAN M. IMSLEY ASSISTANT COUNTY ATTORNEY Date '7 - / r-Or BELL SOUTH TELECOMMUNICATI AT&T FLORID ~ t-,' h ~~~~~ STATE OF FLOPJDA~e..o~ LL COUNTY OF MONROE ~\ ~ On this ~ day of -::r~, 2008. before me personally appeared ~ ~ c-Y-. ~e.Z:. , as \ \\ \ u.. It..l~~ of BELL SOUTH 4 TELECOMMUNICATIONS, INC., who is personally known to me, and who acknowledged execution of the foregoing instrument. r\lJ^'II~ i\-~ ~ (SEAL) Notary Public Gwinnett County, Georgia My Commission Expires Aug. 27, 2008 5 - CONSENT AND JOINDER OF SUBLESSEE The undersigned Sublessee from, Sublessor Islander Village, LLC, the lessee under that certain Lease dated April 18, 2007, and recorded at Official Records Book 2301, Page 365, of Monroe County, Florida, hereby consent and joins in the foregoing Easement to BELLSOUTH TELECOMMUNICATIONS, INe. d/b/a AT&T FLORIDA WITNESS: SUBLESSEE: ~J ~ Print ame: Diane T. illO (Mailing Address) STATE OF -J.:i {j fL,'J'A COUNTY OF _ f"VU>r1rl'< ~ j)::;"Oing instnnnent was acknowledged before m~ thi~ay of .. y; , (.., 2008, by __ . I" r;;. at ^ ~ Q ""-A., ~~tt 1 '-'j.. ~ GJrtJ Such person did/did not take an oat nd: (notary must check applicable box) Personally Known OR Produced Identification Type oJ..klentification Produced: ~ current Florida Driver's License as identification, number Or produced Il~ jiden~ Notar {Notary Seal must be affixed} ,"-;'{'ffltf Diane T Ce~~tillo ~o."!',' ....(~ -, ." . .~t: =:; . .~:: corr.~;n:'~~_.ion ~ ~ /U.,JS9v~) ~j:. r.~ EXPIre". uecenlber 3, 2009 '''II;'fir if"'" ~ Trwy P~tli J:n1it#i'lft(o~ If"- aoo-385~7019 CONSENT AND JOINDER OF SUBLESSEE The undersigned Sublessee from, Sublessor Islander Village, LLC, the lessee under that certain Lease dated April 18, 2007, and recorded at Official Records Book 2301, Page 365, of Monroe County, Florida, hereby consent and joins in the foregoing Easement to BELLSOUTH TELECOMMUNICATIONS, INe. d/b/a AT&T FLORIDA I WITNESS: I I I I prin~~~.stertfn9 I !6Cf~1\JJ(AA'.J Pnnt NeEfSY TURSO SUBLESSEE: ~ 0 ~(}D~ By: (Mailing Address) ,,, STATE OF ~tllL COUNTY OFV\ VUe.-- The foregoing instrumrt.:;as acknowledged before me this ;rflJay of JW1L, 2008, by tAJV1y\Ll ~ DQ\ U Such person did/did not take an oath and: (notary must check applicable box) Personally Known OR /' Produced Identification T~f Identification Produced: _ a current Florida Driver's License as identification, number Or produced ~\\\\\\\\Il /l11/1111/, ~"\ t4\. S rJ::<. 'Ii<< {Notary Seal must be affixed} ~~'{. . . ., . :--/t(~%: ~~ . . ... .:;;:: ;:::/~. ;\.'oer 2; ..;-::; ::::::~" e~ >~ ~"-). ~ 0 as identification. _ _._'D .*_ ;: ~.. #DG501iGO :;'<.2 ~~ f;l , .:::::..)~~ ~ ~,.. (,I/:Of<, r':'i -' .::t= ~"' ~ 1>;.. . . ,C)_", ~ /)U:. 0'" ~'<v~> ~Ij, 'Bt;C. SIti.\\ \~. \\\" IIIIIII//llil\\'\\\ CONSENT AND JOINDER OF SUBLESSEE The undersigned Sublessee from, Sublessor Islander Village, LLC, the lessee under that certain Lease dated April 18, 2007, and recorded at Official Records Book 2301, Page 365, of Monroe County, Florida, hereby consent and joins in the foregoing Easement to BELLSOUTH TELECOMMUNICA TIONS, INe. d/b/a AT&T FLORIDA WITNESS: SUBLESSEE: ~J1?7 / \ L '____ Pn ame: BfCAN. ~ Prin~~~. StAlling w1imtVI JI U () -11- I (Mailing Address) STATE OF rl~vid.A.. COUNTY OF MoV\V\)l..- The forelLMtrument was acknowledged before me this ~y of~, 2008, by M( -te\1 ( VV\{l,Vl Such person did/did not take an oath and: (notary must check applicable box) Personally Known OR V Produced Identification Type 9f Identification Produced: ~a current Florida Driver's License as identification, number Or produced as identification. {Notary Seal must be af\\~~HlI/lIl/l/, J A k /\ ~\"..~ S or ~ IIII/, IV \ 4 V V J ~:..J \'t~'.. . ~~/ ~ ~ ~ . . ,.... ~ ~. C:"{'/j. ,~ ~ .:::: . (;~ ,('0. "G "- / j ~,_ . ^ ~ ~/Jj ..l.. q';- '=:('; ~', .".__ ~...,: ~ ~' -s. '* ~ =*_ 0 ~.-~ '---' ,j;'" = _ .,n .._.~_ ::::::: . "[iif,'.}11bu;" C:I::::: ....-.~. 1r~~~ '.~~ ~ 0.... . t::::I ~ ~~. .~~ ~ ij/ ' . . . .'~ ~ ~<< PUIJuc, ij'\I>"\\ \\~~ 'I11/I/JlIHI \\\\\,\ CONSENT AND JOINDER OF SUBLESSEE The undersigned Sublessee from, Sublessor Islander Village, LLC, the lessee under that certain Lease dated April 18, 2007, and recorded at Official Records Book 2301, Page 365, of Momoe County, Florida, hereby consent and joins in the foregoing Easement to BELLSOUTH TELECOMMUNICA nONS, INC. d/b/a AT&T FLORIDA I WITNESS: i I ! SUBLESSEE: ~tM. P Name: enny M. Sferling ~ ,~ BY:CXlnstu~ S. 6n~CJ2. 9)30 5+1-0 ~, PWi 13 '4':/'1 ~l~+ I :PC .53040 ~ (J\1ailing Address) STATE OF ftOv1d~ COUNTY OFlVlOVlt1) e- heJoregoing instru~ent was acknowledged before me this 3tL-tt;1ay ofJ\A1lt, 2008, by V1 Y Such person did/did not take an oath and: (notary must check applicable box) ,Personally Known OR ,./ Produced Identification TypeA Identification Produced: ~ a current Flonda Dnver's LIcense as IdentificatIOn, number Or produced as identification. {Notary Seal must be affixed} ~\\\\\\\ t 1IIIIIlilil #'\ '!..J?rS I/;% ,;::::..:'~ . c,.",>,c ""1,,,' ~'l :::;::);'f. c~ <,,'Jer ,,: 1 '-5>.' "" =:::;. ~*"4.I.';;.0 '~\~'~^--;::.. ~...,. ~ i;J '& :f. ..\.1.4' ~ =*. 0 -e- (0 .* ~ z'. #00501160 ,l:2J .::::- -::=:: ~ 'i. 0 ,;.""" ~ ~ -?'. '{)rt1f?(1'rr~ ;']9.} . <s-- ~ ~1>' B\fl.:--..:~ ~ J-A . . . . . . ~/'( ~ ~1. 'U81IC. STi>.~ <) ~\~ I/IIIIU II i 1\\\\\\' e CONSENT AND JOINDER OF SUBLESSEE The undersigned Sublessee from, Sublessor Islander Village, LLC, the lessee under that certain Lease dated April 18, 2007, and recorded at Official Records Book 2301, Page 365, of Monroe County, Florida, hereby consent and joins in the foregoing Easement to BELLSOUTH TELECOMMUNICA nONS, INC. d/b/a AT&T FLORIDA WITNESS: SUBLESSEE: P nt ~ ERlCAN; IllIGflES.STERUNG 'I~ j (;~ Print ame: Diane t Castillo ~ . ~\~ t ~~ By: INDSA Y REGm SAYRE (Mailing Address) STATE OF t:t(jtt, DA COUNTY OF t.n0hr~ The foregoing instrument was acknowledged hefore me this)J-day of.1/ LA , 2008, by LINDSAY REGAN SAYRE. ~ Such person did/did not take an oath and: (notary must check applicable box) Personally Known OR Produced Identification Typy6f Identification Produced: ~ a current Florida Driver's License as identification, number Or produced {Notary Seal must be affixed} Z1u. as identification. j~ Notary . T CastiHO /!i;;:r.e'(f:: ~~:~SSi~n # OD~9~~~ -.. ~. ~ ." December "'. ~'" ~.;N ;: Xp\re.. , 800-:lll~.10\B ~... ..~.:' ~ Troy FtHft Inwraoc-e. ~n.. If,lt.fi' &onOod , " 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 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 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 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 11 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 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.