Item M09
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: August 20, 2008
Division: Growth Management
Bulk Item: Yes ~ No
Department:
Staff Contact: Andrew O. Trivette
AGENDA ITEM WORDING:
Approval of Grant of Easement and Right of Use Agreement by and between Sea Grape Apartments,
Ltd. and Sea Grape II, Ltd.
ITEM BACKGROUND:
As the underlying long term lessor, Monroe County must consent to the easement from the Sea Grape II,
Ltd (Phase II) which borders, US 1, to Sea Grape Apartments, Ltd (Phase I) which lies south of the Sea
Grape II property.
PREVIOUS RELEVANT BOCC ACTION:
September 28, 2007 - Approval of the long term lease from Monroe County to Sea Grape Apartment,
Ltd. It is expected that a similar long term lease will be entered into at the August 20, 2008 meeting for
Phase II. If that occurs, Phase I will need access across Phase II.
CONTRACT/AGREEMENT CHANGES: N/A
ST AFF RECOMMENDATIONS: Approval
TOTAL COST:
BUDGETED: Yes
No
COST TO COUNTY:
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes
No
AMOUNTPERMONTH_ Year
APPROVED BY: County Arty _ OMB/Purchasing _ Risk Management_
DOCUMENTATION:
Included
Not Required_
DISPOSITION:
AGENDA ITEM #
Revised Il/06
This Instrument Was Prepared By:
Patricia K. Green. Esq.
Stearns Weaver Miller Weissler
Alhadeff & Sitlerson, P.A.
150 West Flagler St.. Suite 2200
Miami. Florida 33130
Record and Return To:
Patricia K. Green, Esq.
Stearns Weaver Miller Weissler
Alhadeff & Sitlerson, P.A.
150 West Flagler St., Suite 2200
Miami, Florida 33130
GRANT OF EASEMENT AND RIGHT OF USE AGREEMENT
(Access Easement)
This Grant of Easement and Right of Use Agreement (the "Agreement") is made and entered
into as of the day of , 2008, by and between Sea Grape Apartments,
Ltd. ("SGA"), having an address at 2950 S. W. 27TH Avenue, Suite 200, Miami, Florida 33133, and
Sea Grape II, Ltd., a Florida limited partnership ("SG II"), having an address at 2950 S. W. 27 TH
A venue, Suite 200, Miami, Florida 33133.
RECITALS
A. SGA is the owner of a long term leasehold interest in the property legally described
on Exhibit "Au attached hereto and made a part hereof (the "Easement Area").
B. SG 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, SGA has agreed to grant to SG 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.
AGREEMENT
NOW, THEREFORE, in consideration of the sum ofTen Dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
I. Recitals. The above recitals are true and correct and by this reference are incorporated as if
fully set forth herein.
2. Easement. SGA hereby grants to SG II, for the use and benefit of SG II, its successors and
assigns who acquire an interest in the Apartment Site (whether fee or leasehold), and its lenants,
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 SG II's development of
the Apartment Site. Nothing herein shall prohibit SGA'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 SG II.
3. Appurtenant 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 SGA and SG II as
a common driveway serving their respective properties. SGA 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 build. Should
it elect to construct such roadway, SGA 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 SG II. Thereafter, SGA shall be
responsible for two-thirds (2/3) of the expenses of ordinary maintenance and repair of the Easement
Area, and SG 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. SGA 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. SGA 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 SONs bookkeeping procedures provided the billing period shall be no more often
than monthly.
5. Indemnity. Each ofthe parties hereto agrees to indemnifY the other and hold it harmless from
and against any and all loss, 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
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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.
I 1. No Partnership. 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. Counterparts. This Agreement may be executed in any munber of counterparts, each of
which shall be deemed an original and all of which, taken together, shall constitute a single
doclUllent.
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 Agreement. 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
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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
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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
Print Name:
Print Name:
By:
Lloyd J. Boggio, President
I
r
STATE OF FLORIDA )
) SS:
COUNTY OF :MIAMI-DADE )
The foregoing instrument was acknowledged before me this _ day of ,2008 by
Lloyd J. Boggio as President of TCG Sea Grape, LLC, the general partner of Sea Grape Apartments,
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 identification.
Print or Stamp Name:
Notary Public, State of Florida at Large
Commission No.:
My Commission Expires:
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SEA GRAPE II, LTD., a Florida limited
partnership
By: CDG Sea Grape II, LLC, a Florida
limited liability company, its general
partner
Print Name:
By:
Lloyd 1. Boggio, President
Print Name:
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this _ day of ,2008 by
Lloyd Boggio, as President of CDG Sea Grape II, LLC, the general partner of Sea Grape II, 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 identification.
Print or Stamp Name:
Notary Public, State of Florida at Large
Commission No.:
My Commission Expires:
G:\W-RED\34756 - Carlisle\089" Sea Gr<lpe\l-Sea Grape ll\Easement-acces, SGA to SGIIV2.wpd
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JOINDER OF FEE O\VNER
(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 WITNESS WHEREOF, these presents have been executed this _ day of
,2008.
WIlNESSES:
MONROE COUNTY
By:
Print Name:
Name:
Title:
Print Name:
ATTEST: DANNY L. KOLHAGE, CLERK
Deputy Clerk
STATE OF
)
COUNTY OF
) ss
BEFORE ME, the undersigned authority, this day appeared
known by me to be the of Monroe County,
a political subdivision ofthe state of Florida, and shelhe acknowledged to and before me that shelhe
executed the said instrument, 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 purposes therein mentioned, and after being duly
authorized and directed. Shelhe is: [ ] personally known to me, or [ ] produced
as identification.
WIlNESS my hand and official Seal in the County and State aforesaid, on this, the _ day
of , 2008.
Notary Public State of
My Commission Expires:
I
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MONROE COUNTY ATTORNEY
APPROVED AS :JJ:,ORM'
.vL.AA~ ~.-<1JLl
SUSAN M, G SLEY
ASSI2Y;NTJOUNTY ATIft~EY Y'
Date D L{ /} >J- "r}(J
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JOINDER OF MORTGAGEE
(Easement Area First Lender)
The Wldersigned, 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 COWlty,
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 Wldersigned and its successors in title.
IN WITNESS WHEREOF, these presents have been executed this _ day of
,2008.
WITNESSES:
W ACHOVIA BANK, National Association
By:
Print Name:
Name:
Title:
Print Name:
STATE OF
)
COUNTY OF
) ss
BEFORE ME, the undersigned authority, this day appeared
known by me to be the ofWachovia Bank,
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 , 2008.
Notary Public State of
My Commission Expires:
G:\W-RED\34756 - Carlisle\089 - Sea Gmpell-Sea Grape II\Easement.acces. SGA to SGUV2.wpd
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EXHIBIT "B"
APARTMENT SITE
A parcel ofland in Section II, 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 11 and the Southeasterly right of
way line of U.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 11 for 70.23
feet; thence West for 231.55 feet; thence North for 94.84 feet; thence East for 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.
I'
SGA to SGn Access Easement
H:IW-RED\34756 - Carlislel089 - Sea Grapell-Sea Grape II\Easement- access sa II, parcel II IegaLdoc