Resolution No. 18-23RESOLUTION NO. 18-23
A RESOLUTION OF THE CITY OF ATLANTIC BEACH APPROVING THE
AGREEMENT FOR SALE AND PURCHASE OF PROPERTY WITH SELVA
PRESERVE, LLC FOR THE PURCHASE OF CERTAIN LANDS AND
GREENWAY EASEMENT LYING WITHIN THE SELVA PRESERVE
SUBDIVISION FOR $1.35 MILLION DOLLARS, SUBJECT TO FINANCING TO
BE OBTAINED AND APPROVED BY THE CITY COMMISSION AND
SATISFACTORY TO THE CITY IN ITS SOLE DISCRETION AND PURSUANT
TO THE TERMS AND CONDITIONS SET FORTH IN SAID AGREEMENT;
AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT, THE
GREENWAY EASEMENT ATTACHED THERETO, AND SUCH OTHER
CLOSING DOCUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE
TRANSACTION AS CONTEMPLATED BY SAID AGREEMENT;
AUTHORIZING THE CITY MANAGER TO EXECUTE SUCH CONTRACTS
AND PURCHASE ORDERS IN ACCORDANCE WITH AND AS NECESSARY
TO EFFECTUATE THE PROVISIONS OF THE AGREEMENT; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City approved that certain Plat for the subdivision of Selva Preserve, as now
recorded at Plat Book 71, pages 63-65 in the public records of Duval County, Florida; and
WHEREAS, Selva Preserve, LLC, the owners of the Selva Preserve subdivision, have offered to
sell a portion of the land and a greenway easement located within the said Selva Preserve subdivision to
the City for $1.35 Million Dollars, subject to the City obtaining financing satisfactory to the City in its
sole discretion, and pursuant to the terms and conditions set forth in the Agreement for Sale and
Purchase of Property, attached hereto as Exhibit A and made a part hereof (the "Agreement"); and
WHEREAS, the City desires to purchase the land and greenway easement for conservation and
passive recreation purposes, subject to obtaining financing satisfactory to the City in its sole discretion
and pursuant to the terms and conditions contained in the Agreement.
NOW THEREFORE, be it resolved by the City Commission of the City of Atlantic Beach as
follows:
SECTION 1. The City Commission hereby approves the Agreement with Selva Preserve, LLC
for the purchase of land and a greenway easement to be used for conservation and passive recreation
purposes for $1.35 Million Dollars, subject to financing to be obtained and approved by the City
Commission and satisfactory to the City in its sole discretion, and pursuant to the terms and conditions
set forth in the Agreement.
SECTION 2. The Mayor is hereby authorized to execute the Agreement, Greenway Easement
Agreement attached thereto, and such other closing documents as may be necessary to effectuate the
transaction as contemplated by the Agreement.
SECTION 3. The City Manager is hereby authorized to execute such contracts and purchase
order(s) in accordance with and as necessary to effectuate the provisions of said Agreement.
00995863-1
SECTION 4. This Resolution shall take effect immediately upon its passage and adoption.
PASSED AND ADOPTED by the City of Atlantic Beach, this 1 �fhday of June, 2018.
Ellen Glasser, Mayor
Attest:
Donna L. Bartle, City CIerk
Approved as to fo and correctness:
Br nna . Durde City Attorney
00995863-1
EXHIBIT A
AGREEMENT FOR SALE
AND PURCHASE OF PROPERTY
THIS AGREEMENT FOR SALE AND PURCHASE OF PROPERTY ("Agreement") is
made by and between SELVA PRESERVE LLC, a Florida Limited Liability Company ("Seller")
and THE CITY OF ATLANTIC BEACH, a Florida Municipality ("Buyer") effective as of the
"Effective Date" (as hereinafter defined).
OUTLINE OF AGREEMENT
Seller is the owner of property in the City of Atlantic Beach, Duval County, Florida
commonly referred to as -Selva Preserve, consisting of approximately 7.21 acres (the "Overall
Property"). The Overall Property was recently subdivided as described on the Selva Preserve Plat,
recorded in Plat Book 71, Page 63, Public Records of Duval County, Florida (the "Plat' ), attached
hereto as Exhibit "A". The Plat includes eleven (11) lots which are numbered sequentially 1
through 11 (the "Lots"). Buyer desires to purchase a portion of the Overall Property, consisting
of all the land south of Lot 7 per the Plat ("Subject Property").
A precise legal description of the Subject Property, in conjunction with the "Survey" described in
Section 2.02 below, is attached as Exhibit `B", which legal description shall control for the purpose
of this Agreement. Five (5) lots fiom the Plat (Lot 7 though Lot 11) will not be purchased by the
Buyer. and are intended to be developed by the Seller (the "Retained Lots"). The Retained Lots
will be subject to a permit modification by the St. Johns River Water Management District to
include an easdment allowing for a "Greenway" along the eastern portion of the Retained Lots for
purposes of using, constructing, maintaining, landscaping, lighting, preserving, and repairing uses,
such as but not limited to, trails, nature path, benches, boardwalk, pedestrian pathway, walkway,
or greenway (the "Greenway Easement"). The agreed Greenway Easement Agreement between
the parties is attached as Exhibit "C". Buyer is willing to purchase the Subject Property for
conservation and park purposes. Upon the City Commission's approval of this Purchase
Agreement, Easement Agreement and a revised Plat, in accordance with the timeframes set forth
herein, the transaction will be closed and the deed, Greenway Easement Agreement and Plat for
the Retained Land will be recorded.
Seller agrees to sell, subject to Plat approval on the Retained Lots no later than June 11,
2018, and convey to Buyer and Buyer agrees to purchase from Seller, subject to the terms and
conditions set forth below, the Subject Property, together with the Greenway Easement.
SECTION I
AGREEMENT TO SELL; PURCHASE PRICE
1.01 . Purchase Price. The total purchase price for the Subject Property and Greenway
Easement shall be One Million Three Hundred Fifty Thousand and No/100 Dollars
($1,350,000.00).
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The Purchase Price to be paid by Buyer is payable as follows:
(a) Earnest money to be deposited within
three (3) days after the Effective Date
with First American Title Insurance Company
as Escrow Agent ("Deposit") $10,000.00
(b) Additional payment due at closing (or
greater or lesser amount as necessary
to complete payment of the Purchase Price
after costs, credits and adjustments) $1,340,000.00
(c) Purchase Price $1.350.000.00
1.03 Deposits. The Deposit shall be fully refundable to Buyer prior to the expiration of
the Feasibility Period. Upon expiration of the Feasibility Period (to include any mutually agreeable
extension periods), in the event Buyer has not terminated this Agreement as permitted herein, the
Deposit shall be non-refundable except upon the default of Seller hereunder or the inability of
Buyer to obtain financing (as hereafter defined) or as provided in this Agreement.
SECTION II
SURVEY AND TITLE COMMITMENT; PERMITTED EXCEPTIONS
2.01 Preliminary Title Report. Within twenty (20) days after the Effective Date, Buyer,
at Buyer's sole cost and expense, shall obtain a title insurance commitment (the "Title
Commitment") covering the Subject Property and the Greenway Easement, to issue an ALTA
Owner's Title Insurance Policy, upon the recording of the deed and Greenway Easement
Agreement herein provided for, in the amount of the Purchase Price, naming Buyer as the proposed
insured (the "Title Commitment"). The Title Commitment shall show good, marketable and
insurable fee simple title to the Subject Property vested in Seller, subject only to liens,
encumbrances, exceptions and qualifications which: (i) will not render title unmarketable
according to applicable Florida law; (ii) will not, in Buyer's reasonable judgment, interfere with
or impair Buyer's intended use of the Subject Property and Greenway Easement or are otherwise
acceptable to Buyer; (iii) are permitted by the provisions of this Agreement; or (iv) are capable of
discharge or release and are actually discharged or released by Seller at or before Closing. Copies
of all exceptions to title (commonly identified as Schedule B -II exceptions) shall be delivered with
the Title Commitment. Buyer may obtain at Buyer's sole cost and expense, for itself and its lender,
a simultaneous issue title insurance commitment for any loan obtained by Buyer to finance its
acquisition of the Subject Property and the Greenway Easement, together with such endorsements
as may be reasonably requested by Buyer's lender.
Seller acknowledges that upon the execution of this Agreement by -both parties, Buyer will
begin its feasibility evaluation of the Subject Property and the Greenway Easement and Buyer is
solely responsible for the incurred expenses and costs related thereto. Within five (5) days of the
date this Agreement is approved by the Atlantic Beach City Commission, Buyer shall provide
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Seller with a list of items to be produced as part of the Feasibility Period. Seller shall have ten (10)
days to produce such items, if available. Seller is not obligated to provide any documents that are
not in Seller's possession.
2.02 Survey. Buyer, at Buyer's sole cost and expense, may obtain a new staked boundary
survey ("Survey") of the Subject Property, Greenway Easement, or any portions thereof prepared
by a duly licensed land surveyor. The Survey may:
(a) Contain the surveyor's certification that the survey meets all the technical
standards of Florida Administrative Code Rule 61G17-6 and depicts all
easements shown on the title commitment;
(b) Show all flood plain and flood hazard areas;
(c) Show topographic information;
(d) Such other information as Buyer may wish to have included; and
(e) State that it is certified to Seller, Buyer, Buyer's lender and the Title
Company.
2.03 Objections. Buyer shall have ten (10) days from the receipt of the later of (i) the
original and signed Title Commitment. and legible copies of all recorded documents referenced
therein, and (ii) the Survey (provided the Survey is timely obtained by Buyer) in which to review
the Title Commitment and the Survey and notify Seller of any matters which are not acceptable to
Buyer (each a "Defect" and collectively, the "Defects"). Seller shall use reasonable effort to cure
such objections and defects, and provide Buyer notice thereof within ten (10) days after Seller's
receipt of Buyer's notice ("Cure Period"). If Seller does not cure defects within the Cure Period,
Seller shall notify Buyer in writing ("Seller's Notice) of any Buyer's objections and/or Defects
which Seller is unable to satisfy. Within ten (10) days following receipt of Seller's Notice, Buyer
shall elect either to (i) terminate this Agreement, and neither party shall have any further rights,
duties, or obligations hereunder, or (ii) purchase the Subject Property subject to the Defects and
the objections, in which event those matters shall be deemed Permitted Exception as defined
herein.
2.04 Permitted Exceptions. The Subject Property and the Greenway Easement shall be
conveyed to Buyer subject to no liens, charges, encumbrances, exceptions, easements, restrictions,
agreements or reservations of any kind or character, other than those acceptable to Buyer under
Section 2.01. Any matters set forth in the Title Commitment or Survey to which Buyer does not
timely object shall be referred to collectively herein as the "Permitted Exceptions".
SECTION III
PROVISIONS WITH RESPECT TO CLOSING
3.01 Closing Dates. The consummation of the transaction contemplated by this
Agreement ("Closing") shall take place no later than sixty (60) days after approval of this
Agreement by the City of Atlantic Beach Commission including satisfaction of the conditions
precedent described in Section 6 below, but in no event after August 10, 2018 unless mutually
agreed between the parties. Buyer may select an earlier date for Closing upon fifteen (15) days
prior written notice to Seller.
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3.02 Seller's Obligation at Closing. At Closing, Seller shall:
(a) Execute, acknowledge and deliver to Buyer a Special Warranty Deed
conveying the Subject Property to Buyer subject only to the Permitted Exceptions and current
taxes. The deed shall be in recordable form and the legal description of the Subject Property
contained in such deed shall be identical to the legal description of the Subject Property contained
in the Plat and the Title Commitment, unless otherwise agreed by the parties.
(b) Execute, acknowledge and deliver to Buyer the Greenway Easement;
(c) Deliver to Buyer and the Title Company evidence satisfactory to them of
Seller's authority to execute and deliver the documents reasonably necessary to consummate this
transaction.
(d) Deliver to Buyer a declaration in recordable form including covenants,
conditions, and restrictions set forth in Section 6.05(d)(iv) of this Agreement.
3.03 Buyer's Obligations at Closing. Subject to the terms of this Agreement and
contemporaneously with the performance by Seller of its obligations under this Agreement, Buyer
shall deliver to Seller cash or a bank or cashier's check in an amount equal to the Purchase Price
after due credit for the Deposit and after credits and prorations.
(a) Furnish, at the sole cost and expense of Buyer, the "Title Policy" based on
the Title Commitment.
(b) Arrange for and secure financing of the transaction.
3.04 Closing Costs.
(a) Seller shall pay the following costs and expenses in connection with the
Closing:
(i) All documentary stamps which are required to be affixed to the
Deed;
(ii) Satisfaction of any mortgages or liens affecting the Subject Property
and/or the Greenway Easement;
(iii) Seller's attorneys' fees.
(b) Buyer shall pay the following costs and expenses in connection with the
Closing:
(i) The search fee and premium payable for the Title Commitment and
the Title policy;
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(ii) All recording fees;
(iii) Preparation of all closing documents including the legal description
of the Greenway Easement;
(iv) Stamps on note;
(v) All documentary stamps which are required to be affixed to the
Greenway Easement;
(vi) All fees associated with the financing of the transaction including
related attorney's fees;
(vii) Appraisals;
(viii) Survey; and
(ix) Buyer's attorneys' fees.
3.05 Proration of Taxes. Taxes for the year of the Closing shall be prorated to the date
of Closing using the previous year's tax bill or the latest available information from the Office of
the Property Appraiser for the county in which the Property is located, whichever is more accurate.
The parties agree to re -prorate the taxes after the final tax bill is issued by the Tax Collector's
office.
3.06 Possession. Exclusive possession of the Subject Property and the Greenway
Easement shall be delivered to Buyer at Closing.
3.07 Location. The Closing shall be held at such location in Duval County, Florida, as
shall be designated by Buyer on the date of Closing, or at such other place as Buyer and Seller
shall mutually select.
SECTION IV
AFFIRMATIVE COVENANTS OF SELLER
4.01 Inspections and Studies. Subject to advance written notice of three (3) business
days, Buyer and its agent and representatives shall be entitled to enter upon the Subject Property
and the Greenway Easement area for inspection, soil tests, engineering, examination and land use
planning, including Phase I and Phase II environmental reviews, prior to the Closing. Buyer hereby
holds Seller harmless from any damages or liabilities arising from injuries caused by Buyer, its
agents or representatives, in pursuing the activities permitted under this Section, subject to the
limitations of Section 768.28, F.S.
4.02 Further Assurances. In addition to other obligations required to be performed under
this Agreement by Seller at the Closing, Seller agrees to execute, acknowledge and/or deliver
subsequent to the Closing such other instruments, documents and other materials as Buyer may
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reasonably request in order to effectuate the consummation of the transaction contemplated in this
Agreement and to vest title to the Subject Property and the Greenway Easement in Buyer.
SECTION V
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO PROPERTY
Seller represents and warrants to Buyer as of the date hereof and as of Closing as follows:
5.01 Marketable Title. Seller has good, marketable and insurable title to the Subject
Property and the Greenway Easement,,fiee and clear of all mortgages, liens, encumbrances, leases,
tenancies, security interests, covenants, conditions, restrictions, rights-of-way, easements,
reservations, judgments and other matters affecting title, except the Permitted Exceptions outlined
in Section 2.03.
5.02 Adverse Information. Seller has no information or knowledge of any change
contemplated in any applicable laws, ordinances or regulations or any judicial or administrative
action or any action by adjacent landowners or natural or artificial conditions upon the Subject
Property and the Greenway Easement which would prevent, limit or impede Buyer's contemplated
use of the Subject Property and the Greenway Easement.
5.03 Compliance with Laws. To Seller's knowledge, Seller has complied with all
applicable laws ordinances, regulations, statutes, rules and restrictions affecting the Subject
Property and the Greenway Easement. Performance of this Agreement will not result in any breach
of or constitute any default under or result in the imposition of any lien or encumbrance upon the
Subject Property and the Greenway Easement under any agreement or other instrument to which
Seller is a party or by which Seller or the Subject Property and the Greenway Easement might be
bound.
5.04 Pending Litigation. There are no legal actions suits or other legal or administrative
proceedings pending or, to Seller's knowledge, threatened affecting the Subject Property and the
Greenway Easement or any portion of the Subject Property and the Greenway Easement nor has
Seller knowledge that any such action is contemplated.
5.05 No Special Assessments. No portion of the Subject Property or the Greenway
Easement is affected by any special assessments whether or not constituting a lien thereon.
5.06 Authorization. The person executing this Agreement on behalf of Seller has the
authority to do so and all corporate action necessary to bind the Seller to the terms of this
Agreement has been obtained or will be obtained as outlined in Section 5.01 above.
5.07 Survival of Representations and Warranties. The representations and warranties
set forth in this Article V shall be continuing and shall be tiue and correct as of the Closing date.
All of such representations and warranties shall survive the Closing and shall not be affected by
any investigative action by any party to this Agreement.
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SECTION VI
CONDITIONS TO CLOSING
6.01 Notice and Approval by the City Commission of the City of Atlantic Beach. Buyer
has provided all necessary public notice required and as of May 4, 2018 the appraisals performed
on the Subject Property became available to the public. This Agreement shall be submitted for
approval to the Atlantic Beach City Commission at the June 11, 2018 Commission meeting. In the
event that this Agreement is not approved on June 11, 2018, or is not submitted for approval on
June 11, 2018, the Seller may elect to extend the timelines described herein or notify Buyer that
Seller has withdrawn its offer to -sell.
6.02 Examination of Property. Buyer shall have a period of time commencing on the
date of City Commission approval as described in section 6.01 and expiring forty-five (45) days
thereafter ("Feasibility Period") in which to confirm the condition of the Subject Property and the
Greenway Easement, review the contents of any documents relating thereto and to conduct any
studies and inspections it deems necessary. During such period and thereafter as long as this
Agreement shall remain in force, Buyer and its agents will be provided access to the Subject
Property and the Greenway Easement to make soil tests, engineering studies and feasibility studies
as it shall determine to be advisable, provided that Buyer shall hold Seller harmless from any
resulting damages to the Subject Property and the Greenway Easement subject to the limitations
set forth in Section 768.28, F. S. If, within the Feasibility Period, Buyer determines that it does not
wish to proceed with the purchase contemplated herein for any reason, Buyer may terminate this
Agreement by written notice to Seller, whereupon all monies paid to Seller or Escrow Agent herein
shall be returned to Buyer and all obligations of each party to the other shall cease. If Buyer shall
not have notified Seller of its election not to proceed hereunder by the end of the Feasibility Period,
the contingency provided in this paragraph shall be deemed satisfied and the parties shall proceed
to Closing.
6.03 Conditions to Buyer's Obligations. The obligation of Buyer under this Agreement
to consummate the Closing is subject to the satisfaction, as of the Closing, of each of the following
conditions (any of which may be waived in whole or in part in writing by Buyer at or prior to the
Closing):
(a) The representations and warranties of Seller set forth in this Agreement
shall be hue as of the Closing date.
(b) Seller shall have performed, observed and complied with all of the
covenants, agreements and conditions required by this Agreement to be performed, observed and
complied with by Seller as of the Closing.
(c) Buyer shall have obtained financing satisfactory to Buyer in its sole
discretion.
(d) Conditions required of the Buyer under the Easement described in Exhibit
"C" and described in Section 6.05(d) of this Agreement.
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6.04 Due Diligence Material. In the event this Agreement is terminated by Buyer other
than for reason of Seller's default or in the event Seller shall terminate this Agreement as provided
in Section 7.03 below, then Buyer agrees to provide Seller with copies of all due diligence material
obtained or created by Buyer.
6.05 Conditions to Seller's Obligations. The obligation of Seller under this Agreement
to consummate the Closing is subject to the satisfaction, as of the Closing, of each of the following
conditions (any of which may be waived in whole or in part in writing by Seller at or prior to the
Closing):
(a) Buyer shall have performed, observed and complied with all of the
covenants, agreements and conditions required by this Agreement to be
performed, observed and complied with by Seller as of the Closing.
(b) At the request of the Seller if needed to develop the Retained Lots, Buyer
shall execute a utility easement in favor of the Seller encumbering a portion
of the Subject Property, which shall be mutually agreeable to both parties.
This condition shall survive closing.
(c) Contemporaneously with the submittal of this Agreement for approval to
the City of Atlantic Beach Commission, Seller will submit for approval, a
re -plat (the "Post Transaction Plat") representing the Seller's subdivided
Retained Lots. Closing herein is contingent on Buyer's conditional approval
of the Post Transaction Plat (Subject to and conditioned on closing of the
transaction herein). In the event Closing does not occur, approval of the
conditional Post Transaction Plat shall be null and void and shall not be
recorded and the Plat recorded in Plat Book 71, Page 63, Public Records of
Duval County, Florida shall remain in full force and effect.
(d) The Post Transaction Plat shall contain or allow for the following:
(i) Seller shall be allowed to meet all City of Atlantic Beach mitigation
requirements with respect to the Retained Property using mitigation
bank credits outside the City of Atlantic Beach.
(ii) Seller agrees that all wetland areas located east of the wetland line
as shown on the Post Transaction Plat shall be kept in their natural
state with the exception that dead or downed trees or vegetation may
be removed pursuant to the applicable regulations.
(iii) Seller agrees that there shall be no filling of the wetlands east of the
wetland line as shown on the Plat and the Post Transaction Plat.
(iv) That the wetland requirements in this section 6.05(d) applicable to
the Retained Lots shall be contained in a declaration of deed
restrictions to be recorded in the public records of Duval County,
with a copy to the City of Atlantic Beach. Said declaration shall
further provide that such wetland area restrictions shall be
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enforceable by the City of Atlantic Beach. No changes shall be
authorized to these wetland area restrictions without the prior
written consent of the City of Atlantic Beach.
(v) The Post Transaction Plat shall provide for and include the forty (40)
foot wide Greenway Easement measured from the top of bank at
Sherman Canal, as shown Exhibit B and as described in the draft
Greenway Easement in Exhibit C. No additional buffer along
Sherman Canal shall be required.
(vi) The Post Transaction Plat shall allow vehicular access from
Parkside Drive to the Retained Lots.
(vii) As to the Greenway Easement as shown Exhibit B and as described
in Exhibit C, Buyer shall be responsible for maintaining the
Greenway Easement; Buyer shall, with timing at the sole election of
the Seller, its assigns, or the Homeowners Association created by
the Seller with respect to the Retained Lots ("HOA"), pay for the
cost and installation of a five (5) foot aluminum fence with one
locking gate along the western border of the Greenway Easement,
no later than at the time of building the "Greenway". It is the intent
of the parties that the fencing be installed at the time of the
development of the Greenway, unless exercised early; and Buyer
will indemnify Seller, the HOA and individual lot owners fiom any
third party claims or liability as a result of claims arising from the
use of the Greenway Easement, subject to the limitations of
sovereign immunity pursuant to Section 768.28, F.S.
SECTION VII
PROVISIONS WITH RESPECT TO
FAILURE OF TITLE, DEFAULT AND SECURITY DEPOSIT
7.01 Failure of Title. In the event the title commitment should show that Seller is unable
to convey title to the Subject Property or any portion of the Subject Property or the Greenway
Easement on the Closing date in accordance with the provisions of this Agreement, the provisions
of Section 2.01 shall govern.
7.02 Default by Seller. If Seller fails to consummate the transaction contemplated in
this Agreement for any reason, except Buyer's default, Buyer shall have the right to either (a) a
return forthwith of the Deposit held by Seller or any Escrow Agent, and upon the return, this
Agreement shall terminate and become void and unenforceable.
7.03 Default by Buyer. If Buyer breaches this Agreement, Seller may retain the Deposit
as agreed upon as liquidated damages, in which case this Agreement shall terminate and become
void and unenforceable.
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7.04 Attorneys' Fees, Etc. In connection with any litigation arising out of this
Agreement, the prevailing party shall be entitled to recover all reasonable costs, charges and
expenses, including reasonable attorneys' fees, incurred in connection with such litigation.
SECTION VIII
BROKERAGE COMMISSIONS
8.01 Brokerage Commissions. Each party represents to the other that no brokers have
been involved in this transaction. Seller and Buyer agree to indemnify and hold each other
harmless from any and all such claims or demands with respect to any brokerage fees, agents,
commissions or other compensation asserted by any person, firm or corporation in connection with
the sale contemplated by this Agreement.
SECTION IX
OTHER CONTRACTUAL PROVISIONS
9.01 Assignability. The parties shall not have the right to assign this Agreement and its
respective rights under this Agreement, without the prior written consent of the other party, which
shall not be unreasonably withheld.
9.02 Notices. Any notice to be given to either party in connection with this Agreement
must be in writing and given by (i) hand -delivery, (ii) United States Certified Mail, Return Receipt
Requested, (iii) recognized overnight delivery service, or (iv) facsimile or electronic email. Such
notice shall be deemed to have been given and received when a certified letter containing such
notice, properly addressed with postage prepaid is deposited in the United States mail or, if hand -
delivered or sent by overnight delivery service or electronic email, when actually received. Such
notices shall be given to the parties at the following addresses:
To Buyer: City of Atlantic Beach
Attn: Joe Gerrity, City Manager
800 Seminole Road
Atlantic Beach, Florida 32233
Telephone: 904-247-5806
Facsimile: 904-247-5805
Email: jgerrity@coab.us
With copy to: Lewis, Longman & Walker, P.A.
245 Riverside Avenue, Suite 150
Jacksonville, FL 32202
Telephone: 904-353-6410
Facsimile: 904-353-7619
Email: bdurden@llw-law.com
With copy to: Holland & Knight LLP
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50 North Laura Street,Suite 3900
Jacksonville, FL 32202 1
Telephone: 904-353-3200
Facsimile: 904 -
Email: Missy.Turra@hklaw.com
To Seller: Selva Preserve, LLC
Attn: Laura Ferrante
248 Levy Road
Atlantic Beach, Florida 32233
Telephone: 904-333-5944
Facsimile: 904-899-6219
Email: lauraferrante@aol.com
To Escrow Agent: First American Title Insurance Company
3563 Phillips Hwy
Jacksonville, FL 32207
Telephone: 904-858-9200
Facsimile:
Email:
Either party may, at any time by giving five (5) days written notice to the other party,
designate any other address to which such notice shall be given and other parties to whom copies
of all notices shall be sent.
9.03 Entire Agreement; Modification. This Agreement contains the entire agreement
between the parties. All prior agreements, understandings, representations and statements, oral or
written, are merged into this Agreement. This Agreement cannot be modified except by an
instrument in writing signed by the parties hereto.
9.04 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
9.05 Headings. Descriptive headings are for convenience only and shall not control or
affect the meaning or construction of any provision of this Agreement.
9.06 BindingEffect. ffect. The term "Buyer" shall include Buyer's successors and assigns.
The term "Seller" shall include Seller's successors and assigns. No assignment shall be made
except in accordance with the provisions of Section 9.01.
9.07 Counterparts. This Agreement may be executed in several counterparts, each
constituting a duplicate original. All such counterparts shall constitute one and the same
agreement.
9.08 Interpretation. Whenever the context of this Agreement shall so require, the
singular shall include the plural, the male gender shall include the female gender and the neuter
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and vice versa. This Agreement was drafted through the efforts of both parties and shall not be
construed in favor of or against either party.
9.09 Severability. If any provision contained in this Agreement shall be held invalid,
illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not
affect any other provision. This Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained in this Agreement.
9.10 Recording. Both parties agree that this Agreement shall not be recorded.
9.11 "Effective Date" or the "date hereof' shall be the date on which this Agreement is
executed by Buyer.
9.12 Dates. If any date by which any right, option, or election provided under this
Agreement must be exercised or by which any acts or payments required hereunder must be
performed or paid, or by which the Closing must be held falls on an official United States holiday
or a Saturday or Sunday, or a date which banks are not open in the State of Florida, the date shall
be automatically extended to the next regularly scheduled business day after such date.
9.13 Time of Essence. Time is of the essence of this Agreement.
9.14 Escrow Agent. In the event of a dispute or if in doubt as to Escrow Agent's duties
or liabilities under the provisions of this Agreement, Escrow Agent may, at Escrow Agent's option,
either (a) continue to hold the subject matter of the escrow until the parties mutually agree as to its
disbursement or until a judgment of a court of competent jurisdiction shall determine the rights of
the parties, or (b) Escrow Agent may inteiplead the funds into the registry of the Clerk of the
Circuit Court having jurisdiction of the dispute. Upon notifying all parties concerned of such
action, Escrow Agent shall be released from any further or continuing liability with respect to the
disposition of the subject matter of the escrow. In such event Escrow Agent will be entitled to
reimbursement to the extent of all costs and expenses reasonably incurred to obtain an order of
interpleader, including reasonable attorneys fees which may be secured by a lien upon the funds
deposited with the court. Escrow Agent shall exercise ordinary care with respect to the custody
and delivery of the subject matter of the escrow and any other duties of Escrow Agent under this
Agreement. Escrow Agent will not be liable for any act or omission that is undertaken in good
faith and with ordinary care. Notwithstanding the Escrow Agent's selection or acquiescence in
the selection of the financial institution at which the escrow account is maintained, Escrow Agent
shall not be responsible or liable for: (a) the rate of interest and any fluctuation in the rate of interest
accruing on the Deposit or other funds deposited; (b) any failure on the part of the financial
institution at which the account is maintained; (c) the unavailability of Federal Deposit Insurance
Corporation ("FDIC") insurance on all or any portion of the Deposit; (d) any inability or failure of
said financial institution to deliver the Deposit or any portion thereof when required by this
Agreement; or (e) any matters beyond the direct and exclusive control of Escrow Agent. By
execution of this Agreement, the parties acknowledge that they are aware that the FDIC coverage
applies only to a cumulative maximum amount of $100,000 for each individual depositor for all
of depositor's accounts at the same, or related, institution. The Escrow Agent shall not be
responsible for any loss, diminution in value or failure to achieve a greater profit as a result of the
12
#578132400
investment of the Deposit. Escrow Agent is not responsible for maintaining the value of any
investment or providing investment counseling.
9.15 Radon Gas. Pursuant to Section 404.056(8), Florida Statutes, the following
notification regarding radon gas is hereby made, and all parties executing this Agreement
acknowledge receipt of this notification: Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities, may present health risks to persons who
are exposed to it over time. Levels of radon that exceed Federal and State guidelines have been
found in buildings in Florida. Additional information regarding radon and radon testing may be
obtained from your county public health unit. Seller represents that it has received no notice and
is not otherwise aware of the presence of radon gas at the Subject Property or the Greenway
Easement in excess of applicable governmental limitations.
SECTION X
POST CLOSING OBLIGATIONS
10.01 Permits. The Seller will request a modification of the ACOE and SJRWNID
permits to allow for the development of the Retained Lots only as well as for the Greenway
Easement, post closing. In the event additional mitigation is required by State or Federal permitting
agencies to allow for the Greenway Easement on the Retained Lots, the City shall be responsible
for the cost of the additional mitigation for the Greenway Easement. Buyer shall have no other
obligations, duties or responsibilities with respect to any permitted activity provided for in any
permit on the Retained Lots, the Subject Property or the Greenway Easement prior to or after
modification.
10.02 Greenway_ permitting. The Buyer is solely responsible for any permitting
requirements fiom any permitting agency which may be required for the Greenway Easement on
the Subject Property.
10.03 Survival. The parties' rights and obligations under this Agreement will survive the
termination of this Agreement..
13
#57813240_v7
Date.
IN WITNESS WHEREOF, the parties have :executed this Agreement as of the Effective
SELLER:
SELVA PRESERVE, LLC
a Florida jhihpd Liability g
BUYER:
CITY OF ATLANTIC BEACH
a Florida Munici ality
By: l
Name: Ellen Glasser
Title: Mayor
Date: Cv I !
ATTEST %�
By: Waly'W4 Z A
Name: Donna Bartle
Title: City Clerk
The undersigned agrees to serve as escrow agent under this Agreement and to perform in
accordance with its terms.
ESCROW AGENT:
FIRST AMERICAN TITLE INSURANCE CO.
By:
Name:
Title:
14
#5781.3240V7
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EXHIBIT "C"
GREENWAY EASEMENT
THIS INSTRUMENT PREPARED BY:
Melissa S. Turra, Esq.
Holland & Knight LLP
50 N. Laura St., Suite 3900
Jacksonville, Florida 32202
File No. 57479.48
GREENWAY EASEMENT AGREEMENT
THIS GREENWAY EASEMENT AGREEMENT (the "Agreement") is made this day of
, 2018, by and between Selva Preserve LLC, a Florida Limited Liability Company (the
"Developer") and the City of Atlantic Beach, a Florida Municipality, its successors and assigns (the "City").
RECITALS
A. The Developer owns certain real property known as Selva Preserve described in Plat Book 71, Page
63, Public Records of Duval County, Florida (the "Plat") (the "Selva Preserve Property").
B. As part of the development of the Selva Preserve Property, the Developer intends to develop five
(5) single family residential lots, identified on the Plat as Lots 7, 8, 9, 10, and 11 (the "Residential Lots").
C. The Developer desires to set forth and grant to the City, its successors and assigns, a perpetual forty
(40) foot greenway easement along the western edge of Sherman Canal, for ingress and egress on, over and
across the real property owned by the Developer and described on the attached Exhibit A incorporated
herein by this reference (the "Greenway Easement Area") in accordance with and subject to the terms and
conditions set forth herein. Developer shall seek a modification of St. Johns River Water Management
District ERP Permit 120212-3 and the Federal Army Corp of Engineers Permit, if applicable, to allow for
the Greenway Easement. Any wetland mitigation required pursuant to a Federal or State permit shall be
the responsibility of the City.
D. The City shall: (i) be responsible for maintenance of the Greenway Easement Area, and (ii) with
timing at the sole election of the Developer or the homeowners association created by the Developer with
respect to Residential Lots (the "HOA"), the City will pay for the cost and installation of a five (5) foot
aluminum fence along the western border of the Greenway Easement Area and with one locking gate along
the western border of the Greenway Easement Area at the time of building the Greenway.
NOW, THEREFORE, for and in consideration of the recitals stated above, for and in consideration of the
sum of $10.00 in hand paid and to the mutual covenants and promises contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Developer and
the City agree as follows:
1. Recitals. The recitals hereinabove set forth are true and correct and are hereby incorporated
into and made a part of this Agreement.
20
#t5781324o_v7
EXHIBIT "C" CONTINUED
2. Grant of Greenway Easement by the Developer to the City. The Developer hereby grants
and conveys to the City, its successors and assigns, an exclusive, perpetual, appurtenant, and permanent
access easement for unfettered ingress and egress on, over, across and through the Greenway Easement
Area as defined above (the "Greenway Easement"). A re -plat of the Selva Preserve Property depicting the
Grant of Easement is filed contemporaneously with this Greenway Easement at Plat Book , Page
Public Records of Duval County, Florida.
3. Acceptance of Easement. The City accepts the Greenway Easement subject to the terms
and conditions set forth herein.
4. Maintenance. The City shall have the exclusive obligation to maintain the Greenway
Easement Area.
5. Permitted Uses within Greenway Easement. The City, its successors and assigns, shall
have the right to use the Greenway Easement for the purpose of providing, constructing, fencing,
maintaining, landscaping, lighting, preserving, and repairing passive recreation uses for the public, such as
but not limited to, trails, nature path, benches, boardwalk, pedestrian pathway, walkway, or greenway.
6. Attorney's Fees. In the event of any litigation arising out of this Agreement the prevailing
parties shall be entitled to recover all costs incurred, including reasonable attorney's fees at both the trial
and appellate levels.
7. Successors and Assigns. This Agreement shall be binding upon and shall inure to the
benefit of the respective parties and their successors, assigns, heirs and personal representatives.
8. Indemnification by the City. Subject to the Iimitations of sovereign immunity set forth in
Section 768, F.S. as may be amended, the City shall indemnify, defend and hold harmless the Developer,
the HOA and the owner of any Residential Lot from any third party claims or liabilities resulting from or
arising out of the use of the Greenway Easement Area, but expressly excluding any claims to the extent
resulting from the negligence or willful misconduct of the Developer, the HOA, or any owner, lessee or
tenant of any Residential Lot.
9. Miscellaneous. The provisions of this Agreement may be modified or amended, in whole
or in part, or terminated, only by the written consent of each of the Parties. The Parties shall cooperate
reasonably with one another to adopt such amendments to this Agreement as may be required to correct
any errors of fact or any scrivener's errors contained herein. No waiver of any default of any obligation by
any party hereto shall be implied from any omission by the other party to take any action with respect to
such default. Nothing in this Agreement shall be deemed or construed by either party or by any third person
to create the relationship of principal and agent or of limited or general partners or of joint venturers or of
any other association between the parties. Each provision of this Agreement is hereby declared to be
independent of and severable from the remainder of this Agreement. If any provision contained herein
shall be held to be invalid or to be unenforceable or not to run with the land, such holding shall not affect
the validity or enforceability of the remainder of this Agreement. Time is of the essence of this Agreement.
This Agreement contains the complete understanding and agreement of the parties hereto with respect to
all matters referred to herein, and all prior representations, negotiations, and understandings are superseded
hereby. This Agreement may be executed in several counterparts, each of which shall be deemed an
original, and all such counterparts together shall constitute one and the same instrument.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK
21
#57813240_0
EXHIBIT "C" CONTINUED
IN WITNESS WHEREOF, the Developer and the City have executed these presents as of the day
and year first above written.
Signed in the presence of SELVA PRESERVE LLC,
a Florida limited liability company
Print Name:
Print Name:
STATE OF FLORIDA
COUNTY OF
By:
Name:
Title:
The foregoing instrument was acknowledged before me this _ day of , 2018, by
'as of Selva Preseive LLC, a Florida limited liability company on
behalf of the limited liability company. He/she ❑ is personally known to me or ❑ produced
as identification.
Print Name:
Notary Public — State of Florida
My commission expires:
Commission number:
[SIGNATURES CONTINUE ON NEXT PAGE]
22
#57813240_0
EXHIBIT "C" CONTINUED
Signed in the presence of: CITY OF ATLANTIC BEACH,
a Florida municipality
Print Name:
Print Name:
STATE OF FLORIDA
COUNTY OF
Bv:
Name: Ellen Glasser
Title: Mayor
Date:
ATTEST:
Donna Bartle, City Clerk
APPROVED AS TO FORM AND CORRECTNESS:
to
Brenna Durden, City Attorney
The foregoing instrument was acknowledged before me this _ day of 12018, by
as of City of Atlantic Beach, a Florida municipality, on
behalf of the municipality. He/she ❑ is personally known to me or ❑ produced
as identification.
Print Name:
Notary Public — State of Florida
My commission expires:
Commission number:
23
#578132400
EXHIBIT "C" CONTINUED
EXHIBIT "A"
(Greenway Easement Area)
(Legal Description)
PARCEL DESCRIPTION
A PORTION OF SECTIONS 16 AND 17, TOWNSHIP 2 SOUTH, RANGE 29 EAST, DUVAL COUNTY,. FLORIDA, BEING A
PORTION OF THOSE LANDS DESCRIBED IN OFFICIAL RECORDS VOLUME 13654, PAGE 262, OF THE CURRENT PUBLIC
RECORDS OF SAID DUVAL COUNTY, FLORIDA, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
FOR A POINT OF REFERENCE, COMMENCE AT THE SOUTHWESTERLY CORNER OF LOT 6, AS SHOWN ON
THE PLAT OF SELVA PRESERVE, AS RECORDED IN PLAT BOOK 71, PAGES 63--65, OF SAID CURRENT
PUBLIC RECORDS -OF DUVAL COUNTY, FLORIDA, THENCE NORTH 83'54'53' EAST, 60.00 FEET; THENCE
NORTH 40'49'44" EAST, 41.58, TO THE NORTHERLY LINE OF LOT 6 AS SHOWN ON THE SAID PLAT OF
SELVA PRESERVE, THENCE NORTH 78'03'10" EAST, ALONG THE NORTHERLY LINE OF LOT 6 OF THE
AFOREMENTIONED PLAT OF SELVA PRESERVE, 276.79 FEET, TO THE POINT BEGINNING OF
HEREIN DESCRIBED EASEMENT, THENCE LEAVING LAST SAID LINE, NORTH 14'30'07" WEST, 80.08 FEET;
THENCE NORTH 20'17'26" WEST, 114.11 FEET; THENCE NORTH 25'22'12" WEST, 68.23 FEET; THENCE
NORTH 09'48'21" WEST, 67.59 FEET; THENCE NORTH 15'49'40" WEST, 73.36 FEET, TO THE SOUTHERLY
LINE OF OFFICIAL RECORDS VOLUME 7910, PAGE 958, THENCE NORTH 78'03'10" EAST ALONG THE SAID
SOUTHERLY LINE OF OFFICIAL RECORDS VOLUME 7910, PAGE 958, 40.00 FEET TO THE
APPROXIMATE TOP OF BANK OF SHERMAN CREEK CANAL, THENCE LEAVING LAST SAID LINE, AND
FOLLOWING THE APPROXIMATE TOP OF BANK OF SHERMAN CREEK CANAL, THE FOLLOWING COURSES,
SOUTH 15'49'40" EAST, 73.36 FEET; THENCE SOUTH 09'48'21" EAST, 67.59 FEET; THENCE SOUTH
25'22'12" EAST, 68,23 FEET; THENCE SOUTH 20'17'26" EAST, 114.11 FEET; THENCE SOUTH 14'30'07"
EAST, 80.08 FEET, TO THE NORTHERLY LINE OF LOT 6 OF THE AFOREMENTIONED PLAT OF SELVA
PRESERVE, RECORDED IN PLAT BOOK 71, PAGES 63-65, THENCE SOUTH 78'03'10" WEST, DEPARTING
SAID TOP OF BANK OF SHERMAN CREEK CANAL AND ALONG THE AFOREMENTIONED NORTHERLY LINE OF
LOT 6, 40.00 FEET TO THE POINT OF BEGINNING.
CONTAINING 0.37 ACRES MORE OR LESS
24
#57813240 v7
EXHIBIT "C" CONTINUED
EXHIBIT "A" CONTINUED
A MAP SHOWING A SKETCH AND DESCRIPTION OF
A PORTION OF SECTIONS 16 AND 17, TOANSHIP-2—SOUTH, MWE-28—EAST.
DUVAL COUNTY, FLORIDA,
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