Item Q13
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: Mav 16. 2007 - KL
Bulk Item: Yes XX No
Division:
County Attorney
Staff Contact Person: Susan M. Grimsley
AGENDA ITEM WORDING:
Approval and ratification of execution by the Mayor of a revised Grant of Easement to be attached to
and made a part of the Agreement for Sale and Purchase approved 4/18/07 adding language to ensure
restoration and repair of the Easement property due to repair or replacement of sewer and/or utility
lines.
ITEM BACKGROUND:
On 7/19/2006, the BOCC approved the purchase of property located on Stock Island (the old Islander
Drive-In property) contingent upon execution of a 99-year lease for construction and development of
an affordable housing project. The Board also approved reservation of (89) affordable dwelling unit
allocations for the project. The actual owner of the property is Drive-In, Ltd. As development plans
progressed, it was discovered an access easement was required for the market rate housing over the
County owned property where the affordable housing units are located. Subsequent to approval of the
Grant of Easement, it was determined language should be included to ensure restoration and repair of
the Easement property due to repair or replacement of sewer and/or utility lines.
PREVIOUS RELEVANT BOCC ACTION:
3/15/2006 BOCC approved Ordinance No. 005-2006 Establishing Purchase/Development or
Redevelopment of Affordable/Employee Housing Program
7/1912006 BOCC approved Agreement for Sale and Purchase (with attached Addendum) with Islander
Village, LLC
7/1912006 BOCC approved Lease
7/1912006 BOCC approved Resolution No. 273-2006 reservation of(89) affordable dwelling unit
allocations for the Islander Village, LLC Project (along with 4 other affordable housing projects)
4/18/2006 BOCC rescinded Agreement for Sale and Purchase and Lease approved 7/19/06; approved
corrected Agreement for Sale and Purchase effective 7/19/06 and corrected Lease effective 4/18/07;
approved Grant of Easement made a part of corrected Agreement for Sale and Purchase
CONTRACT/AGREEMENT CHANGES:
Adds language in Sections 7 and 8 of the Grant of Easement to ensure restoration and repair of
Easement property due to repair or replacement of sewer and/or utility lines.
STAFF RECOMMENDATIONS:
Approval.
TOTAL COST: N/A
BUDGETED: Yes
No
COST TO COUNTY: N/A
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes
No xx
AMOUNT PER MONTH_ Year
APPROVED BY: County Atty -X- OMB/Purchasing _ Risk Management _
DOCUMENT ATION:
Included X
Not Required_
DISPOSITION:
Revised 2/05
AGENDA ITEM #
Prepared by and Return to:
Spottswood, Spottswood & Spottswood
500 Fleming Street
Key West, Florida 33040
GRANT OF EASEMENT
TIDS GRANT OF EASEMENT is entered into this day of
, 2007 (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 , Key West, Florida 33040 (herein "Islander
Village"), Monroe County and Islander Village shall be collectively referred to herein as
"Grantor", and DRIVE-IN, LTD., a Florida limited partnership, its successors and assigns,
whose address is 201 Front Street, Suite . Key West, Florida 33040 (herein "Drive-In" or
"Grantee").
RECITALS
WHEREAS Monroe County, simultaneously with the execution of this Agreement, has
purchased property from Drive-In and is now the owner of said real property located in Monroe
County, Florida, which property is described on Exhibit "An attached hereto and made a part
hereof (herein "Affordable Property"); and
WHEREAS Drive-In remains the owner of certain real property located in Monroe County,
Florida, which property is described on Exhibit "B" attached hereto and made a part hereof
(herein "Market Rate Property"), which will be developed into twenty-two (22) market rates
units and subsequently sold to individual unit owners; and
WHEREAS, simultaneously with the execution of this Agreement, Islander Village and Monroe
County entered into a ninety-nine (99) year ground lease (hereinafter "Lease") 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; and,
WHEREAS, the parties are desirous of entering into this Agreement to provide Drive-In with a
non-exclusive perpetual easement over a portion of the Affordable Property for among other
things, the construction and maintenance of a roadway, over and across the property more
particularly described in the attached Exhibit "c" (hereinafter "Easement Property"), together
with a perpetual easement for ingress, egress and passage (both pedestrian and vehicular) over
said Easement Property and the roadway constructed thereon in order to facilitate access to the
Market Rate Property; and,
WHEREAS the parties are also desirous of entering into this Agreement to provide Drive-In
with a perpetual non-exclusive easement for access to and use of the sewer lift station located
within the Easement Property; and,
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WHEREAS, the parties are also desirous of entering into this Agreement to provide Drive-In
with a perpetual non-exclusive easement in, over, across and under the Easement Property for the
installation, repair, maintenance and use of underground utilities~ and,
WHEREAS, the parties have agreed, under the terms and conditions set forth herein, to grant to
Drive-In the right to use the Easement 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. Grantor hereby grants, conveys, declares and creates for the benefit of Drive-In, its
successors and assigns, a perpetual, non-exclusive easement, in, upon, over and across the
Easement Property, more particularly shown on the attached Exhibit "e" in order to facilitate
access (both vehicular and pedestrian) to and from the Market Rate Property (including access to
construct the twenty-two (22) market rate units). All persons having the right to enter upon the
Market Rate Property shall have the right to utilize the Easement Property for ingress and egress
purposes (both vehicular and pedestrian), including but not limited to Drive-In's guests,
contractors, agents and invitees and the guests, contractors, agents and invitees of the Drive-In's
successors and assigns (the individual unit owners of the units located on the Market Rate
Property).
4. Drive-In, at Drive-In's sole cost and expense, shall be responsible for the repair and
maintenance of the roadway and landscaping within the Easement Property~ provided, however,
that the access to and from the Affordable Property shall not be unreasonably impaired or
otherwise impeded in any manner. Drive-In agrees to provide Islander Village with reasonable
notice prior to commencing any repair or maintenance that may interfere or impair the access to
the Affordable Property.
5. Grantor and Grantee shall not construct or place any structures on or make changes,
alterations or improvements to the Easement Property or do anything inconsistent with the use of
the Easement Property by the parties hereto without the prior written consent of the other parties.
6. Grantee agrees to secure and pay the premium for liability insurance with respect to the
maintenance, repair and use of the Easement Property in an amount of not less than
$1,000,000.00 from an insurer of recognized financial responsibility qualified to do business in
Florida which is reasonably acceptable to Grantor. Grantor shall be named as an additional
insured. The foregoing amount of insurance must be increased by Grantee as may from time to
time be reasonably required by the Grantor. In the event Grantee believes the Grantor's
requirement for such additional insurance is unreasonable, the reasonableness of Grantor's
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demand for an increase in the amount of insurance hereunder shall be detennined in accordance
with the rules of the American Arbitration Association. Such detennination made in arbitration
shall be binding on the parties and such insurance shall be carried with the limits as thus
detennined until such limits shall again be changed pursuant to the provisions of this Paragraph.
7. Grantor hereby grants, conveys, declares and creates for the benefit of Drive-In, its
successors and assigns, a perpetual, non-exclusive easement, in, upon, over, under and across the
Easement Property, more particularly shown on the attached Exhibit "C" in order to allow Drive-
In, and its successors and assigns, access to and use of the sewage lift station located within the
Easement Property. Drive-In shall be responsible for sixty-seven percent (67%) and Islander
Village shall be responsible for thirty-three (33%) of the repair, maintenance and replacement (if
necessary) of the sewer lift station located within the Easement Property. Drive-In, at Drive-
In's sole cost and expense, shall maintain their sewer pipes which benefit the Market Rate
Property in good repair and shall have the right of ingress and egress to install, maintain, repair
and, if necessary, replace, their sewer lines which are located within the Easement Property. The
foregoing right shall include the right to dig up those portions of the Easement Property as
necessary to repair or replace Drive-In's sewer lines; and, in such an event, Drive-In shall
provide Islander Village with reasonable notice. Further. following the ~air or replacement.
Drive-In expressly 8&O'CS herein to restore the Easement Property to its original condition.
Islander Village shall in no way interfere with Drive-In's use of said sewer lines. Drive-In and
Islander Village hereby agree that the decisions related to the repair and maintenance of sewage
lift station shall be governed by a Master Association, to be fonned to govern the Affordable
Property and the Market Rate Property.
8. Grantor hereby grants, conveys, declares and creates for the benefit of Drive-In, its
successors and assigns, a perpetual, non-exclusive easement, in, upon, under and across the
Easement Property for installation, maintenance and repair of underground utilities to service
and benefit the Market Rate Property, including but not limited to water and underground
electric lines. Drive-In, at Drive-In's sole cost and expense, shall maintain the utilities which
benefit the Market Rate Property and are located within the Easement Property in good repair
and shall have the right of ingress and egress to maintain, repair and, if necessary, replace, said
utility lines. The foregoing right shall include the right to dig up those portions of the Easement
Property as necessary to repair or replace Drive-In's utility lines; and, in such an event, Drive-In
shall provide Islander Village with reasonable notice. Further. following the re.pair or
re.placement. Drive-In e~ressly asrees herein to restore the Easement Property to its original
condition. Islander Village shall in no way interfere with Drive-In's use of said utility lines.
9. Drive-In shall indemnify, protect, defend and hold Monroe County and Islander Village
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) which Monroe
County or Islander Village should incur as a result of or in connection with Drive-In, or Drive-
In's agents', contractors', successors' and assigns', use, repair and maintenance of the Easement
Property.
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10. Islander Village shall indemnify, protect, defend and hold Monroe County and Drive-In
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) which Monroe
County or Drive-In should incur as a result of or in connection with Islander Village's, or
Islander Village's agents', contractors', successors' and assigns', use of the Easement Property,
unless caused by Drive-In's failure to maintain or repair the roadway located within the
Easement Property.
11. Drive-In hereby acknowledges that Islander Village, its successors, assigns, invitees, and
contractors retain the right to use the Easement Property for access to the Affordable Property.
Additionally, Islander Village, its successors and assigns retain the right to use the sewage lift
station, as well as sewer lines servicing the Affordable Property. Notwithstanding anything
contained herein to the contrary, Islander Village's rights to use the Easement Property are
subject to the terms and conditions set forth in the Lease. Monroe County hereby acknowledges
that the grant of the easements set forth herein for the benefit of Drive-In shall survive
termination of the Lease with Islander Village. Therefore, the terms of this Agreement shall run
with and be appurtenant to the Market Rate Property. Therefore, this easement shall run with
the land 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 Market Rate
Property and Affordable Property.
12. When a transfer of the entire ownership interest in the Affordable Property and Market
Rate Property takes place, the transferor shall be released from any and all further liability
arising hereunder after such transfer occurs; therefore, the liability under this Agreement arising
after said transfer shall automatically terminate as to the transferor and shall be automatically
assumed by and become the obligation of the transferee.
13 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.
14. 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.
15. Nothing contained in this Access 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.
16. 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.
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17. 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.
18. 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.
19. 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.
20. For the purposes of interpreting any ambiguity arising under this Agreement, no party
shall be considered the "drafter" of same.
21. 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 ajury.
22. 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 on behalf of
Drive-In, Ltd., Islander Village, LLC and Monroe County.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
(SIGNATURE PAGES TO FOLLOW)
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SIGNATURE PAGE 1 OF 2
IN WITNESS WHEREOF, the parties have executed this Agreement this _ day of
,2007.
DRIVE-IN, LTD., a Florida limited partnership
Witnesses:
By:
Printed Name:
ITS:
Print Name:
Print Name:
STATE OF FLORIDA
COUNTY OF MONROE
On this _ day of , 2007 before me personally appeared
, as of Drive-In, Ltd. who is personally
known to me, and who acknowledged execution of the foregoing instrument.
My Commission Expires: (Seal)
Notary Public
Print Name:
Witnesses:
ISLANDER VILLAGE, LLC
By::
Printed Name:
ITS:
Print Name:
Print Name:
STATE OF FLORIDA
COUNTY OF MONROE
On this _ day of , 2007 before me personally appeared
, as of Islander Village, LLC, who is
personally known to me, and who acknowledged execution of the foregoing instrument.
My Commission Expires: (Seal)
Notary Public
Print Name:
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(Seal)
SIGNA TURE PAGE 2 OF 2
ATTEST: DANNY L, KOLHAGE, Clerk
By:
Deputy Clerk
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By:
Mayor Mario DiGennaro
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