Agenda Item 8BAGENDA ITEM / 83
OCTOBER 14, 2013
MASTER AGREEMENT BETWEEN THE CITY OF ATLANTIC BEACH, FLORIDA,
THE ATLANTIC BEACH COUNTRY CLUB, INC. AND ATLANTIC BEACH
PARTNERS, LLC
THIS MASTER AGREEMENT (the "Agreement "), dated as of the day of
2013, is entered into by and between;
The City of Atlantic Beach, a municipal corporation located in Duval County, Florida, whose
address is 800 Seminole Road, Atlantic Beach, Florida 32233;
Atlantic Beach Country Club, Inc., a Florida Corporation, whose address is
;1600 Selva Marina Drive. Atlantic Beach, Florida 32233• and
Atlantic Beach Partners, LLC, a Florida Limited Liability Company, whose address is 414 Old
Hard Road #502, Fleming Island, Florida 32003.
RECITALS
WHEREAS, Selva Marina Country Club, Inc. ( "Selva Marina ") is the owner of property
located in the City of Jacksonville and the City of Atlantic Beach (hereinafter "COAB ") which is
currently used for the Selva Marina Country Club as more particularly described in Exhibit "A"
attached hereto and incorporated herein (the "Property"); and
WHEREAS, Selva Marina intends to sell the Property, including the present golf course,
to a developer for residential development and to rebuild the golf course, the clubhouse and the
related recreational amenities; and
WHEREAS, Atlantic Beach Partners, LLC ( "ABP ") is the contract purchaser and
proposed developer of the Property; and
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AGENDA ITEM 4 81
OCTOBER 14, 2013
WHEREAS, ABP propose to redevelop the Property as a single family residential
development of up to 200 residential lots, a golf course, and a clubhouse and related recreational
amenities; and
WHEREAS, upon completion of the golf course, clubhouse and related recreational
amenities, ownership of the golf course property will be transferred to the Atlantic Beach
Country Club, Inc. (the "Country Club "); and
WHEREAS, the Country Club, or its successor, assign or transferee, intends to continue
to operate and maintain a private golf and country club on a portion of the Property; and
WHEREAS, upon completion of the horizontal development of the residential property
ABP will transfer ownership of all or a portion of the residential property to one or more entities
which may include a successor in interest, a homeowners' association, and/or individual lot
owners; and
WHEREAS, COAB, ABP and the Country Club agree that it is in the best interest of all
parties to preserve as much greenspace as possible on the Property, in the form of the golf course
and related amenities, or other similar uses, including but not limited to parks, playgrounds, open
space, trails, and gardens, in order to enhance the environment, maintain property values, and
minimize traffic congestion; and
WHEREAS, the golf course has suffered from diminished quality of its grass and a
negative impact on the overall appearance of the golf course; and
WHEREAS, due to the poor quality of the irrigation water coming from the Selva
Marina lagoon, it will benefit the Country Club to find a new source of adequate irrigation water
to successfully continue operating the golf course; and
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AGENDA ITEM 1 813
OCTOBER 14, 2013
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WHEREAS, COAB intends on constructing, owning. maintaining and operating a water
reclamation facility which will produce reclaimed water which may be used for irrigation
purposes; and
WHEREAS, the Country Club and ABP desire to irrigate the grass and landscaped areas
of the golf course and the residential development on the Property, as appropriate and where
feasible, with reclaimed water from the new COAB water reclamation facility; and
WHEREAS, COAB is willing to deliver reclaimed water to the Property for irrigation
use and ABP and/or the Country Club are willing to perpetually preserve the golf course as a
greenspace area as further described below; and
WHEREAS, all parties also have agreed to vigorously pursue annexation by COAB of
all portions of the Property that are currently located within the limits of the City of Jacksonville;
and
WHEREAS, the parties are otherwise authorized to enter into this Agreement and desire
to do so under the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein and for other good and valuable consideration, the legal sufficiency of which is
acknowledged by the parties, the parties agree as follows.
SECTION 1. RECITALS. The above recitals are true and correct, are
incorporated as if fully set forth herein, and form a material part of this Agreement upon which
the parties have relied.
SECTION 2, DEFINITIONS. As used in this Agreement, the following terms
shall have the following meanings:
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AGENDA ITEM 0 813
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a. "COAB Water System" means the distribution lines, treatment plants,
reservoirs, pump stations, mains, residential and commercial connections, and any other parts or
components which comprise the public water and wastewater system of the City of Atlantic
Beach, which is managed and operated by the City of Atlantic Beach,
b, "Conservation" means the creation, restoration, enhancement and /or
management of natural areas.
c. "DEP" means the Florida Department of Environmental Protection.
d, "Essential Services" means facilities, installations, and structures used to
provide for basic public needs including water, sewer, drainage, stormwater management, re -use
water, gas, telephone, cable, radio, electric, and similar services. "Essential Services" also
include parking areas, bag drop, access drives, and service roads.
e "Force Majeure" means any delay or delays which are beyond the
reasonable control of the parties, including, but not limited to, acts of God, fire, adverse weather
conditions such as hurricanes and tornadoes, disease or pests which destroy trees and plants,
strike or other industrial disturbance (not due to breach of an applicable collective bargaining
agreement), war, riot, civil disobedience, insurrection, explosions, boycotts, acts or refusals to
act by any public authority (other than COAB), or orders of any court (excluding any court order
obtained by the party claiming relief by reason of force majeure, including, without limitation,
the order of any bankruptcy court in connection with a party's bankruptcy filing), or the inability
to obtain necessary materials, supplies, labor or permits due to rules, regulations, orders, laws or
proclamations, either local, federal or state, civil or military, such as delay in the issuance of a
building or construction permits.
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f "Golf Course" includes the tees, fairways, putting greens and one or more
natural or artificial hazards associated with a golf course use. "Golf Course" also includes
associated lighting and fencing, walls and gates, bathrooms, starter or half way houses or
shelters /stops, permanent or temporary shelter facilities, benches, informational kiosks,
informational signage, practice facilities, course maintenance facilities and equipment, golf cart
paths, golf cart maintenance and /or storage facilities, facilities for the sale and service of food
and beverages, including alcoholic beverages, pro shop (including retail sales), and any other
similar uses supporting the Golf Course. Golf Course also includes any temporary uses and
facilities, structures, or equipment associated with golf tournaments (including seating and media
facilities), golf instruction, or golf education.
g.
"Greenspace" means Golf Course uses, Essential Services, Low Intensity
Recreation and Conservation uses or any combination thereof, as those uses are defined herein.
h. "Low Intensity Recreation" means open, undeveloped space, park(s),
playground(s), trail(s), boardwalks, footbridges, hiking paths, garden(s), ponds, observation
platforms, storage sheds for maintenance vehicles and equipment, related recreational amenities
such as restrooms, benches, picnic areas, shelters and informational kiosks, fencing, walls and
gates, informational signage, habitat enhancement devices such as birdhouses and bat houses,
and other similar uses designed for and used for low intensity /low impact recreational uses.
i. The "Point(s) of Delivery" is the location where the Reclaimed Water is
delivered, and possession is transferred, from COAB to ABP, or its successor's in interest or
assigns, which location or locations shall be as noted on approved engineering drawings,
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AGENDA ITEM # 8B
OCTOBER 14, 2013
The "Pond" is the approximately 3 million gallon pond to be constructed
on the golf course property which will store the Reclaimed Water to be used for the golf course
property. The Pond constitutes the Point of Delivery for the golf course.
k. "Potable Water" means water meeting the requirements of the state of
Florida for human consumption and other domestic uses,
i. "Reclaimed Water" means wastewater that is under the direct control of
the treatment plant owner/operator which has been treated to a quality suitable for beneficial
reuse in compliance with federal, state and local laws, rules and regulations.
m, The "Recreation and Greenspace Easement" means the agreement
attached hereto and incorporated herein as Exhibit "B" which sets forth the terms and conditions
whereby the Country Club and/or ABP have agreed to preserve, in perpetuity, subject to the
default provisions herein, a specific portion of the Property for Greenspace uses only as those
uses are defined in subsection "g" above -.
n. The "Ultimate User" shall mean the person or entity ultimately utilizing
the Reclaimed Water for irrigation purposes. At any given time, the "Ultimate User" may
include one or more of the following entities: the Country Club, ABP, a homeowners'
association, individual lot owners and/or the Country Club's or ABP's successors, assigns and
transferees, and purchasers.
o. "WMD" means the St. Johns River Water Management District.
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AGENDA ITEM # 8B
OCTOBER 14, 2013
Arty other words or phrases relating to the use of Reclaimed Water herein shall have the same
definitions as those given in Chapters 373 and 403, Florida Statutes, and Chapter 62 -610, Florida
Administrative Code.
SECTION 3. TRANSFER OR ASSIGNMENT.
a. COAB may assign its rights and obligations, in whole or in part, under this
Agreement, without the consent of the Country Club or ABP, to an entity which assumes such
rights and obligations, provided COAB delivers written notice of such assignment and
assumption to the Country Club and ABP least thirty (30) days prior to any assignment.
b. ABP shall have the right to sell, transfer or otherwise encumber the
Property described herein, without the consent of COAB, and any such sale, transfer, or
encumbrance shall not be prohibited by this Agreement, except that written notice of any
proposed sale, transfer or encumbrance must be given to COAB at least thirty (30) days prior to
such sale, transfer or encumbrance. Additionally ABP may assign or transfer their rights and
obligations, in whole or in part, under this Agreement, without the consent of COAB, to an entity
which assumes such rights and obligations, provided ABP delivers written notice of such
assignment and assumption to COAB at least thirty (30) days prior to any assignment. Notice
shall not be required for any transfers by and between ABP and the Country Club or ABP and a
homeowners' association which has been duly and legally established to regulate, maintain and
control the residential portion of the Property. Any subsequent party in interest shall be required
to utilize the allocation of Reclaimed Water described in this Agreement.
c, The Country Club shall have the right to sell, transfer, or otherwise
encumber the Property, in whole or in part, without the consent of COAB; provided, however,
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AGENDA ITEM # 811
OCTOBER 14, 2.013
that Grantor shall provide notice to COAB at least forty -five (45) days prior to any such
assignment or transfer.
d. This Agreement shall be binding upon and inure to the benefit of COAB,
the Country Club, ABP and their respective successors, assigns, purchasers, transferees, trustees,
receivers, administrators, personal representatives, legatees and devisees,
e. The terms and conditions of this Agreement shall constitute a covenant
that runs with the Property.
SECTION 4. TERM OF THE AGREEMENT.
a. Consistent with the terms and conditions of this Agreement, COAB shall
deliver and the Country Club, ABP, and all respective successors in interest and assigns shall
accept and use Reclaimed Water produced by COAB as herein provided for a term of twenty -
five (25) years from the date of completion of construction of the COAB Water System. Such
term is subject to automatic extensions consisting of five (5) years for each extension. The
extensions are automatic unless the Country Club or ABP, for the Reclaimed Water they accept
and use respectively, elects to terminate the Agreement at the end of the most recent term. In
such case, the Country Club or ABP shall give written notification of the election to terminate
the Agreement to COAB at least six (6) months prior to the end of the upcoming term. If either
the Country Club or ABP individually elects to terminate the Agreement, such election does not
terminate the Agreement as to the other party and the Agreement and all such rights, obligations
and covenants thereunder shall remain in full force and effect with regard to the remaining party
and COAB. COAB may not terminate this Agreement; nor may COAB elect not to renew this
Agreement. if the Country Club elects to terminate this Agreement, the Recreation and
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AGENDA ITEM 8B
OCTOBER 14, 2013
Greenspace Easement will remain in full force and effect. However, pursuant to the terms of the
Recreation and Greenspace Easement, if COAB breaches this Agreement, the Easement will
automatically terminate.
b. In return for COAB's promise to supply Reclaimed Water for a period of
twenty --five (25) years, such period to be extended with any renewal periods, the ABP and/or the
Country Club hereby agrees to execute the Recreation and Oreenspace Easement which shall
restrict uses on that portion of the Property described therein to Greenspace uses only, in
perpetuity, subject to the default provisions herein.
SECTION 5. RECLAIMED WATER TO BE USED FOR IRRIGATION.
a. PERMITTINC AND CONSTRUCTION OF THE COAB WATER
SYSTEM, COAB shall obtain all necessary permits from federal, state and local governmental
and regulatory agencies having jurisdiction over the construction and use of the COAB Water
System. COAB shall be solely responsible for the ownership, operation and maintenance of all
portions of the COAB Water System and shall be solely responsible for all construction,
permitting, maintenance, capital and operation costs related to the system. If the Country Club
or ABP is required to obtain a permit from DEP or the WMD, COAB agrees to assist with the
preparation of the necessary applications and/or forms and will pay any related fees and costs,
but the permittee, whether it be the Country Club or ABP, understands that it will be responsible
for all compliance requirements under the permit. The parties agree that any permits held by the
Country Club or ABP can be transferred to another party as long as such transfer complies with
applicable rules and regulations and is authorized or approved by the appropriate permitting
agency.
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AGENDA ITEM # 813
OCTOBER 14, 2013
b. CONSTRUCTION OF SYSTEMS FOR DELIVERY OF
RECLAIMED WATER
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The Golf Course property:
(1)
Subject to the permitting provisions set forth above, ABP
agrees to construct the Pond on the golf course property
which will serve as the Point of Delivery for Reclaimed
Water for the golf course.
(2) COAB agrees to install or modify, at its own cost and
expense, the necessary piping, pumps, valves, electrical
lines and other appurtenant equipment needed to deliver the
Reclaimed Water from the COAB Water System to the
Pond in accordance with all applicable federal, state, and
local laws, rules, and regulations.
(3) ABP agrees to install or modify, at its own cost and
expense, the necessary irrigation system(s), which
system(s) may include piping, pumps, valves, electrical
lines and other appurtenant equipment, to the extent that
ABP deems necessary, in order to use the Reclaimed Water
from the Pond for golf course irrigation in accordance with
all applicable federal, state, and local laws, rules, and
regulations-
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(4) Following the initial installation of the irrigation system(s)
on the golf course property, ABP shall be solely
responsible for ownership, operation and maintenance of all
portions of the irrigation system located within the
boundaries of the golf course property. Upon transfer of
the golf course property from ABP to the Country Club, the
Country Club will then be solely responsible for ownership,
operation and maintenance of all portions of the irrigation
system located within the boundaries of the golf course
property.
ii.
The residential nr'oiaerty:
(1) COAB agrees to install or modify, at its own cost and
expense, the COAB Water System to serve the residential
portions of the Property which will run from the CRAB
Water System to a point or points agreed to by COAB and
ABP adjacent to the residential portions of the Property
(the "Initial Point of Connection"). The COAB Water
System may include piping, pumps, valves, electrical lines,
meters and other appurtenant equipment, to the extent that
COAI3 deems necessary in order to provide the Reclaimed
Water up to the Initial Point of Connection in accordance
with federal, state, and local laws, rules, and regulations.
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(2) ABP agrees to design and install, at its own cost and
expense, special irrigation pipe to be know as "Purple Pipe"
which will serve the needs of the residential portion of the
Property, as determined by ABP, and which will run from
the initial Point of Connection along right - of-way which
will be established by ABP. ABP will stub -out the Purple
Pipe at each lot line within the new residential subdivision,
at the entrance on Selva Marina Drive, and at any other
common areas as deemed necessary by ABP, separate and
apart from the water lines provided for Potable Water. if
COAB desires any upgrades or upsizing of the Purple Pipe,
COAB agrees to pay for any and all costs and expenses
specifically associated and related to the design and
installation of such upgrades and /or upsizing.
(3)
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Following completion of horizontal construction of the
residential subdivision, ABP agrees to dedicate the Purple
Pipe to COAB. ABP and COAB agree that following the
dedication of the Purple Pipe, the Point(s) of Delivery will
then be considered to be located at the stub -out points for
the individual residential lots, at the stub -out point for
Selva Marina Drive, and at any additional stub -out points
created for the common areas located within the residential
portion of the Property.
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c. POSSESSION & CONTROL OF RECLAIMED WATER. COAB
shall be deemed to be in possession and control of the Reclaimed Water until it is delivered to an
Ultimate User at the Point(s) of Delivery. After such delivery, the Ultimate User shall be
deemed to be in possession and control thereof.
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d. USE OF RECLAIMED WATER,
Ultimate Users shall purchase Reclaimed Water delivered by
COAB as set forth below and use it for irrigation, where such use is economically
and physically feasible; however, such use of the Reclaimed Water shall be
consistent with all current and future rates, rules and regulations of COAB, DEP,
the WMD and all other governmental and regulatory agencies having jurisdiction
over the Property or the use of Reclaimed Water.
ii In no event will an Ultimate User allow the discharge of
Reclaimed Water directly into surface waters of the state of Florida without
obtaining consent from COAB and a permit from DEP or the WMD. Ultimate
Users shall take all reasonable precautions, including signs and labeling, to
prevent cross - connections between Reclaimed Water and other water sources.
iii. COAB hereby consents to any and all discharges authorized
pursuant to any valid state, federal or local permit held by Selva Marina, ABP, the
Country Club or their successors and assigns.
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e. VOLUME OF WATER DELIVERY SCHEDULE,
Except to the extent of adverse conditions as provided in Section
5.f. below, COAB shall deliver to the Pond as needed, and the Country Club shall
accept and use, an average volume of approximately 1.0 million gallons per day
(MGD) of Reclaimed Water, or other water suitable to irrigate the golf course, as
determined by the Country Club - beginning no later than a time between January -
March 15, 2014 and continuing for that period necessary for the grass on the golf
course to adequately grow in as determined by the Country Club., The Country
Club shall be solely responsible for determining when the grass has sufficiently
grown in and shall make such determination as would be reasonably made by
others in the golf course operations industry.
ii, Except to the extent of adverse conditions as provided in Section
55. below, after the Country Club has determined that the golf course grass has
adequately grown in COAB will provide, as needed, the average volume of
Reclaimed Water, other suitable water,
delivered to the Country Club-te approximately 400,000 gallons per day (GD) on
average, and will continue to deliver, as needed, and the Country Club shall
accept and use, the Reclaimed Water, or other Country Club oppravcdsuitahle
water, at this approximate volume for the duration of this Agreement, The parties
acknowledge that the volume of water will be subject to seasonal fluctuations and
have considered these fluctuations in this section.
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iii. ABP and/or the Country Club agrees to provide COAB with a
meter to be installed by COAB at the Point of Delivery for the Pond which will be
used to monitor the volume of Reclaimed Water being delivered to the Pond.
iv. With regard to individual lot owners within the residential portion
of the Property, COAB will charge a connection fee that includes the cost of a
meter for use of the Reclaimed Water which meter will measure the volume of
water utilized by that lot owner.
F DELIVERY OF RECLAIMED WATER UNDER ADVERSE
CONDITIONS /FORCE MAJEURE.
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The parties recognize that adverse weather conditions or Force
Majeure events may necessitate modification of the normal delivery schedule and
volume established by COAB. The parties recognize that these adverse weather
conditions or Force Majeure events may result in a need for Reclaimed Water
greater or less than the volumes set forth in section 5.e. above. in the event of
adverse weather conditions or other unforeseen circumstances, the Ultimate Users
shall have the right to refuse some or all of the Reclaimed Water as is reasonably
dictated by the adverse weather conditions or Force Majeurc events.
Additionally, the Ultimate Users shall have the right to request a greater volume
of Reclaimed Water, subject to availability as determined by COAB. In the event
a greater volume of Reclaimed Water is supplied, it shall be delivered under such
pressure as the COAB Water System is capable of producing.
ii. If COAB's transmission or delivery system fails for reasons or
Force Majeure events beyond COAB's control, or when COAB performs
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maintenance or repairs on the COAB Water System, then delivery of Reclaimed
Water under the requirements of this Agreement may be temporarily interrupted
or limited in quantity.
iii. If an Ultimate User's irrigation system fails, or if an Ultimate User
is performing maintenance or repairs to its irrigation system, then the Ultimate
User may request that delivery of the Reclaimed Water be temporarily suspended
or limited in quantity until the necessary repairs can be made, which shall be
made in a reasonable period of time. If the Pond utilizes a float gauge system
connected to the pumps at the COAB Water System, then it will not be necessary
for the Country Club to request that delivery of the Reclaimed Water be limited or
reduced. However, the Country Club agrees to notify COAB if unusual
circumstances occur which would require the temporary suspension of delivery of
Reclaimed Water.
iv. If for any reason during the term of this Agreement, federal, state,
or local governments or agencies fail to issue the necessary permits, grant the
necessary approvals, or otherwise require any changes in the operation of the
COAB Water System or the application and use of Reclaimed Water by an
Ultimate User, then to the extent that such requirements affect the ability of any
party to perform under the terms of this Agreement, the affected party shall be
excused from performance thereof until such permits, approvals or changes are
obtained. Notwithstanding the above, COAB agrees to deliver other suitable
water for grow -in and /or irrigation during this time period.
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AGENDA ITEM {t 8B
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CHARGE FOR RECLAIMED WATER USE. COAB will establish,
and amend in the future as needed, volume based rates for the sale of the Reclaimed Water for all
customers of the COAB Water System. Further, the rate for Reclaimed Water will be designed
to equitably share the costs of operation of the Reclaimed Water portion of the COAB Water
System and to equitably amortize the construction costs of the Reclaimed Water system between
all users of the system now and in the future.
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i. The Golf Course Property. In recognition of the terms and
conditions of this Agreement, in consideration for the Country Club agreeing to
enter into the Recreation And Greenspace Easement, and in consideration of
COAB's commitment to build the Reclaimed Water portion of the COAB Water
System, the rate the Country Club will be charged for use of all Reclaimed Water
delivered to the Pond shall be calculated as follows:
(1)
Initial Eighteen Months: Due to anticipated fluctuations in
need during the grass grow -in period and the construction
phase of the golf course portion of the Property and in
order to establish a baseline for the projected needs of all
Bulk Users, including the Country Club, COAB will not
charge the Country Club for delivery of Reclaimed Water
to the Pond for the first eighteen (18) months.
(2) The Following Years: After the first eighteen (18) months,
the Country Club will be charged as follows:
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AGENDA ITEM # 813
ocTogER 14, 2013
(a) Rate; COAB will calculate a rate to be charged for
all Bulk Users which will include the Golf Course.
This rate will be determined by COAB based upon
the projected yearly Reclaimed Water use by all
users, both public and private, and the projected
operating costs for the upcoming year which will
include, but not be limited to, chemicals, testing,
electricity, equipment maintenance and manpower.
COAB shall base the projected yearly Reclaimed
Water use for Bulk Users upon the previous year's
use by all Users, adjusted as COAB deems
necessary and appropriate. The estimated annual
operating cost is $40,800.00.
(b) Calculation of the Country Club's Monthly Charge:
Each month, COAB will calculate the Country
Club's fee based upon the actual use of Reclaimed
Water by the Country Club, as determined by
reading the meter located at the Pond, multiplied by
the established monthly rate. In recognition of the
Country Club executing the Recreation And
Greenspace Agreement, the Country Club will
receive credit from COAB for the first fifty (50 %)
percent of the bill and will be responsible for
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AGENDA ITEM it 813
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payment of the remaining fifty (50 %) percent of the
Actual Operating Costs: In no case shall the charge to the
Country Club for any given year exceed the actual cost to
operate the Reclaimed Water portion of the COAB Water
System. If it is determined that the Country Club's charges
for the year exceeded the actual operating costs, the
Country Club shall be given a rebate or credit towards the
next year's charges.
ii, The Residential Property. The Ultimate Users within the
residential portion of the Property will have individual meters and will be charged
the established volume based rate. That rate will be less than potable water rates
charged by COAB.
h. QUALITY OIL RECLAIMED WATER. The Reclaimed Water
delivered by COAB shall be of a quality satisfactory for irrigation of grass and landscaped areas
with unrestricted public access in accordance with all applicable federal, state and local laws,
rules and regulations. The Ultimate Users understand and agree that the quality of the Reclaimed
Water is different from normal Potable Water and that the possibility exists that the Ultimate
Users' turf management practices may have to be altered.
SECTION 6. ANNEXATION. Selva Marina, the Country Club and ABP have
represented to both the City of Atlantic Beach and the City of Jacksonville that they wish to
annex those portions of the Property currently located within. Jacksonville into Atlantic Beach so
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that all of the Property will be located within a single municipality. Seiva Marina, the Country
Club and ABP believe that the most efficient way to provide services to the new residential
development on the Property will be to have them provided by the City of Atlantic Beach. All of
the parties agree to vigorously pursue annexation.
SECTION 7. GREENSPACE PRESERVATION. RVATION. The parties agree that it is
in the best interest of the Country Club, ABP and the residents of the City of Atlantic Beach to
preserve as much Greenspace as possible while still permitting development of the Property in a
reasonable and economically beneficial manner. To accomplish this goal, the Country Club
and /or ABP and COAB have entered into the Recreation and Greenspace Easement whereby the
Country Club and/or ABP has agreed to perpetually preserve the golf course property, as
specifically described in the Recreation and Greenspace Easement, for Greenspace uses. This
Easement shall be recorded by COAB in a timely fashion in the the public records of Duval
County, Florida by either COAB or ABP. If ABP records the Easement a copy of the recorded
document shall be delivered to COAB. The Recreation and Greenspace Easement is attached
hereto and incorporated herein as Exhibit "B" to this Agreement. The Recreation and
Greenspace Easement is binding on the Country Club, ABP and any successors, assigns,
transferees, or purchasers regardless of whether the annexation of the Property is approved.
SECTION S. EFFECTIVE DATE. This Agreement becomes effective on the
date upon which ABP acquires title to the Property or simultaneously with the effective date of
the Recreation and Greenspace Easement, whichever date is later.
SECTION 9. NOTICES. All notices required or authorized under this
Agreement shall be given in writing and shall be served by certified or First Class, LIS. mail,
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AGENDA ITEM # 8E
OCTOBER 14, 2013
postage prepaid, to the parties at the address listed below or such other addresses as may from
time to time be designated by written notice given as herein required:
THE COUNTRY CLUB:
'Drive
Florida 32233,
ABP:
s
Attn: Michael Carli
1600 Selva Marina
Atlantic Beach
Attn: Rick Wood
414 Old Hard Road #502
Fleming Island, Florida 32003,
CITY OF ATLANTIC BEACH: Attn: City Manager,
The Cit of Atlantic Beac
800 Seminole Roach
a
SECTION 10.
Atlantic Beach, Florida 32233
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EVENTS OF DEFAULT. If any party to this Agreement
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shall fail to perform or comply with any of the covenants, terms or conditions of this Agreement,
a non - defaulting party may send a notice of default to the defaulting party. The defaulting party
shall have not less than thirty (30) days to cure the default. If the party receiving the notice fails
to cure the default within the time period specified in the notice of default, said failure to cure
shall constitute an event of default. If a failure of COAB to perform or observe any term of this
Agreement gives rise to circumstances or conditions which constitute an emergency situation
where human health or safety is threatened or substantial damage to the Property could result, the
non - defaulting party shall be entitled to take immediate curative action (prior to the expiration of
any notice and cure period) to the extent necessary to eliminate the emergency. COAB, if it is
determined to have committed a default, shall pay to the non- defaulting party the amount of such
cost, upon written demand, provided such cost must be reasonable in amount and reasonably
incurred and must not exceed the scope of COAB's default. Such costs must be reasonably
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AGENDA ITEM # 8B
OCTOBER 14, 2013
documented and copies of such documentation must be delivered to COAB with the written
demand for reimbursement.
SECTION 11. REMEDIES IN THE EVENT OF DEFAULT.
a. Upon the occurrence of an event of default by a party hereunder which is
not cured within the time period permitted, the non- defaulting party shall be entitled to
commence any legal action or proceeding against the defaulting party arising out of law, in
equity or by statute, including, but not limited to, an action for damages or an action for
injunctive relief far specific performance of the defaulting party's obligations hereunder. No
choice of remedy by the non- defaulting party is intended to be exclusive of any other remedy
available to it, but shall be cumulative and shall be in addition to every other remedy available at
law or in equity or by statute.
b. Upon the occurrence of an event of default by COAB which is not cured
within the time period permitted, the Country Club or ABP may elect to send a Notice of
Uncured Default to COAB and may elect to record any such notice in the official public records
of Duval County, Florida.
c. In the event that COAB fails to timely cure an event of default as
described herein, the Recreation and Grcenspace Easement shall automatically terminate
pursuant to the terms of the Easement,
SECTION 12. INSPECTION. COAB shall have the right, upon reasonable
notice to the Country Club or ABP as appropriate, to enter upon the Property to review and
inspect the Country Club's or ABP's operating practices as they relate to this Agreement.
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AGENDA ITEM #1 86
OCTOBER 14, 2013
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SECTION 13. AUTHORITY. Each party represents to the other that it has
undertaken all necessary actions to execute this Agreement, that it has the legal authority to enter
into this Agreement, and to undertake all obligations imposed upon it.
SECTION 14. SEVERAIIILITY. If any part of this Agreement is held by a
court of competent jurisdiction to be invalid, illegal or unenforceable, such invalid, illegal or
unenforceable part shall be deemed severable, and the remaining parts of this Agreement shall
continue in full force and effect provided that the rights and obligations of the parties are not
materially prejudiced and the intentions of the parties can continue to be effected.
SECTION 15. NON - WAIVER. The failure by one party to insist upon another
party's compliance with its obligations under this Agreement in any one or more instances shall
not operate to release such other party from its duties to comply with such obligations in all other
instances,
SECTION 16. APPLICABLE LAW AND VENUE. This Agreement and the
provisions contained herein shall be governed by and construed in accordance with the laws of
the State of Florida, In any action, in equity or law, with respect to the enforcement or
interpretation of this Agreement, venue shall be in Duval County, Florida.
SECTION 17. CONSENT AND SUBORDINATION. All holders of a
mortgage, lien or other applicable encumbrance upon the Property shall execute a Consent and
Subordination to this Agreement. Such Consent and Subordination shall be attached hereto and
incorporated by references as Exhibit "C.'°
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AGENDA ITEM 813
OCTOBER 14, 2013
SECTION 18. )ENFORCEMENT. Should any of the parties employ an attorney
to enforce any of the provisions of this Agreement, or defend any action instituted by another
party, the prevailing party shall be entitled to be reimbursed by the other party(ies) for all
reasonable costs, charges and expenses including attorneys' fees, expended or incurred in
connection therewith including same on appeal.
SECTION 19. NO THIRD PARTY BENEFICIARIES. This Agreement and
the exhibits hereto are for the sole and exclusive benefit of the parties hereto and their respective
successors and assigns, including any Homeowners' Association established for the residential
portion (fthe Property and its residents, and there shall be no other third party beneficiaries, and
nothing in this Agreement or the exhibits shall be construed to grant any other person any right,
remedy or claim under or in respect of this Agreement or any provision hereof. This Agreement
does not grant any rights or remedies to the general public.
SECTION 20. WAIVER OF TRIAL BY JURY. The parties waive their right to
trial by jury in any I itigation directly or indirectly arising out of or relating to this Agreement.
SECTION 21. ENTIRE AGREEMENT. AMENDMENT. This instrument and
its exhibits constitute the entire agreement between the parties and supersede all previous
discussions, understandings and agreements between them relating to the subject matter of this
Agreement. Amendments to and waivers of the provisions herein shall be made by the parties in
writing by formal amendment.
SECTION 22. CONSTRUCTION. The parties stipulate and agree that they
have each taken part in the negotiation of this Agreement. This Agreement constitutes the entire
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agreement between the parties and has been entered into voluntarily and with independent advice
and legal counsel and has been executed by authorized representatives of each party.
SECTION 23. EXHIBITS AND ADDENDUMS.
Exhibit ` °A" - Property Description
Exhibit "B" - Recreation and Greenspace Easement
Exhibit "C" - Consent and Subordination Agreement
SECTION 24. RECORDING, This Agreement, including the exhibits thereto,
shall be recorded in the Public Records of Duval County, Florida. AI3P shall bear the costs of
such recording.
IN WITNESS WHEREOF, the parties hereto, by and through the undersigned, have
entered into this Master Agreement on the date and year first above written.
THE CITY OF ATLANTIC BEACH, FLORIDA,
a municipal corporation
M�vni
ATTEST:
I ylielPrint Name:
Title:
I ]AX \I76365521-I12
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AGENDA ITEM # 8B
OCTOBER 14, 2013
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Approved as to form and legality:
STATE OF FLORIDA
COUNTY OF DUVAL
}
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City Attorney
AGENDA ITEM it 813
OCTOBER 14, 2013
Sworn to and subscribed before me this day of
, 2013, by , Mayor of the City of
Atlantic Beach, and who has acknowledged that s /hc executed the same on behalf of the City of
Atlantic Beach and that he was authorized to do so. 14eS /he (cheek one) ❑ is personally known
to me or O has frFeduced ns identificntionproved to me on basis of satisfactory
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ySlt{'rlalA'I'
Notary Public, State of Florida
Name:
My Commission Expires:
My Commission Number is:
ATLANTIC BEACH COUNTRY CLUB, INC.,
a Florida Corporation
By:
Name: Michael Carlin, President
STATE OF FLORIDA
COUNTY OF DUVAL
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AGENDA ITEM # 8B
OCTOBER 14, 2013
Sworn to and subscribed before me this day of , 2013, by
Michael Carlin, as President of Atlantic Beach Country Club, Inc. He (check one) ❑ is
ersonall r known to nee or ❑ has proved to me on basis of satisfactor evidence to be the *erson
who executed this instrument,
ATLANTIC BEACH PARTNERS, LLC
a Florida Limited Liability Compan
Natal- Public State of Florida
Name:
My Commission Expires:
My Commission Number is:
By: THE WOOD DEVELOPMENT COMPANY OF JACKSONVILLE.
its Managing Member
James Ricky Wood, President
STATE OF FLORIDA
COUNTY OF DUVAL
Sworn to and subscribed before me this day of , 2013,
James Rick Wood as President of The Wood Develo ment Company of Jacksonville
Manning Member of Atlantic Beach Partners, LLC. He (check one) ❑ is personally known to
me or ❑ has .roved to me on basis of satisfactor evidence to be the erson who executed this
instrument,
1
JAN I1763655_44.11
Notary Public, State of Florida
Name:
My Commission Expires:
My Commission Number is:
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3AXt1763655 4-412
EXHIBIT "A"
Property Description
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AGENDA ITEM # 88
OCTOBER 14, 2013
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EXHIBIT "B"
Recreation and Creenspace Easement
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AGENDA ITEM # 8E3
OCTOBER 14, 2013
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AGENDA ITEM # 8B
OCTOBER 14, 2013
EXHIBIT "C"
Consent and Subordination Agreement
The undersigned hereby certifies that it is the holder of a mortgage, lien or other
encumbrance upon certain land in Duval County, Florida, more particularly described as:
See Exhibit "1" attached hereto and made a part hereof.
in consideration of the sum of Ten and No /100 Dollars ($10.00) and other valuable
consideration, the receipt of which is hereby acknowledged, and by execution of this Consent
and Subordination Agreement the undersigned consents to the Agreement for the delivery of
Reclaimed Water ( "Agreement ") entered into by the CITY OF ATLANTIC BEACH,
ATLANTIC BEACH COUNTRY CLUE, INC., and ATLANTIC BEACH PARTNERS,
LLC, and agree that its (mortgage /note /etc...), which was recorded in the Official Records Book
, Page , of Duval County, Florida, on , shall be
subordinate and subject to the terms, covenants, conditions and agreements set forth in said
Agreement.
IN WITNESS WHEREOF, the undersigned has caused these presents to be executed by
its undersigned officer this day of , 2013. .
Witnesses:
1)
Print Name:
2)
Print Name:
,STATE OF FLORIDA
Name:
By:
Its:
,COUNTY OF DUVAL.
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Notary Public, State an f County Aforesaid
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Notary Public, State of Florida
Name:
M Commission Ex . ires:
My Commission Number is:
AGENDA ITEM # 8B
OCTOBER 14, 2013
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September 13, 2013 4:02 PM
AGENDA ITEM Ii 813
OCTOBER 14, 2013
Document
Location
Original
Selva Marina & City of Atlantic Beach
Water Use Agreement v
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Selva Marina & City of Atlantic Beach
Water Use Agreement v
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AGENDA ITEM 11 SB
OCTOBER 14, 2013
Prepared By;
Emily C. Pierce, Esq.
Rogers Towers, P.A.
1301 Rivcrplace Boulevard, Suite 1500
Jacksonville, Florida 32207
Tax Parcel 11D No.:
RECREATION AND GREENSPACE EASEMENT
This RECREATION AND GREENSPACE EASEMENT is made this day
of , 2013 by ATLANTIC BEACH PARTNERS, LLC, a Florida limited liability
company, having an address at 414 Old Hard Road #502, Fleming Island, Florida 32003, and
being the owner of approximately acres of land in Duval County, Florida ( "Grantor" or
"ABP "), in favor of THE CITY OF ATLANTIC BEACH, a municipal corporation, organized
and constituted in the County of Duval and State of Florida, whose mailing address is 800
Seminole Road, Atlantic Beach, Florida 32233 ( "Grantee" or "COAB ").
INTENT AND PURPOSE
The intent of the Grantor and Grantee and purpose for the execution of this Easement is
to ensure that the property which is the subject of this Easement is served by an adequate source
of irrigation water at reasonable rates and to prohibit intense, dense development of the subject
property and to maintain the benefits of limited development. The intent and hose of this
Easement for the City of Atlantic Beach is the protection of the Golf Course Property as a scenic
amenity, in perpetuity, subject to the termination provisions below. In furtherance of this intent
and to accomplish the stated purpose of this Easement, the Grantee has agreed to provide
irrigation water for the subject property, adequate in quantity, quality and price to irrigate and
water the Golf Course and related amenities, as defined herein, as such agreement is further set
forth in the Master Agreement, and Grantor has agreed to preserve, in perpetuity, the subject
property for Golf Course uses, Essential Services uses, and Low Intensity Recreation and
AGENDA ITEM # 8B
OCTOBER 14, 2013
Conservation uses as those terms are further defined herein. To implement the intent and
purpose of this Easement, a Baseline Documentation Report, as described herein, is required
which will establish a baseline of the characteristics, current uses, and status of improvements on
the subject property. This Easement specifically preserves and protects the subject property and
prevents any uses that are inconsistent with the stated intent and purpose of the Easement. In this
Easement, "consistent with the Intent and Purpose of this Easement" shall mean that the relevant
activities on or uses of the subject property will have a positive impact, neutral impact, or no
impact with regard to furthering the intent and purpose of this Easement.
WITNESSETH
WHEREAS, Grantor owns in fee simple certain real property located in the City of
Jacksonville and the COAB as more particularly described in Exhibit "A" attached hereto and
incorporated herein by this reference (the "GC Property "); and
WHEREAS, the GC Property, along with additional property, is currently used as a golf
course with supporting amenities and facilities; and
WHEREAS, Grantor intends on rebuilding and redeveloping a golf course with
supporting amenities on the GC Property; and
WHEREAS, due to the poor quality of the current irrigation water source for the exiting
golf course, it will benefit Grantor to find a new source of adequate irrigation water to operate
the redeveloped golf course on the GC Property; and
WHEREAS, Grantee has proposed to construct, own, maintain and operate a water
reclamation facility which will produce re -use water which may be used for irrigation purposes;
and
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AGENDA ITEM # 8B
OCTOBER 14, 2013
WHEREAS, Grantor desires to irrigate the grass and landscaped areas of the
redeveloped golf course on the GC Property, as appropriate and where feasible, with re -use water
from the COAB's water reclamation facility; and
WHEREAS, Grantor and Grantee have entered into the Master Agreement between the
City of Atlantic Beach, Florida, Atlantic Beach Country Club, Inc. (the "Country Club ") and
Atlantic Beach Partners, LLC ( "ABP "), with an effective date as described therein (the "Master
Agreement "), in which COAB will provide reclaimed water, at an agreed -upon rate, and at an
agreed upon quantity and quality, for the irrigation of the redeveloped golf course and supporting
amenities and facilities located on the GC Property and in which Atlantic Beach Country Club,
Inc. and Atlantic Beach Partners, LLC agree to record this Recreation and Greenspace Easement,
as described in the Master Agreement, on the GC Property; and,
WHEREAS, Grantor is otherwise authorized to enter into this Easement and desires to
do so under the terms and conditions hereinafter set forth.
NOW, THEREFORE, pursuant to the provisions of the Master Agreement and in
consideration of the above and the mutual covenants, terms, conditions, and restrictions
contained herein, together with other good and valuable consideration, receipt of which is hereby
acknowledged, Grantor hereby voluntarily grants and conveys to Grantee a Recreation and
Greenspace Easement over the GC Property in perpetuity, subject to the termination provision
set forth in Article 6 below, to the extent hereinafter set forth (as the "Easement ").
ARTICLE 1 RECITALS
1.1 RECITALS. The above recitals are true and correct, are incorporated as if fully
set forth herein, and form a material part of this Easement.
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AGENDA ITEM # 8B
OCTOBER 14, 2013
ARTICLE 2 DOCUMENTATION OF PRESENT CONDITIONS
2.1 BASELINE DOCUMENTATION REPORT. The GC Property will be
redeveloped by ABP and the Country Club as Golf Course and Essential Services, as defined in
Section 4.1 below. In order to document the condition of the GC Property as of the date of the
completion of redevelopment as Golf Course and Essential Services, a report will be prepared by
the COAB in cooperation with Grantor, at COAB's cost, after the completion of redevelopment
( "Baseline Documentation Report "). The Baseline Documentation Report will document the
characteristics and conditions, current uses, and status of improvements on and development of
the GC Property, The Baseline Documentation Report will be provided to the Grantor and will
be signed and acknowledged by Grantor, Grantee and the Country Club as an accurate
representation of the GC Property at the time of its preparation. The Baseline Documentation
Report will be used by the Grantee to assure that any future changes in the use of the GC
Property will be consistent with the terms of this Easement. However, the Baseline
Documentation Report is not intended to preclude the use of other evidence to establish the
condition of the GC Property as of the date of its preparation nor is it intended to preclude
development, changes, modifications, or adjustments to the use of the GC Property consistent
with the Intent and Purpose and terms of this Easement.
ARTICLE 3 TRANSFER OR ASSIGNMENT
3.1 TRANSFER OR ASSIGNMENT BY GRANTOR. Grantor shall make any
subsequent deed or other legal instrument by which Grantor divests itself of any interest in the
GC Property subject to the terms and conditions of this Easement. Grantor shall have the right to
sell, transfer, or otherwise encumber the GC Property described herein in whole or in part, under
this Easement without the consent of Grantee; provided, however, that Grantor shall provide
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AGENDA ITEM # 8B
OCTOBER 14, 2013
notice to Grantee, pursuant to Section 8.12 below, at least forty -five (45) days prior to any such
assignment or transfer. This section is not applicable to and notice shall not be required for any
transfers by and between ABP and the Country Club or ABP and the homeowners' association
for the residential subdivision to be developed by ABP adjacent to the GC Property.
3.2 TRANSFER OR ASSIGNMENT BY GRANTEE. This Easement is
transferable by the Grantee without the Grantor's consent provided that: (a) the Intent and
Purpose of the Easement continues to exist on the GC Property; (b) the transfer is restricted to an
organization that, at the time of the transfer, is qualified to hold a conservation easement as that
term is defined in Section 704.06, Florida Statutes; and (c) the qualified organization agrees in
writing to assume the responsibilities and obligations imposed on the Grantee in this Easement.
If Grantee ever comes to possess fee title of the GC Property, Grantee must ensure survivability
of this Easement and all of its terms and obligations by transferring this Easement to a qualified
organization under Section 704.06, Florida Statutes. If Grantee transfers the Easement, Grantee
will remain responsible for compliance with the terms and conditions of the Master Agreement.
ARTICLE 4 IMPROVEMENTS; ACTIVITIES
4.1 PERMITTED USES. Grantor shall maintain the GC Property for Greenspace
purposes. As used in this Easement, " Greenspace" shall mean the following uses: Golf Course,
Essential Services, Low Intensity Recreation and Conservation, or any combination thereof, as
these terms are further defined and described below.
(a) GOLF COURSE. "Golf Course" includes the tees, fairways, putting
greens and one or more natural or artificial hazards associated with a golf course use.
"Golf Course" also includes associated lighting and fencing, walls and gates, bathrooms,
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AGENDA ITEM # 8B
OCTOBER 14, 2013
starter or half way houses or shelters /stops, permanent or temporary shelter facilities,
benches, informational kiosks, informational signage, practice facilities, course
maintenance facilities and equipment, golf cart paths, golf cart maintenance and /or
storage facilities, facilities for the sale and service of food and beverages, including
alcoholic beverages for Country Club members, guests and invitees, pro shop (including
retail sales), and any other similar uses supporting the Golf Course. Golf Course also
includes any temporary uses and facilities, structures, or equipment associated with golf
tournaments (including seating and media facilities), golf instruction, or golf education.
Golf Course uses are permitted anywhere on the GC Property, and Golf Course uses may
be maintained, repaired, replaced, expanded or relocated anywhere on the GC Property,
provided that such Golf Course uses include no more than fifteen (15 %) percent
impermeable surface area across the entirety of the GC Property and provided that any
such maintenance, repair, replacement, expansion or relocation complies with all relevant
local ordinances and regulations for the construction of improvements. If the GC
Property ever ceases to be used as a Golf Course, then all Golf Course related signage
shall be removed. Any new signage shall be directly related to the Essential Services
uses or Low Intensity Recreation and Conservation uses of the GC Property. Further, if
the GC Property is no longer being used as a Golf Course, buffers, fencing and screening
on the GC Property directly related to the Essential Services uses or Low Intensity
Recreation and Conservation uses may be allowed if approved in writing by COAB.
(b) ESSENTIAL SERVICES. "Essential Services" means facilities,
installations, and structures used to provide for basic public needs including water, sewer,
drainage, stormwater management, re -use water, gas, telephone, cable, radio, electric, and
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similar services. "Essential Services" also include parking areas, bag drop, access drives,
and service roads for Golf Course uses and for maintenance and repair of Essential
Services uses. The Essential Services may be used to serve the GC Property, the
adjoining clubhouse and amenities of the Country Club, and the adjacent residential
community to be developed by ABP and known as the Atlantic Beach Country Club
located adjacent to the GC Property. Essential Services are permitted uses anywhere on
the GC Property, and Essential Services may be maintained, repaired, replaced, expanded
or relocated anywhere on the GC Property as long as those uses are consistent with the
fifteen (15 %) percent impermeable surface limitations set forth above and comply with
all relevant local ordinances and regulations.
(c) LOW INTENSITY RECREATION AND CONSERVATION. "Low
Intensity Recreation" means open, undeveloped space, park(s), playground(s), trail(s),
boardwalks, footbridges, hiking paths, garden(s), ponds, observation platforms, storage
sheds for maintenance vehicles and equipment, related recreational amenities such as
restrooms, benches, picnic areas, shelters and informational kiosks, fencing, walls and
gates, informational signage, habitat enhancement devices such as birdhouses and bat
houses, and other similar uses designed for and used for low intensity /low impact
recreational uses. "Conservation" means the creation, restoration, enhancement and /or
management of natural areas. Low Intensity Recreation and Conservation may serve the
GC Property, the adjoining clubhouse and amenities of the Country Club, the adjoining
residential property, or the public subject to appropriate buffers, fencing and screening to
protect the residential uses adjacent to the GC Property. Low Intensity Recreation and
Conservation is a permitted use anywhere on the GC Property, and Low Intensity
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AGENDA ITEM # 8B
OCTOBER 14, 2013
AGENDA ITEM # RB
OCTOBER 14, 2013
Recreation and Conservation may be maintained, repaired, replaced, expanded or
relocated anywhere on the GC Property as long as those uses are consistent with the
fifteen (15%) percent impermeable surface limitations set forth above and comply with
all relevant local ordinances and regulations.
42 PERMITTED MAINTENANCE. Subject to any applicable local, state, and
federal laws, rules and regulations, grass, plants, trees, shrubs, bushes, flowers, and similar
landscaping materials may be planted, removed, moved, mowed, trimmed, and maintained on the
GC Property at Grantor's discretion. Additionally, soil, fill dirt, rocks, and vegetation may be
placed, moved, and/or removed within or from the GC Property at Grantor's discretion, At no
time may any species of plant or animal on the Florida Invasive Species (FIS) database as
maintained by the Florida Exotic Pest Plant Council, its successive lists or organizations, be
planted on the GC Property. Further, Grantor may utilize any and all fertilizers, herbicides,
pesticides, and similar products on the GC Property in compliance with local, state, and federal
laws and regulations governing their use.
4.3 TREE AND NATIVE PLANT PROTECTION.
Grantor agrees to maintain a caleulat the ative Tree Canopy= ts-a- of
eleven and seventeen hundredths (l 1.17%) percent of the GC Property, which " following a
reasonable time for _row in of the trees and lants after redevelo ment of the Golf Course.
Native Tree Canopy" is defined as a fixed area covered by the crown of contiguous native tree
species or delimited by the vertical projections of their outermost perimeters allowing for small
openings in the canopy assuming it creates no major division in land cover type. 'ving-the
've Tree
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Native Tree Can y- -iu-t e—l3a ;cline Doc- umentat -ion Report, wl :hevet if, after grow
in. Grantor intends to clear canopy to an extent which would reduce the canopy to less than the
required minimum Native Tree Canopy provided above, then at least thirty (30) days prior to the
clearing Grantor must submit to Grantee for its review and approval a written plan for re-
vegetation up to the required minimum Native Tree Canopy. Grantor agrees to refer to the FIS
database prior to planting vegetation on the GC Property in order to ensure the preservation of
native plant species on the GC Property. If, for water conservation purposes, Grantor and
Grantee jointly determine that the use of water for the maintenance of trees does more
conservation harm than good, then the parties may agree to a reduction of the Native Tree
Canopy below the minimum requirement by properly mitigating for the tree removal in
accordance with Part. II, Chapter 23 (Protection of Trees and Native Vegetation), COAB Code of
Ordinances, and by maintaining, in the future, at least fifteen - (I- 5eleven and seventeen
hundredths (11.17 %) percent of the GC Property in planted native, xeric groundcover. Nothing
in this section is intended to exempt Grantor from complying with other tree and native plant
protection requirements under applicable local, state, and federal laws.
4.4 GARBAGE. Following completion of redevelopment of the Golf Course, the
dumping or accumulation of any kind of garbage, trash, sludge, or refuse on the GC Property,
other than in approved dumpsters and containers, is prohibited, unless such dumping or
accumulation consists of the storage of biodegradable materials for purposes of compositing,
landscaping, or maintenance of greens or gardens on the GC Property, the temporary storage of
storm vegetation /debris, or similar purposes consistent with local, state, and federal laws and
regulations.
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OCTOBER 14, 2013
AGENDA ITEM # 8B
OCTOBER 14, 2013
4.5 MINERALS. The exploration for, or extraction of oil, gas, minerals,
hydrocarbons, or other similar types of material on or below the surface of the GC Property is
prohibited.
4.6 ANTENNAES, RADIO TOWERS, ETC. No commercial antennas, radio
towers, communications towers, or similar equipment or machinery shall be permanently
installed on the GC Property. Small, private communications antennas and satellite dishes for
the Golf Course or adjoining clubhouse and amenities of the Country Club or temporary
communications antennas and satellite dishes used in conjunction with a golf tournament or
other recreation or club event may be used on the GC Property.
4.7 HAZARDOUS MATERIALS. The use, treatment, permanent storage, disposal
or release of Hazardous Materials, which shall mean any "hazardous substance" as defined in 42
U.S.C. §9601(14) of the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended ( "CERCLA "); any "solid waste" as defined in 42 U.S.C. §6903(27) of
the Resource Conservation and Recovery Act ( "RCRA "); or any "pollutant" as defined in
Sections 376.031(16) and 376.301(36), Florida Statutes, shall be permitted only in accordance
with applicable federal, state or local laws and regulations. Any use or storage of Hazardous
Materials related to the maintenance and care of the Golf Course which may include pesticides,
herbicides, fertilizers, fuels, oils and lubricants will be done in accordance with applicable
federal, state and local laws and regulations. Otherwise, the use, treatment, permanent storage,
disposal or release of Hazardous Materials on, from, or under the GC Property is prohibited.
4.8 SUBDIVISION. The GC Property shall not be divided, partitioned, subdivided,
or de facto subdivided, whether by legal or physical process, into two or more parcels of land or
JAX \1789543_
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AGENDA ITEM # 8B
OCTOBER 14, 2013
partial or separate interest, except to the extent platted or subdivided as of the effective date of
this Easement or thereafter as approved by COAB. At all times, the GC Property shall be owned
and conveyed as a single unit that shall be subject to the terms of this Easement.
Notwithstanding this prohibition, Grantor may convey parcels smaller than the whole where such
conveyance is consistent with the Intent and Purpose of this Easement, including the adjustment
of boundaries or consolidation of parcels, and provided such conveyance meets the following
conditions: (a) the conveyance is executed in a deed and recorded pursuant to state conveyance
regulations; (b) the conveyance is approved by Grantee in writing; and (c) the conveyance is
subject to the terms and conditions of the Easement and specifically restricted from any uses
except as permitted in Article 4 of this Easement.
ARTICLE 5 RIGHTS & DUTIES OF GRANTOR & GRANTEE
5.1 GRANT IN PERPETUITY. By executing this Easement, Grantor grants and
conveys to Grantee an Easement over the GC Property in perpetuity, subject to the termination
provision set forth in Article 6 below. The rights and duties given herein are given solely and
exclusively to Grantee and its authorized successors or assigns, as set forth in Section 3.2 of this
Easement, and may not be exercised by any other party, entity, or person.
5.2 SUPERIOR TO ALL LIENS. Grantor warrants to Grantee that Grantor has
obtained and recorded in the public records of Duval County, Florida, the legally binding
subordination of any liens affecting the GC Property as of the date of this Easement. If any such
liens exist on the GC Property, Grantor will provide copies of signed subordination agreements
between Grantor and lien holder(s) to Grantee prior to the execution of this Easement.
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AGENDA ITEM # 8B
OCTOBER 14, 2013
5.3 RIGHTS OF GRANTOR. Grantor reserves unto itself, and its successors and
assigns, all rights accruing from its ownership of the GC Property, including the right to engage
in or permit or invite others to engage in all uses of the GC Property that are permitted herein
and are consistent with the Intent and Purpose of the Easement. Grantor further reserves unto
itself, and its successors and assigns, the exclusive rights: to control access to, from, and on the
GC Property; to charge membership, use, and access fees for use of any and all of the GC
Property by any and all persons; and to deny access to the GC Property to any and all persons,
subject to the limited inspection rights granted to the Grantee set forth in Section 5.5 below.
Grantor, its successors or assigns, shall have the right to proceed at law or in equity to enforce
the provisions of this Easement.
5.4 DUTIES & LIABILITIES OF GRANTOR. Subject to transfer and assignment
under Section 3.1 above, Grantor hereby agrees to bear all costs and liabilities related to the
operation, upkeep, and maintenance of the GC Property and the permitted uses thereon.
5.5 RIGHTS OF GRANTEE. To accomplish the purposes stated herein, Grantor
conveys the following rights to Grantee:
(a) INSPECTION RIGHTS. Grantee (using its employees and /or third
parties retained for such specific purposes) has the right to enter upon and inspect the GC
Property in a reasonable manner and at reasonable times, at least once annually, or make
an "emergency inspection" if Grantee reasonably believes that Grantor intends to, or is in
violation of the terms of this Easement, to determine if Grantor or its successors or
assigns are complying with the covenants and prohibitions contained in this Easement.
Grantee shall notify Grantor, in writing, of any intent to inspect at least thirty (30) days
JAX \1789543_78
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AGENDA ITEM 11 RB
OCTOBER 14, 2013
prior to the date of inspection pursuant to the Notice provisions set forth in Section 8.12
below, If any such inspection will materially interfere with the permitted uses of the GC
Property, Grantor may ask to reschedule the date of inspection to a date that is within
fourteen (14) days of the originally scheduled inspection. If Grantee determines that an
"emergency inspection" requires immediate entry onto the GC Property, to prevent,
terminate or mitigate a violation of this Easement, Grantee is not required to provide
prior written Notice to the Grantor but will make a reasonable attempt to notify Grantor
prior to such inspection, either verbally or in writing, and regardless of whether Grantee
is able to give Grantor prior notification, will provide Grantor with written notice
pursuant to the Notice provisions set forth in Section 8.12 below within forty -eight (48)
hours following the "emergency inspection;"." Grantee's right to inspect is subject
to the followingprovisions:
;ti 5; I-NO', 11 xtt
(i) HOLD HARMLESS. Grantee, to the fullest extent permitted by
law and subject, where applicable, to the limitations set forth in Section 768.28
Florida Statutes, agrees to hold harmless, defend at its own expense, and
indelnnif Grantor its officers em lo ees a 'outs and volunteers. a 'ainst an
and all liabilit claims losses dama
ex►enses includin_ reasonable
attorney's fees,_ arising out of injury (whether mental or corporeal) to persons or
the death of persons or damage to or destruction of property, arising* out of or
incidental to an Ins ection or Emer enc Inspection conducted b Grantee its
to ees a ents or third arties retained b Grantee whether due to or caused
by the negligent acts or omissions of the Grantor, excluding only the sole
negligence of Grantor: and
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AGEN0A rrEm # 8R
OOTOBER 14, 2013
(ii) INSURANCE. At all times during the term of this Easement
where the Grantee is either COAB or is another a *enc or subdivision of the State
of Florida Grantee shall maintain at its own cost and expense a valid oro. am of
insurance authorized b , Section 768.28 Florida Statutes. With res ect to
Grantee's insurance program, liabilities caused by the negligent acts or omissions
of the Grantee's em ees. or authorized aeents shall be subject to the limits of
Section 768,28, Florida Statutes. Grantee shall provide Grantor with a letter of
insurance upon request. Should Grantee transfer its rights under this Easement to
a party not subject to Section 768.28, Florida Statutes, that party shall maintain, at
is own cost and ex.ense the followin t es and amounts the fore oin_ limits
bein minimum re+uirements of insurance for the terms of this Easement. and
will furnish certificates confirming such coverage to Grantor:
Workers' Comtaensation
Employer's Liability
Commercial General Liability Aggregate
Each Occurrence
Statutory
$500,000
$2,000,000
$1,000,000
Automobile Liability (any auto= hired autos $1,000,000 Combined Single
and non -owned autos) Bodily Injury and Limit
Property Damage
Umbrella /Excess Insurance $2,000,000
(b) ENFORCEMENT. Grantee shall have the right to prevent and correct or
require correction of violations of the terms of this Easement. If Grantee determines that
a violation has occurred, Grantee shall notify Grantor in writing, pursuant to the Notice
provisions set forth in Section 832 below, of the nature of the alleged violation within
thirty (30) days of discovery by Grantee. Upon receipt of this notice, Grantor shall
JAX\1789543
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immediately cease the alleged violation and, if necessary, within thirty (30) days of
receipt of the notice either provide a written plan for restoration and remediation of the
GC Property in accordance with the plan, or provide written documentation that the
activity is permitted and is not a violation. Grantee's acceptance of Grantor's actions
under either of the previous options shall be within Grantee's sole discretion and shall be
confirmed by Grantee in writing within forty-five (45) days of receipt of Grantor's
response. If Grantor fails to cease the alleged violation and provide a timely response to
the notice of violation which is accepted by Grantee, Grantee may take legal action,
including seeking injunction, to stop the alleged violation and /or require restoration and
remediation. Grantor's remedies described in this section shall be cumulative and shall
be in addition to any and all remedies hereafter existing at law or in equity; and
(c) GRANTEE'S DISCRETION. Enforcement of the terms of this
Easement shall be at the sole discretion of Grantee, and failure of Grantee to discover a
violation or to take action shall not waive any of Grantee's rights, claims, or interests in
pursuing any such action up to one (1) year after the initial discovery of the violation by
Grantee.
5.6 DUTIES & LIABILITIES OF GRANTEE. Grantee hereby agrees that it is
bound by the terms of both this Easement and the Master Agreement and acknowledges its duties
and liabilities as set forth in the Easement and the Master Agreement.
5.7 COSTS OF ENFORCEMENT. Any and all costs incurred by either party in
enforcing the terms of the Easement against the other party, including without limitation, costs
and expenses of suit, attorneys' fees and any cost of restoration necessitated by a violation of the
JAXN1789543_78
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AGENDA ITEM # 8B
OCTOBER 14, 2013
terms of this Easement, shall be borne by the violating party. If the parties agree to mediation
then the cost of the mediator's fees will be borne equally by both parties.
ARTICLE 6 TERMINATION BY DEFAULT
6.1 TERMINATION BY DEFAULT. Grantor and Grantee have entered into the
Master Agreement. Consistent with the Intent and Purpose of this Easement, should Grantee
default under the terms of the Master Agreement this Easement shall automatically terminate.
Recordation of a notification of termination to Grantee by Grantor in the public records of Duval
County, Florida, shall serve as sufficient title evidence of the termination of this Easement
pursuant to this Article 6.
ARTICLE 7 ACTS BEYOND GRANTOR'S CONTROL
7.1 ADVERSE CONDITIONS/FORCE MAJEURE. "Force Majeure" means any
act or acts which are beyond the reasonable control of Grantor, including, but not limited to, acts
of God, fire, adverse weather conditions such as hurricanes and tornadoes, disease or pests which
destroy trees and plants, strike or other industrial disturbances (not due to breach of an applicable
collective bargaining agreement), war, riot, civil disobedience, insurrection, explosions, boycotts,
acts or refusals by any public authority, or orders of any court, or the inability to obtain
necessary materials supplies, labor or permits due to rules, regulations, orders, laws or
proclamations, either local, federal or state, civil or military, such as delay in the issuance of a
building or construction permit. Nothing contained in this Easement shall be construed to entitle
Grantee to bring an action against Grantor for any alleged violation of the Easement resulting
from causes beyond Grantor's control including adverse weather conditions and Force Majeure.
Additionally, nothing contained in this Easement shall be construed to entitle Grantee to bring an
action against Grantor related to any necessary action taken by Grantor under emergency
JAX \1789543_g8
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AGENDA ITEM # 8B
OCTOBER 14, 2013
AGENDA ITEM # 8B
OCTOBER 14, 2013
conditions to prevent, abate, or mitigate significant damage or injury to the GC Property,
adjoining properties, or to persons resulting from such conditions.
ARTICLE 8 MISCELLANEOUS
8.1 RECORDATION. Grantee shall record this Easement in timely fashion in the
public records of Duval County, Florida. Grantee shall pay all recording costs and taxes
necessary to record this Easement in the public records.
8.2 BINDING UPON DESIGNATED SUCCESSORS & ASSIGNS. The
covenants, terms, conditions and restrictions of this Easement shall be binding upon, and inure to
the benefit the Grantor's and Grantee's respective successors, transferees, assigns, trustees, and
legally assigned receivers.
8.3 CHANGE OF CIRCUMSTANCES. Grantor recognizes and acknowledges that
there is a loss of value and burden associated with and imposed by the execution of this
Easement. Grantor agrees that the loss of value and burden associated with and imposed by this
Easement shall not be used as justification or grounds for the termination or extinguishment of
this Easement. Grantor also agrees that it shall not use the inability to carry on any or all of the
permitted acts or uses, or the unprofitability of the permitted acts or uses, as justification or
grounds for the termination or extinguishment of this Easement.
8.4 COVENANTS RUNNING WITH THE LAND. This Easement shall be an
easement and covenant running with the GC Property in perpetuity, subject to the Termination
by Default provisions set forth in Article 6 above, and, subject to the provisions set forth in
Sections 8.8 and 8.9 below, shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and assigns.
JAx \1789543 78 -17-
AGENDA ITEM # 8B
OCTOBER 14, 2013
8.5 EASEMENT CORRECTION. Grantor and Grantee shall cooperate to correct
any mutually - acknowledged errors in this Easement and its exhibit, including typographical,
spelling and clerical errors. Any such corrections shall be by recorded written agreement signed
by both parties with all associated costs being paid equally by both parties.
8.6 ENTIRE AGREEMENT; AMENDMENT. This instrument and its exhibit
constitutes the entire Easement and supersedes all previous discussions, understandings and
agreements between Grantor and Grantee relating to the subject matter of this Easement. Except
as provided in the Automatic Termination provisions set forth in Article 6 above, Grantor may
not modify, amend, change, or revoke any part of this Easement without the prior written consent
of Grantee. Any modification, amendment, change or revocation must be consistent with the
Intent and Purpose of this Easement. Any modification, amendment, change or revocation shall
be recorded in timely fashion in the public records of Duval County, Florida, at Grantor's
expense.
8.7 SEVERABILITY. If any part of this Easement is held by a court of competent
jurisdiction to be invalid, illegal or unenforceable, such invalid, illegal or unenforceable part
shall be deemed severable, and the remaining parts of this Easement shall continue in full force
and effect provided that the rights and obligations of Grantor and Grantee are not materially
prejudiced and the Intent and Purpose of this Easement can continue to be effected.
8.8 NO THIRD PARTY BENEFICIARIES. This Easement is for the sole and
exclusive benefit of the parties hereto and their respective successors and assigns. There shall be
no third party beneficiaries to the Easement, and nothing in this Easement or the exhibit shall be
construed to grant any other person any right, remedy, or claim under or with respect to this
JAx \1789543_48
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AGENDA ITEM # 8B
OCTOBER 14, 2013
Easement or any provision hereof. This Easement does not grant any rights or remedies to the
general public, to individual residents or citizens of the City of Atlantic Beach, or to owners of
properties adjoining or with views of the GC Property.
8.9 NO PUBLIC ACCESS. No right of access to any portion of the GC Property by
the general public or by the citizens of Atlantic Beach is conveyed by this Easement. However,
if Grantee ever comes to possess fee title of the GC Property and public access is permitted by
Grantee, appropriate buffers, fences and screening shall be permitted to protect and screen the
residential uses adjacent to the GC Property.
8.10 APPLICABLE LAW AND VENUE. This Easement and the provisions
contained herein shall be governed by and construed in accordance with the laws of the State of
Florida. In any action, in equity or law, with respect to the enforcement or interpretation of this
Easement, venue shall be in Duval County, Florida.
8.11 LIBERAL CONSTRUCTION. The provisions of this Easement shall be
liberally construed in favor of the grant to affect the stated Intent and Purpose of this Easement.
If any provision in this Easement is found to be ambiguous, an interpretation consistent with the
Intent and Purpose of this Easement that would render the provision valid shall be favored over
any interpretation that would render it invalid.
8.12 NOTICES. 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 designated successor or assign:
JAX\1789543
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ATTLANTICATLANTIC BEACH PARTNERS, LLC: Attn: Rick Wood
414 Old Hard Road #502
Fleming Island, FL 32003
CITY OF ATLANTIC BEACH:
Attn: City Manager
The City of Atlantic Beach
800 Seminole Road
Atlantic Beach, Florida 32233
AGENDA ITEM # 811
OCTOBER 4, 2013
IN WITNESS WHEREOF, Grantor has executed this Easement on the day and year
first above written.
WITNESSES,
Signed, sealed and delivered
FIOridaATLANTIC BEACH PARTNERS, LLC,
in our presence as witnesses:
Limited Liability Company,
GRANTOR:
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a Florida
nature:
By:
: THE WOOD DEVELOPMENT COMPANY Printed
Name:
Name: _ OF
JACKSONVILLE,
Si nature:
Printed Name:
its Managing Member
By:_
James Ricky Wood, President
STATf OF E QI
,COT. JNI[Y OF i
Sworn to and subscribed before me this day of _ , 2013, by
James Rick Wood, as President of The Wood Develo men Com i an of Jacksonville
Managing Member of Atlantic Beach Partners, LLC. He (check one) 0 is personally known to
me or ❑ has proved to me on basis of satisfactory evidence to be the person who executed this
instrument.
JAXSI789543 3
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AGENDA ITEM # 8B
OCrof Etc 145 2013
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Signature:
12Hiitccl 1\41114-e:
COUNTY OFD fM
Notary Public State of Florida
Name:
M Commission Ex +ires:
M Commission Number is:
Its:
individually, and as the
of
of
I JAX41789543_41
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JAX \1789543_ ?8
EXHIBIT "A"
Golf Course Property Description
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AGENDA ITEM # 8B
OCTOBER 14, 2013
Summary Report
September 17, 2013 12:15 PM
AGENDA ITEM ti SB
OCTOBER 14, 2013
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