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Item I5 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: November 19, 2008 Division: Growth Management Bulk Item: Yes X No - Department: Staff Contact: Susan Grimsley/ Mark Rosch AGENDA ITEM WORDING: Approval of Grant of Easement and Right of Use between Sea Grape Apartments Ltd. and Sea Grape II, Ltd. as underlying fee owner. ITEM BACKGROUND: The Sea Grape Apartments development in Marathon is an 84-unit affordable housing development being built in two phases by The Carlisle Group. The proposed agreement will allow for the shared use of the roads, sidewalks, and amenities between Phase I and Phase II of the development. The agreement also addresses maintenance and cost allocation between the two phases. Sea Grape Apartments Ltd and Sea Grape II Ltd are the two developer corporations created by the principals of The Carlisle Group for this project. Monroe County owns the land upon which the housing is being built and has granted 99-year leases to each of the developer corporations. As the underlying fee owner, Monroe County is being asked to execute a joinder to this agreement (as are all the project lenders). PREVIOUS RELEVANT BOCC ACTION: CONTRACT/AGREEMENT CHANGES: n/a ST AFF RECOMMENDATIONS: Approval TOTAL COST: N/A BUDGETED: Yes -L No - COST TO COUNTY: N/A SOURCE OF FUNDS: REVENUE PRODUCING: Yes - No - AMOUNT PER MONTH Year - APPROVED BY: County Atty ~ OMB/Purchasing _ Risk Management ~ DOCUMENT A TION: Included X Not Required_ DISPOSITION: AGENDA ITEM # Revised J J 106 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 Record and Return To: Patricia K. Green, Esq. Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. 150 West Flagler St., Suite 2200 Miami, Florida 33130 GRANT OF EASEMENT AND RIGHT OF USE AGREEMENT (Reciprocal Access and Recreational 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., a Florida limited partnership ("SG One"), having an address at 2950 S.W. 27TH Avenue, Suite 200, Miami, Florida 33133, and Sea Grape II, Ltd., a Florida limited partnership ("SO Two"), having an address at 2950 S.W. 27TH Avenue, Suite 200, Miami, Florida 33133. RECITALS A. SO One is the ground lessee of the property legally described on Exhibit "A" attached hereto and made a part hereof (the "Phase I Property"). B. SG Two is the ground lessee of the property legally described on Exhibit "B" attached hereto and made a part hereof (the "Phase II Property"). C. For good and valuable consideration, SG One and SG Two have each agreed to grant to the other, as an appurtenance to their respective properties, perpetual, non-exclusive easements for vehicular and pedestrian ingress and egress over, across and through the roads and sidewalks constructed from time to time within their respective properties (the "Roads"), and for the use and enjoyment by each of the parties hereto, their tenants, employees, agents, customers, invitees, successors and assigns, of the recreational amenities constructed on either property now or in the future, including but not limited to swimming pool, clubhouse, car care areas, laundry facilities, playgrounds, volleyball courts, and similar amenities located on the respective properties from time to time (collectively, the "Recreational Facilities"). AGREEMENT 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. SG Two Road and Amenities Easement. SG One hereby grants to SG Two, for the use and benefit of SG Two, its successors and assigns who acquire an interest in the Phase II Property, 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 Roads within the Phase I Property, (ii) the use and enjoyment of the Recreational Facilities within the Phase I Property, and (iii) parking in unreserved spaces proximate to the Recreational Facilities ("Parking Spaces") within the Phase I Property, in connection with and during the use of the Recreational Facilities within the Phase I Property, but, as to parking rights, at no other time. 3. SG One Road and Amenities Easement. SG Two hereby grants to SG One, for the use and benefit of SG One, its successors and assigns who acquire an interest in the Phase I Property, 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 Roads within the Phase II Property, (ii) the use and enjoyment of the Recreational Facilities within the Phase II Property, and (iii) parking in Parking Spaces within the Phase II Property, in connection with and during the use of the Recreational Facilities within the Phase II Property, but, as to parking rights, at no other time. 4. Appurtenant Easement. The easements herein granted shall be appurtenant to the lands benefitted thereby. 5. Use of Roads. Parking Spaces and Recreational Facilities. The use of the Roads, Parking Spaces and Recreational Facilities by the parties hereto, their tenants, agents, employees, invitees, successors and assigns shall be in compliance with all reasonable rules and regulations promulgated by SG One and SG Two, as to their respective properties, from time to time, and in accordance with all applicable laws, codes and ordinances. 6. Maintenance Covenants. a. As to Phase I Property: SG One agrees to maintain the Roads, Parking Spaces and Recreational Facilities within the Phase I Property for the joint use thereof by the parties hereto, in working condition and free of material defects, subject to occasional interruption of service due to (i) ordinary wear and tear and use thereof, (ii) routine or extraordinary maintenance or (iii) events beyond SG One's reasonable control. SG One shall have the right to perform all such maintenance and repairs itself through its management company, or to select the contractor(s) of its choice in connection with all aspects of maintenance, repair and operation of its Roads, Parking Spaces and Recreational Facilities. b. As to Phase II Property: SG Two agrees to maintain the Roads, Parking Spaces and Recreational Facilities within the Phase II Property for the joint use thereof by the parties hereto, in working condition and free of material defects, subject to occasional interruption of service due to (i) ordinary wear and tear and use thereof, (ii) routine or extraordinary -2- maintenance or (iii) events beyond SG Two's reasonable control. SG Two shall have the right to perform all such maintenance and repairs itself through its management company, or to select the contractor(s) of its choice in connection with all aspects of maintenance, repair and operation of its Roads, Parking Spaces and Recreational Facilities. 7. Costs. Each party shall be responsible for the maintenance and repair of its respective Roads, Parking Spaces and Recreational Facilities; provided, however, that expenses associated with any negligent, willful or reckless act or use of the Roads, Parking Spaces and Recreational Facilities shall be the responsibility of the party committing such act. 8. Phase II Contribution to Certain Costs. SG Two shall pay to SG One a sum equal to 37% of the costs of maintenance, utilities, taxes, insurance and all other costs and expenses ("Amenity Operating Expenses") involved in the operation and use of the entrance gate, community center, outdoor recreation area, and library located on the Phase I Property and used by SG Two, for which there is no offsetting or equal amenity within the Phase II Property, such amount to be paid on the 15th day of each month. Said amolUlt represents SG Two's pro rata share of the Amenity Operating Expenses, based on the following formula: Total Amenity Operating Expenses times a fraction, the numerator of which is 66 (the number of bedrooms in the Phase II Property) multiplied by 1.5 (which represents the average number of occupants of a bedroom), and the denominator of which is 178 (the total number of bedrooms in both Phases, collectively), multiplied by 1.5. The resulting fraction is 99/267, or 37%. SG One shall provide a copy of its annual operating budget as to the Amenity Operating Expenses, to SG Two for informational purposes, but the budget shall not be a limitation on the amount that SG Two is obligated to pay as Amenity Operating Expenses, it being intended that 37% of actual costs will be passed through to SG Two. SG One shall invoice SG Two for the Amenity Operating Expenses and payment shall be made to SG One within ten (10) days following the date of any invoice for Amenity Operating Expenses. Invoices shall include copies of all bills and statements for the billing period in question. SG One shall use reasonable efforts to tender invoices on a monthly basis but the right is reserved to alter the billing period in any manner consistent with its bookkeeping procedures. The sale or transfer of the Phase II Property pursuant to judicial sale or foreclosure, or deed in lieu of foreclosure, shall not subject the acquirer of title pursuant to such sale or transfer to liability for payment of the Amenity Operating Expenses attributable to period of time prior to such sale or transfer; however, such acquirer of title shall be liable for all Amenity Operating Expenses accruing thereafter. 9. Termination. This Easement shall automatically terminate: a. As to the easement benefitting the Phase II Property, if, without the consent of the owner of the Phase I Property and the consent of the holders of all mortgages thereon, (i) the Phase II Property is increased in density beyond 28 residential units or (ii) the Phase II Property ceases to be used for multifamily residential apartment purposes; or -3- b. As to the easement benefitting the Phase I Property, if, without the consent of the owner of the Phase II Property and the consent of the holders of all mortgages thereon, (i) the Phase IProperty is increased in density beyond 56 residential units or (ii) the Phase I Property ceases to be used for multifamily residential apartment purposes. 10. Indemnity. Each of the 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. 11. Successors and Assigns. This Agreement shall bind, and the benefit thereof shall inure to, the respective successors and assigns of the parties hereto. 12. 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 public or for the benefit of the general public whatsoever, it being the intention ofthe 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. 13. 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. 14. 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. 15. Amendment. The parties hereto agree that this Agreement may not be amended, released or terminated except as provided in Section 9 hereof, without the prior written consent of the holder of any mortgage encumbering the property to be affected by such amendment. 16. Operation of Phase I Property and Phase II Property. The parties hereto agree that the Phase I Property and the Phase II Property shall each be operated as separate projects and no preference shall be given in leasing or any other matter to one phase over the other; provided, that nothing' contained herein shall be deemed to contravene the provisions ofthe separate Land Use Restriction Agreements or other loan documents entered into with respect to the Phase I Property or the Phase II Property. 17. Third Party Beneficiary. So long as any mortgage loan remains outstanding with respect to the Phase I Property or the Phase II Property, or any amounts are owed to the holder(s) of such -4- mortgages, such holder(s) shall be deemed an intended third.party beneficiary hereof and entitled to enforce the provisions hereof. 18. 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. 19. 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. 20. Counterparts. 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. 21. 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. 22. 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 agreements herein contained cannot be altered, changed or supplemented except in writing and signed by the parties hereto. 23. 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. 24. 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 -5- 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 Print Name: By: TCa Sea Grape, LLC, a Florida limited liability company, its general partner Print Name: By: Lloyd Boggio, Manager SEA GRAPE ll, LTD., a Florida limited partnership By: CDG Sea Grape II, LLC, a Florida limited liability company, its general partner Print Name: By: Matthew Greer, Manager Print Name: -6- STATE OF FLO,RIDA ) ) SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this day of - ,2008 by Lloyd Boggio as Manager ofTCG 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: STATE OF FLOlUDA ) ) SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this _ day of , 2008 by Matthew Greer, as Manager 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 .PKGIJ4 756\200lshared-use4. wpd -7- JOINDER OF MORTGAGEE (Phase I First and Third Lender) The undersigned, Neighborhood Lending Partners of South Florida, Inc., a Florida not-for-profit corporation, as Mortgagee (the "Mortgagee") under (i) that certain Multifamily Mortgage, Assignment of Rents and Security Agreement by Sea Grape Apartments, Ltd., a Florida limited partnership, in favor of Mortgagee, dated October --' 2008 and recorded in Official Records Book at Page of the Public Records of Monroe County, Florida, and (ii) that certain Delivery Assurance Fee Multifamily Mortgage by Sea Gra.pe Apartments, Ltd., a Florida limited partnership, in favor of Mortgagee, dated October --' 2008 and recorded in Official Records Book at Page of the Public Records of Monroe County, Florida, covering alUor 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. IN WITNESS WHEREOF, these presents have been executed this _ day of ,2008. WITNESSES: Neighborhood Lending Partners of South Florida, Inc., a Florida not-for-profit corporation By: Print Name: Name: Title: Print Name: STATE OF FLORIDA ) ) COUNTY OF HlLLSBOROUGH) BEFORE ME, the undersigned authority, this day appeared known by me to be the of Neighborhood Lending Partners of South Florida, Inc., a Florida not-for-profit corporation, and she/he acknowledged to and before me that she!he executed the said instrument, acting in her!his said official capacity, for and as to the act and deed of said corporation 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 Florida My Commission Expires: -8- JOINDER OF MORTGAGEE (Easement Area Second Lender) The undersigned, The Carlisle Group, Inc., a Florida corporation, as Mortgagee (the "Mortgagee") under that certain Mortgage Deed by Sea Grape Apartments, Ltd., a Florida limited partnership, in favor of Mortgagee, dated October _, 2008 and recorded in Official Records Book _ at Page _ ofthe 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. IN WITNESS WHEREOF" these presents have been executed this _ day of ,2008. WITNESSES: The Carlisle Group, Inc., a Florida corporation Print Name: By: Lloyd Boggio, President Print Name: STATE OF FLORIDA ) ) COUNTY OF MIAMI-DADE) BEFORE ME, the undersigned authority, this day appeared known by me to be the of The Carlisle Group, Inc., a Florida corporation, and he acknowledged to and before me that he executed the said instrument, acting in herlhis said official capacity, for and as to the act and deed of said corporation and in its name, for the uses and purposes therein mentioned, and after being duly authorized and directed. He 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: -9- JOINDER OF MORTGAGEE (Phase II 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 II, Ltd., a limited partnership, in favor of Mortgagee, dated , 2008 and recorded in Official Records Book at Page of the Public Records of Monroe County, Florida, covering all/or a portion of the property 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. WITNESSES: Wachovia Bank, National Association, a national banking association Print Name: By: Name: Title: Print Name: STATE OF ) COUNTY OF ) BEFORE ME, the undersigned authority, this day appeared known by me to be the of Wachovia Bank, National Association, a national banking association, 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 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 Florida Print Name My Commission Expires: -10- JOINDER OF FEE OWNER (Phase I Property and Phase II Property) The undersigned, Monroe County, a political subdivision of the State of Florida, as the Fee Simple Owner of the Phase I Property and Phase II Property 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. WITNESSES: MONROE COUNTY By: Print Name: Name: Title: Print Name: ATTEST: DANNY 1. 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 of the state of Florida, 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 County and in its name, for the uses and purposes therein mentioned, and after being duly authorized and directed. She/he 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: -11- Exhibit "A" Legal Description Phase I Property A Parcel of land 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 11 and the Southeasterly right-of-way line of U.S. Highway 1; thence South along said East line of Section 11 for 285.00 feet to the Point of Beginning; thence continue South for 574.00 feet; thence West for 91.55 feet; thence North for 24.61 feet; thence West for 140.00 feet; thence North for 549.39 feet; thence East for 231.55 feet to the Point of Beginning. -12- Exhibit "8" Legal Description Phase II Property . PARCEL 1-LEASEHOLD PARCEL: A parcel of/and In Section 11{ Township 66 South{ Range 32 East{ Key Vaca, Monroe County{ Florida{ more particularly described as follows: Begin at the Intersection of the East line of said Section 11 and the Southeasterly Right-Of- Way line of U.S. Highway No.1; thence South along the said East line of Section 11 for 285.00 feet; thence West for 231.55 feet; thence North 190.74 feet to the Southeasterly Right-Of-Way line of U.S. Highway No.1; thence North 67051' 00" East{ along the said Southeasterly Right of way line of U.S. Highway No.1 for 250.00 feet back to the Point of Beginning. AND A strip of land In Section 11{ Township 66 South{ Range 32 East, Key Vaca, Monroe County, Florida{ more particularly described as follows: Commencing at the intersection of the East line of said Section 11 and the Southeasterly Right-Of-Way line of U.S. Highway No.1; thence South 670 51' 00" West, along the Southeasterly Right-Of-Way line, for 250.00 feet to the Point of Beginning; thence South, parallel to said East line of Section 11 for 344.62 feet; thence West for 20.00 feet; thence North 336.48 feet to said Southeasterly Right-Of-Way line; thence North 670 51' 00" East, along said Southeasterly Right-Of-Way line for 21.59 feet to the Point of Beginning. PARCEL 2: A parcel of land 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 11 and the Southeasterly Right-Of-Way line of U.S. Highway No.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. -13.