STORMWATER & DRAINAGE EASEMENT

Transcription

1 Prepared by and return to: Michael D. Chiumento III, Esq. Chiumento & Guntharp, P.A. 4 Old Kings Road North, Suite B Palm Coast, FL STORMWATER & DRAINAGE EASEMENT This Stormwater & Drainage Easement ( Easement ) is made effective this day of, 2009 by and between THE CITY OF PALM COAST, 160 Cypress Point Parkway, Suite B-106, Palm Coast, FL ( Grantor ) and CENTEX HOMES, a Nevada general partnership, whose address is 2301 Lucien Way, Suite 400, Maitland, Florida ( Grantee ). RECITALS A. Grantee is the owner of the real property located in Flagler County, Florida described on Exhibit A attached hereto (the Property ). B. Grantor desires to grant Grantee the right to relocate any and all Grantor stormwater utilities ( City Utilities ) currently located within the Property. C. Grantor is the owner of the real property located in Flagler County, Florida collectively described by Exhibit B and Exhibit C attached hereto (the Easement Parcels ) upon which is or will be located drainage improvements and a drainage pond (respectively the Drainage Improvements and Pond ). D. Grantor has agreed to grant an easement to Grantee over the Easement Parcels for drainage of the Property into the Drainage Improvements and the Pond in accordance with the terms and conditions set forth in the Ordinance , recorded at Official Records Book 1624, Page 260, of the Public Records of the Flagler County, Florida, (the PUD Agreement ) and the Declaration of Covenants, Conditions, Restrictions and Easements recorded at Official Records Book 1641, Page 895, of the Public Records of the Flagler County, Florida (the C&Rs ). D. Grantor shall have the right to relocate this easement and all improvements thereon at Grantor s sole expense. NOW, THEREFORE and in consideration of $10.00 and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Recitals. The recitals above are true and correct and by this reference are incorporated as material part of this Easement.

2 2. Drainage Easements. Grantor hereby grants to Grantee, its successors and assigns, for the benefit of the Property, a perpetual non-exclusive easement over, under, across and through the Easement Parcels for purposes of drainage of the Property. 3. Stormwater Improvements. Grantee shall be responsible for construction, at its expense, of all stormwater facilities and improvements necessary to connect the Property to the Easement Parcels which shall be designed to minimize impacts to specimen trees consistent with City Code. Further, Grantee shall be responsible for obtaining all permits necessary for such work and shall conduct such work in a good and workmanlike manner and in accordance with all applicable governmental laws, permits and regulations. Prior to conducting such work, Grantee shall provide Grantor copies of any plans, specifications, and permits for the work for Grantor s prior approval. 4. Relocation. A. Easement Relocation. Grantor, at Grantor s sole expense, shall have the right to relocate the Drainage Improvements and the Pond and the this Easement granted hereby provided that drainage of the Property into the Pond shall not be disrupted or diminished at any time. Upon the request of Grantor, upon any such relocation, Grantee agrees to execute and record an amendment to this Easement to relocate the Easement Parcels in the public records. B. City Stormwater Improvements Relocation. Grantee at Grantee s sole expense shall have the right to relocate the City Utilities on the Property so long as the Grantor s use of the City Utilities are not disrupted or diminished at any time. Grantor shall grant Grantee stormwater fee credit equal to the Grantee s actual and documented cost for the relocation of said City Utility. 5. Maintenance. The Grantor shall maintain the Pond and other stormwater facilities pursuant to the PUD Agreement and the C & R s. 6. Indemnification. Grantee agrees to indemnify and hold Grantor harmless from and against any and all damages, losses, or claims, including but not limited to, legal fees and expenses, arising out of use of the Easement Parcels herein by Grantee. 7. Default. A default by a party under this Easement shall entitle the party benefited by the applicable covenant(s) to all remedies available at law or in equity, which may include, but not be limited to, the right of damages, injunctive relief, and specific performance. 8. Enforcement of Agreement. In the event that any party seeks to enforce this agreement by court proceedings or otherwise, then the prevailing party shall be entitled to recover all fees and costs incurred, including reasonable attorneys fees and costs for trial, alternative dispute resolution, or appellate proceedings. 2

3 9. Third Parties. This Easement is solely for the benefit of the parties and the Property hereto, and no right or cause of action shall accrue upon or by reason, to or for the benefit of any third party not a formal party to this agreement. Nothing in this agreement expressed or implied is intended or shall be construed to confer upon any person or corporation other than the parties hereto any right, remedy, or claim under or by reason of this agreement or any of the provisions or conditions of this Easement. 10. Assignment. Grantee shall be permitted to assign this Easement to subsequent owners of the Property which shall be bound to the terms and conditions of this Easement, the PUD and the C&Rs 11. Controlling Law. This Easement shall be construed, interpreted, and controlled according to the laws of the State of Florida. 12. Severability. The invalidity or unenforceability of any one or more provisions of this Easement shall not affect the validity or enforceability of the remaining portions of this Easement, or any part of this Easement not held to be invalid or unenforceable. 13. Binding Effect. This Easement and all of the provisions, representations, covenants, and conditions contained herein shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns and shall be appurtenant to and binding upon and run with title to the parcels of land described herein. 14. Authorization. By execution below, the undersigned represent that they have been duly authorized by the appropriate body or official of their respective entity to execute this agreement, and that the respective parties have complied with all the requirements of law, and have full power and authority to comply with the terms and provisions of this agreement. 15. Amendments. Amendments to and waivers of the provisions contained in this agreement may be made only by an instrument in writing which is executed by Grantor and Grantee. 16. Entire Agreement. This instrument shall constitute the final and complete expression of the agreement between the parties relating to the subject matter of this agreement. 17. Grantor s Reserved Rights. Grantor reserves the right to use the Easement Parcels or grant other easements thereon for any purpose not inconsistent with the Grantee s use. [SIGNATURES OMITTED TO THE NEXT PAGE] 3

4 IN WITNESS WHEREOF, the parties have set their hands and seals the date and year first above written. Signed, sealed, and delivered in the presence of: WITNESSES: GRANTEE CENTEX HOMES, a Nevada general partnership, d/b/a Centex Destination Properties By: CENTEX REAL ESTATE CORPORATION, a Nevada corporation, its Managing General Partner Print Name: By: Lawfully Authorized Signatory (Print Name: ) STATE OF COUNTY OF The foregoing instrument was acknowledged before me this day of, 2009 by, as of CENTEX HOMES, who is personally known to me or produced his/her as identification, on behalf of Grantee. NOTARY PUBLIC My Commission Expires: 4

5 IN WITNESS WHEREOF, the parties have set their hands and seals the date and year first above written. ATTEST: GRANTOR CITY OF PALM COAST, FLORIDA A Municipal Corporation Clare Hoeni, City Clerk Date: By: Jon Netts, Mayor O:\Centex (0113)\Palm Harbor Golf (070291)\Drainage Easement doc 5

6 EXHIBIT A [the Property ] 6

7 EXHIBIT A-1

8 EXHIBIT B [Easement Parcel] ( Drainage Improvements ) 7

9 SKETCH OF DESCRIPTION POINT OF COMMENCEMENT POINT OF BEGINNING EXHIBIT B-1

10 SKETCH OF DESCRIPTION T OF MMENCEMENT POINT OF BEGINNING EXHIBIT B-2

11 SKETCH OF DESCRIPTION EXHIBIT B-3

12 DESCRIPTION: SURVEYOR'S NOTES: EXHIBIT B-4

13 EXHIBIT C [Easement Parcel] ( Pond ) 8

14 SKETCH OF DESCRIPTION POINT OF COMMENCEMENT EXHIBIT C-1

15 SKETCH OF DESCRIPTION POINT OF BEGINNING EXHIBIT C-2

16 DESCRIPTION: SURVEYOR'S NOTES: EXHIBIT C-3