Ivy Pointe in Pelican MarshMEMORANDUM
DATE: January 7, 1998
TO: Maureen Kenyon, Supervisor, Clerk to Board
FROM: Shirley Nix, Engineering Technician II/~
Project Plan Review
RE: Ivy Pointe in Pelican Marsh
Water and Sewer Facilities Acceptance
!
On December 3, 1997, Engineering Review granted preliminary
acceptance of the water and sewer facilities within the above-
referenced project.
Attached, please find the following recorded documents, in order:
1. Utilities Facilities Subordination, Consent and Joinder
2. Bill of Sale
3. Utilities Facilities Warranty Deed
Also, please find attached the following documents for your
files.
o
10.
11.
Owner's Affidavit
Attorney's Affidavit
Copy of preliminary approval letter(s) from Engineering
Review
Certification of pressure testing of water lines by
Engineer of Record
Bacteriological clearances (DER certification) for
water facilities
DER Placement-in-Service letter for sewer facilities
Contractor's Final Release of Lien
Lab results on bacteriological test for water lines
Memorandum to Maureen Kenyon, Supervisor, Clerk to Board
January 7, 1998
Page Two
12.
Certification concerning contributions-in-aid of any
construction
13.
Verification of final cost (Detailed: quantities,
sizes, unit cost, total cost, etc.)
14.
Letter by Engineer certifying that all water and/or
sewer facilities are located within the public
right-of-way or dedicated easements
15.
Contractual Guarantee for material and workmanship for
a period of at least one year after the Board of County
Commissioners' acceptance for both water and sewer
facilities
16.
Payment of water usage, laboratory and administrative
charges for filling, flushing and bacteriologically
certifying water lines from invoice prepared by the
Utilities Division
17.
Letter from fire district regarding ownership and
maintenance of fire hydrants and certification of
field fire flow capacity testing
18.
Certification of the inflow/infiltration test for the
sewer lines by Engineer of Record
19. Copy of video tape test report
20.
Letter from Compliance Services section certifying that
the final inspection reveals that the Utility
facilities have been constructed in accordance with
County ordinances and regulations
21. One copy of the recorded plat
22.
One set of record drawings, signed and sealed by the
Engineer of Record
If you have any questions, please call and advise accordingly.
attachments
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Retn:
ENGINEERING REVIEW SERVICE~
SHIRLEY NIX
E~? 5586
. 2266532 OR: 2378 PG: 0873
RECORDED in the OFFICIAL RECORDS of COLLIER COUNTY, FL
01/08/98 at l~:32AM DWIGHT E, BROCK, CLERK
UTILITY FACILITIES SUBORDINATION. CONSENT AND JOINDER
THIS SUBORDINATION, CONSENT AND JOINDER given this 29th day of
August , 1997, by Comerica Bank, a Michigan corporation (hereinafter referred to as
"Mortgagee"), in favor of the BOARD OF COUNTY COMMISSIONERS OF COLLIER
COUNTY, FLORIDA, AS THE GOVERNING BODY OF COLLIER COUNTY AND AS EX-
OFFICIO THE GOVERNING BOARD OF THE COLLIER COUNTY WATER-SEWER
DISTRICT, its successors and assigns (hereinafter referred to as "County"). Mortgagee is used
as singular or plural, as the context requires.
WITNESSETH.
WHEREAS, Mortgagee is the owner and holder of that certain Mortgage, Security
Agreement and Assignment of Rents by and between Ivy Pointe, Inc., a Florida corporation, as
Mortgagor, and Comerica Bank, a Michigan corporation, as Mortgagee, recorded in O.R. Book
2268, Page 1288; Assignment of Contracts, Licenses, Permits, etc., by and between Ivy Pointe,
Inc., a Florida corporation, as Borrower, and Comerica Bank, a Michigan corporation, as Lender,
recorded in O.R. Book 2268, Page 1318; UCC-1 Financing Statement by and between Ivy Pointe,
Inc., a Florida corporation, as Debtor, and Comerica Bank, a Michigan corporation, as Secured
Party, recorded in O.R Book 2268, Page 1323; all of the Public Records of Collier County,
Florida; and UCC-1 Financing Statement by and between Ivy Pointe, Inc., a Florida corporation,
as Debtor, and Comerica Bank, a Michigan corporation, as Secured Party, filed with the Florida
Secretary of State, Number 970000016914 (hereinafter referred to as "Mortgage"), encumbering
the premises legally described therein (hereinafter referred to as the "Encumbered Property").
WHEREAS, County has requested and received from the fee simple owner of the
Encumbered Property non-exclusive easements for the installation and maintenance of utility
facilities over and across a portion of the encumbered premises legally described in Exhibit "A"
attached hereto and incorporated herein by virtue of this reference, )which premises are hereinafter
referred to as the "Easement Property."
WHEREAS, County has requested that Mortgagee consent to, join in and subordinate its
Mortgage to the interest that County has in the Easement Property to which request Mortgagee has
agreed.
NOW, THEREFORE, in consideration of TEN DOLLARS ($10.00) and other good and
valuable consideration, the receipt of which is hereby acknowledged, the Mortgagee does hereby
consent to, join in and subordinate the lien of its Mortgage to the grant of that certain easement
described herein over, under, and across the Easement Property and any interest of the County in
any utility facilities located therein or affixed thereto. Except as subordinated to the easement
described herein over, under, and across the Easement Property or any utility facilities located
therein or affixed thereto, said Mortgage shall remain otherwise in full force and effect.
OR: 2378 PG: 0874
IN WITNESS WHEREOF, the Mortgagee has caused these presents to be executed the
date and year first above written.
Witnesses:
Print Name:/~],'c~ fi/foci'e_
Comerica Bank, a Michigan Corporation
[CORPORATE SEAL]
STATE OF F 1 o r i d a
COUNTY OF Palm Beach
The foregoing Utilities Facilities Subordination, Consent and Joinder was acknowledged
before meby Edward M. Cochran ,a~s Vice Presic~n~ of
Comerica Bank, a Michigan corporation.. H~/she(i~ pers°naliY known to m~or has produced
as identification.
WITNESS my hand and official seal this 2 9 t h day of
Notary Public
(affix notarial seal)
August , 1997.
Print Name
My Commission Expires:
This Instrument Prepared By:
C. Perry Peeples, Esquire
Annis, Mitchell, Cockey, Edwards & Roehn, P.A.
8889 Pelican Bay Blvd., Suite 300
Naples, Florida 34108
(941) 597-7088
O~FICIAL NOTARY SEAL
ALICE MARIE LAVIN
YrARY PUBLIC STATE OF FLORIDA
COMMISSION NO, CC587947
COM MJ~SI_ON EXP, SEPT 24,20(10
*** OR: 2378 PG: 0875
Tract A as shown on the Plat of Ivy Pointe, recorded in Plat Book 28, Page 33,
Public Records of Collier County, Florida.
FOR USE BY
CLERK OF COURT:
2266533 OR: 2378 PG: 0876
RECORDED in OFFICIAL RECORDS of COLLIER COUNTY, PL
01/08/98 at ll:32AM DWIGHT E. BROCK, CLERK
R~C F~ 15.00
Retn:
S~IR~¥ ~IX
~X? 55~6
BILL OF SALE
THIS BILL OF SALE evidencing the sale and conveyance of the water and sewer utility
facilities described herein is made this .~f' day of ~4~153' , 1997, by Ivy
Pointe, Inc., a Florida corporation, a Florida corporation (hereinafter referred to as "Seller"), and
the BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, AS THE
GOVERNING BODY OF COLLIER COUNTY AND AS EX-OFFICIO THE GOVERNING
BOARD OF THE COLLIER COUNTY WATER-SEWER DISTRICT, its successors and assigns,
(hereinafter referred to as "Buyer").
WITNESSETH:
That said Seller, for and in consideration of the sum of Ten Dollars ($10.00) and other
good and valuable consideration to said Seller in hand paid by the said Buyer, the receipt whereof
is hereby acknowledged, has granted, bargained, sold, transferred, set over and delivered, and by
these presents does grant, bargain, sell, transfer, set over and deliver unto the Buyer, and the
Buyer's heirs, successors and assigns forever, all those certain water and sewer utility facilities
lying within the following described land, together with appurtenant easement rights for the
operation, installation and maintenance of said facilities, situate, lying and being in Collier
County, Florida, to wit:
(See Exhibit "A" attached hereto and
incorporated by reference herein)
The Seller, for itself and its successors, hereby covenants to and with the Buyer and its
successors and assigns that it is the lawful owner of the said goods and chattels herein referred to
as utility facilities; that said goods and chattels are free from all liens and encumbrances; that it
has good right, title and authority to sell same, and that it will warrant and defend the same against
the lawful claims and demands of all persons whomsoever. Seller and Buyer are used for singular
or plural, as the context requires.
OR: 2378 PG: 0877
IN WITNESS WHEREOF, Seller has caused these presents to be executed the date and
year first above written.
Witnesses:
STATE OF FLORIDA
COUNTY OF COLLIER
IVy POINTE, INC.
a Florida COrporation'
Its: President
[CORPORATE SEALJ
The foregoing Bill of Sale was acknowledged before me by Paula Davis, as President of
Ivy Pointe, Inc., a Florida corporation, who is p~ or Who has produced
as identification.
WITNEss my hand and officia/ sea/ this ~ day of~L&~~, 1997.
(affix
This Instrument Prepared By:
C. Perry Peeples, Esquire
Ann/s, Mitchell, Cockey, Edwards & Roehn
8889 Pelican Bay Blvd., Suite 300
Nap/es, Florida 34108
(941) 597-7088
(Print~~~
My Commission Expires:
*** OR: 2378 PG: 0878
Tract A as shown on the Plat of Ivy Pointe, recorded in Plat Book 28, Page 33,
Public Records of Collier County, Florida.
FOR USE BY THE
CLERK OF COURT:
226653 OR: 2378 PG: 0879
RECORDBD in O~ICIAL RBCORD$ o~ COLLIER COUNT~, ~L
01/08/9~ at 11:32~M D~IGH~ ~. B~OC[, C~K
R~C )B~ 15.00
DOC-.10
Retn:
BXI 55B6
UTILITIES FACILITIES WARRANTY DEED
THIS · ' fter referred to as "Grantor"), and the BOARD
Pointe, Inc, a Florida corporation (herema
Ivy ·
OF cOUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, AS THE GOVERNING
BODY OF COLLIER cOUNTY AND AS EX-OFFICIO THE GOVERNING BOARD OF THE
COLLIER cOUNTY WATER-SEWER DISTRICT, its successors and assigns (hereinafter
referred to as "Grantee").
WITNESSETH:
That said Grantor, for and in consideration of the sum of Ten Dollars and other good
and valuable consideration to said Grantor in hand paid by said Grantee, the receipt whereof is
hereby acknowledged, has granted, bargained and sold to the said Grantee, and Grantee's
heirs, successors and assigns forever, all water and sewer utility facilities lying within the
following described land, together with appurtenant easement rights for the operation,
installation and maintenance of said facilities, situate, lying and being in Collier County,
Florida, to wit:
(See Exhibit "A" attached hereto and incorporated by reference herein)
and said Grantor does hereby fully warrant the title to said utility facilities, and will defend the
same against the lawful claims of all persons whomsoever. For the purposes of this
conveyance, the utility facilities conveyed herein shall not be deemed to convey any of the
lands described in Exhibit "A". Grantor and Grantee are used for singular or plural, as
context requires.
IN WITNESS WHEREOF, Grantor has caused these presents to be executed the date
and year first above written.
Ivy Pointe, Inc.,
a Florida corporation
B .y(~-'
Paula Davis
Its: President
OR: 2378 PG: 0880
STATE OF FLORIDA
COUNTY OF COLLIER
The foregoing Utility Facilities Warranty Deed was acknowledged before me by Paula
Davis, as President of Ivy Pointe, Inc., a Florida corporation, who is personally known to me
or who has produced identification.
WITNESS my hand and official seal this c~ day of ~x6~AZk2~-~ , 1997.
(affix notarial seal)
Print Na~e
My Commission Expires:
This Instrument Prepared By:
C. Perry Peeples, Esq.
Annis, Mitchell, Cockey, Edwards & Roehn
8889 Pelican Bay Blvd., Suite 300
Naples, Florida 34108
(941) 597-7088
-2-
*** OR: 2378 PG: 0881 ***
Tract A as shown on the Plat of Ivy Pointe, recorded in Plat Book 28, Page 33,
Public Records of Collier County, Florida.
OWNER'S AFFIDAVIT
STATE OF FLORIDA
COUNTY OF COLLIER
On this ~ day of ~o.~tS~ ,1997, before me personally appeared Paula Davis,
as President of Ivy Pointe, Inc., a Florida corporation, owner of property, to me personally known
(hereinafter "Affiant"), who, being duly sworn on her oath, did say that all of the persons, firms,
and corporations, including the general contractor and all subcontractors, who have furnished
services, labor or materials according to plans and specifications, or extra items, used in the
construction or repair of water and sewer utility facilities on the real estate hereinafter described,
have been paid in full and that such work has been fully completed and accepted by the owner.
Affiam further says that no claims have been made to the Owner by, nor is any suit now
pending on behalf of, any contractor, subcontractor, laborer or materialman, and further that no
chattel mortgages or conditional bills of sale have been given or are now outstanding as to the
subject utility facilities placed upon or installed in the aforesaid premises.
Affiant further says that the mility facilities described herein are encumbered by, or subject
to a Mortgage, Security Agreemem and Assignmem of Rems by and between Ivy Poime, Inc.,
a Florida corporation, as Mortgagor, and Comerica Bank, a Michigan corporation, as Mortgagee,
recorded in O.R. Book 2268, Page 1288; Assignmem of Comracts, Licenses, Permits, etc., by
and between Ivy Pointe, Inc., a Florida corporation, as Borrower, and Comerica Bank, a Michigan
corporation, as Lender, recorded in O.R. Book 2268, Page 1318; UCC-1 Financing Statemem by
and between Ivy Pointe, Inc., a Florida corporation, as Debtor, and Comerica Bank, a Michigan
corporation, as Secured Party, recorded in O.R Book 2268, Page 1323; all of the Public Records
of Collier County, Florida; and UCC-1 Financing Statemem by and between Ivy Poime, Inc., a
Florida corporation, as Debtor, and Comerica Bank, a Michigan corporation, as Secured Party,
filed with the Florida Secretary of State, Number 970000016914.
Affiant, as and on behalf of the owner of the subject utility facilities, does for valuable
consideration hereby agree and guarantee, to hold the Board of County Commissioners of Collier
County, Florida, as the governing body of Collier County and as Ex-Officio the Governing Board
of the Collier County Water-Sewer District harmless against any lien, claim or suit by any general
contractor, subcontractor, mechanic or materialman, and against chattel mortgages, security
interests or repair of the subject utility facilities. Affiant is used as singular or plural, as the
context requires.
The utility facilities referred to herein are located within the real property described in the
attached Exhibit "A".
IVY POINTE, INC.,
a Florida corporation
Paula Davis
Its: President
[CORPORATE SEAL]
STATE OF FLORIDA
COUNTY OF COLLIER
The foregoing Owner's Affidavit was sworn to and subscribed before me by Paula Davis,
as President of Ivy Pointe, Inc., a Florida corporation, who is personally kn_ow_._n to me~ or who has
produced as identification.
WITNESS my hand and official seal this ~ day of ~ 1 a (%~ ~ ~4( , 1997.
(affi~ Print Name)
My Commission Expires: 03/2 7//zoc~l
This Instrument Prepared By:
C. Perry Peeples, Esq.
ANNIS, MITCHELL, COCKEY, EDWARDS
& ROEHN, P.A.
8889 Pelican Bay Boulevard
Suite 300
Naples, FL 34108
(941) 597-7088
-2-
EXHIBIT "A"
Tract A as shown on the Plat of Ivy Pointe, recorded in Plat Book :28, Page 33,
Public Records of Collier County, Florida.
ATTORNEY'S AFFIDAVIT
STATE OF FLORIDA )
COUNTY OF COLLIER )
On this ! t.,[ ~ay of /~ xo~ u 3'~ , 1997, before me personally appeared C. Perry
Peeples, a licensed attorney authori/ed to practice in the State of Florida, to me personally known,
whose current business address and telephone number is Annis, Mitchell, Cockey, Edwards &
Roehn, P.A., 8889 Pelican Bay Blvd., Suite 300, Naples, Florida 34108, (941) 597-7088,
(hereinafter "Affiant"), who, being duly sworn on his oath, does say:
1. This Affidavit is given as an inducement to the Board of County Commissioners
of Collier County, Florida as the governing body of Collier County and as Ex-Officio the
Governing Board of the Collier County Water-Sewer District to accept the dedication or
conveyance of water and sewer utility facilities located within or upon the real property described
in the attached Exhibit "A", which is incorporated herein by reference, said land being located in
Collier County, Florida.
2. The Affiant has examined record title information to both the real and personal
property referenced in this affidavit, including but not limited to, information requested from the
Florida Secretary of State relative to any Uniform Commercial Code financing statements.
3. The record owner of the real and personal property described herein is Ivy Pointe,
Inc., a Florida corporation (hereinafter "Owner"). The Owner acquired record title to the subject
real property by instrument recorded at Official Records Book 2268, at Page 1286, Public
Records, Collier County, Florida (copy attached).
4. Affiant has examined corporate information obtained from the Secretary of State.
The Owner is current and active within said State, and is currently authorized to do business in
the State of Florida. Paula Davis as President is authorized to execute the instruments on behalf
of the corporation in conjunction with the conveyance of the subject real and personal property.
5. The subject real and personal property is encumbered of record, or is the subject
of financing statements filed in the Public Records of Collier County, Florida, or the Office of the
Secretary of State as follows: Mortgage, Security Agreement and Assignment of Rents by and
between Ivy Pointe, Inc., a Florida corporation, as Mortgagor, and Comerica Bank, a Michigan
corporation, as Mortgagee, recorded in O.R. Book 2268, Page 1288; Assignment of Contracts,
Licenses, Permits, etc., by and between Ivy Pointe, Inc., a Florida corporation, as Borrower, and
Comerica Bank, a Michigan corporation, as Lender, recorded in O.R. Book 2268, Page 1318;
UCC-1 Financing Statement by and between Ivy Pointe, Inc., a Florida corporation, as Debtor,
and Comerica Bank, a Michigan corporation, as Secured Party, recorded in O.R Book 2268, Page
1323; all of the Public Records of Collier County, Florida; and UCC-1 Financing Statement by
and between Ivy Pointe, Inc., a Florida corporation, as Debtor, and Comerica Bank, a Michigan
corporation, as Secured Party, filed with the Florida Secretary of State, Number 970000016914.
(copies attached).
o
and current as of the date this Affidavit is given.
Affiant further states that the information comained in this Affidavit is tree, correct
C. PE~ PEEPLES
STATE OF FLORIDA
COUNTY OF COLLIER
The foregoing Attorney's Affidavit was sworn to and subscribed before me by C. Perry
Peeples, who is personally known to me.
WITNESS my hand and official seal this /~-~ day of ~
, 1997.
(affix notarial seal)
IJ~ LEANNE MARIE FARMOSA
~ MyComm Expi~e~;:~pl 5,
~ Na. CC 388397
I~o~ Public
(Print Name)
My Commission Expires:
This Instrument Prepared By:
C. Perry Peeples, Esq.
Annis, Mitchell, Cockey, Edwards & Roehn, P.A.
8889 Pelican Bay Blvd., Suite 300
Naples, Florida 34108
(941) 597-7088
EXHIBIT "A"
Tract A as shown on the Plat o£Ivy Pointe, recorded in Plat Book 2g, Page 33,
Public Records o£ Collier County, Florida.
Tsx Polio No. 66679461726
and should be returned to:
Vivien N. H~stings, Egl,
WCI Communitle~ Limited Parmership
- 801 Laurel Onk Drive, Suite
Nnples, FL 34108
2134703-0R:' 2268 PG: 1286
IDCOIIID in OL~IClAL II(OlDS of COLLIII COUIH, FL
01/02/97 et 04:S3PI( DWIGHT I. BROCK, CLIll
COIS 3200000.00
IlC ?11 10.50
DOC-,70 22400.00
letn:
ilO[If #ITCIILLBTAL
8889 PBLICAN BAY BLVD J300
BAPLIS FL 34108
above this line for record!n~ d_~!~) .
WARRANTY DRRn
THIS WARRANTY DEED, made the c~ ~ day of December, 1996, by WCl
COMMUN][T~S LIMITED PARTNERSHIP, a 'Delaware limited partnership, whose post office
address is 801 Laurel Oak Drive, Suite 500, Naples, Florida 34108, ("Grantor"), to Ivy Pointe, Inc.,
a Florida corporation, whose post office address is 9501 North Tamiami Trail, Suite 202, Naples,
Florida 34108, ("Grantee"):
(Wherever used herein, the terms "Grantor" and "Grantee" include all the parties to
this instrument and the heirs, legal representatives and assigns of individuals, and the
successors and assigns of corporations)
WITNF.~ETH: That the Grantor, for and in consideration of the sum of $10.00--and other valuable
considerations, receipt, of which is hereby acknowledged, hereby grants, bargains, sells, aliens,
remises, releases, conveys and confirms unto the Grantee, all that cenain land situate in Collier
County, Florida, viz:
Parcel "K", Pelknn Marsh Unit Eight Replat, according to the plat thereof
recorded in Plat Book 27, Pages 42 through 44, inclusive, of the Public Records
of Collier County, Florida.
TO~ETItER with all the tenements, hereditaments and appurtenances thereto belonging or in anywise
appertaining.
TO HAVE AND TO HOLD, the same in fee simple forever.
SUB, IF. CT to the following:
(a) Taxes and assessments for 1997 and subsequent years;
(b) That certain DECLARATION OF GENERAL COVENANTS, CONDITIONS AND
RESTRICTIONS FOR PELICAN MARSH recorded in OR Book 1891, pages 1814 through
1865, inclusive, of the Public Records of Collier County, Florida, as amended;
(c) That certain DECLARATION OF NEIGHBORHOOD CGVENANTS, CONDITIONS
AND RES~ONS FOR PARCEL K, PELICAN MARSH RI]PLAT, to be recorded
simultaneously herewith;
(d) Applicable comprehensive plans, or elements or portions hereof, land development
regulations including zoning and subdivision ordinances, development orders, Pelican Marsh
DRI Development Order 95-1 adopted by the Board of County Commissioners of Collier
County, Florida pursuant to Resolution No. 95-71 dated January 24, 1995, development
permits and other regulations and conditions of all governmental agencies concerning the
Property;
1
Covem~, conditions,, restrictions, easements, limitations and reservations of record.
(f) The Property lies within the Pelican Marsh Community. Grantee is hereby notified
that (1) the Property Grantee is purchasing is located within a hurricane vulnerability zone; (2)
the hurricane evacuation time for the Southwest Florida Region is high; and (3) hurricane
shelter space is limited. Grantee is required to include this notification in any subsequent
deeds conveying a portion or all of the Property.
The Grantor hereby covenants with said Grantee that the Grantor is lawfully seized of said land in fee
simple; that it has good fight and lawful authority to sell and convey said land; that the Grantor hereby
fully warrants the title to said land and will defend the same against the lawful claims of all persons
whomsoever.
IN WITNESS WIIEREOF, the Grantor has signed and sealed these presents the day and year first
above written.
Signed, Sealed and Delivered
i~ence off ~ a Dela~
Wimps Name: [J~_F:~ t[.~tT~U_.f ~
Witnezs/lqame: L)I I? &tl)i~ J .TLt~LK_f.,,
WCI COMMUNITIES LIMITED PARTNERSHIP
~~~. ~ partnership
chmoyer
~e~lio'r Vice President
* F.,xec~ed lmrmmnt to a~&orlty ~-anted in tlmt certain Certificate/Power of Attorney recorded
at O.R. Book 2234, PUg~ 0651, of the Public Records of Collier County, Florida.
STATE OF FLORIDA
COUNTY OF COLLIER
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State and
County aforesaid to take acknowledgments, personally appeared Jerry H. Schmoyer, well-known to me
to be a Senior Vice President, of the partnership named as Grantor in the foregoing deed and that he
acknowledged executing the same in the presence of two subscribing witnesses, freely and voluntarily
under authority duly vested in him by said partnership. He is personally known to me.
WITNESS my hand and official seal in the County and State last aforesaid this
December, 1996.
[SEAL]
~'~day of
Notary .Public \.
My Co~. Expir~: -~' -
2
Prepared By:
Warren J. Kozlow, Esq.
WARREN J. KOZLOW, P.A.
7000 West Palmetto Park Rd.
Suite 400
Boca Raton, Florida 33433
RETURN TO:
2134704 OR: 2268 PG: 1288
RB(:OIDID in OIIlClAL IICOIDS of COLLIII COUld, IL
01/02/S7 at 04:52L, H DWIGHT I. BROC[, CLIH
OBLD
OBLI 5700000.0
D0C-.35 1S950.0
IHT-.002 11400.0
aetn:
IIflIY~r~ilL'L*TL'AL
8889 PBLICAI BAY BLVD #300
eAPLIS FL 34108
Bruce G. Fedor, Esq.
ANNIS, MITCHELL, COCKEY, EDWARDS & ROEHN, P.A.
8889 Pelican Bay Blvd., Suite 300
Naples, Florida 341'08
MORTGAGE, SECURITY AGI~_~M~NT an~
ASSIGNMENT OF RENTS
THIS MORTGAGE, SECURITY AGREEMENT and ASSIGNMENT OF RENTS
("Mortgage") is executed by IVY POINTE, INC., a Florida corporation
("Mortgagor"), whose address is 9051 Tamiami Trail North, Suite
202, Naples, Florida 33963, to COMERICA BANK, a Michigan
corporation ("Mortgagee"), whose address is 500 Woodward Avenue,
7th Floor, MC-3255, Detroit, Michigan 48226.
WI TNESSETH:
WHEREAS, Mortgagor has executed and delivered to Mortgagee
that certain Land Loan Promissory Note ("Land Loan Note"), dated on
or about the date hereof, in the amount of THREE MILLION FOUR
HUNDRED EIGHTY THOUSAND and NO/100 ($3,480,000.00) DOLLARS, with
interest thereon, and that certain Construction Loan Promissory
Note ("Construction Loan Note"), dated on or about the date hereof,
in the amount of TWO MILLION TWO HUNDRED TWENTY THOUSAND and NO/100
($2,220,000.00) DOLLARS, with interest thereon, copies of which are
attached hereto and made a part hereof as EXHIBITS "A" & "B",
respectively (the Land Loan Note and the Construction Loan Note are
hereinafter referred to, individually and collectively, as the
"Notes").
NOW, THEREFORE, for good and valuable consideration, and to
secure, on a pari passu basis, the payment of the amounts set forth
in the Notes, or so much thereof as may be advanced, together with
interest thereon and all other sums of money advanced or due
thereunder, and to secure the payment and performance by Mortgagor
of that certain Loan Agreement ("Loan Agreement"), dated on or
about the date hereof, by and between Mortgagor, as "Borrower" and
Mortgagee, as "Lender", and to secure the payment and performance
by Mortgagor of that certain Assignment of Contracts, Licenses,
Permits, Etc. ("Assignment"), dated on or about the date hereof, by
Mortgagor to Mortgagee (the Notes, this Mortgage, the Loan
Agreement, the Assignment and all other agreements and documents
referenced therein and/or executed in accordance therewith, in the
past, now or in the future, are sometimes hereinafter collectively
referred to as the "Loan Documents", and individually as a "Loan
Document"), and to further secure the payment and performance by
Mortgagor under all other Loan Documents, Mortgagor does grant,
bargain, sell, alien, remise, release, convey, mortgage and confirm
unto Mortgagee, in fee simple, the following described property
located in the City of Naples, Collier County, Florida, together
with the buildings and improvements thereon erected or to be
erected thereon (collectively, the "Premises"):
See EXHIBIT "C", attached hereto and made a
part hereof;
TO~ETHER WITH the following property rights:
(a) Ail right, title and interest of Mortgagor in and to
all leases or subleases covering the Premises or any portion
thereof, now or hereafter existing or entered into, and all
right, title and interest of Mortgagor thereunder, including,
without limitation, all cash or security deposits, advance
rentals and deposits or payments of a similar nature;
(b) Ail right, title and interest of Mortgagor in and to
all agreements or options to sell, purchase or lease the
Premises or any portion thereof or interest therein,
including, without limitation, all deposits and other sums
thereunder;
(c) Ail interests, estate or other claims, both in law
and equity, which Mortgagor now has or may hereafter acquire
in the Premises;
(d) Ail easements, rights-of-way and rights used in
connection therewith or as a means of access thereto, and all
tenements, hereditaments and appurtenances thereof and
thereto, all right, title and interest of Mortgagor in and to
any streets and roads abutting said Premises, and in and to
any strips or gores of land therein, all water, sanitary and
storm systems that are now or hereafter located on or adjacent
to the Premises, and all gas, oil, mineral and timber rights
and riparian and littoral rights pertaining to the Premises;
(e) All machinery, apparatus, equipment, fittings,
fixtures and articles of personal property of every kind and
nature whatsoever, now owned or hereafter owned by Mortgagor
and which are now or will hereafter be located in or upon the
Premises, or any part thereof, and used or usable in
connection with the use and operation of buildings or for use
in any construction being conducted on the Premises, it being
understood and agreed that all such items are part and parcel
of the Premises and appropriated to the use thereof, and,
whether affixed or annexed to the Premises or not, shall for
the purposes of this Mortgage be deemed conclusively to be
real estate and mortgaged hereby; and Mortgagor agrees to
execute and deliver, from time to time, such further
instruments as may be requested by Mortgagee to confirm the
lien of this Mortgage on any such items;
(f) All awards and proceeds to which Mortgagor is
entitled by virtue of any taking of all or any part of the
Premises by condemnation or the exercise of the right of
eminent domain, the alteration of the grade of any street, or
any other taking;
(g) Ail rents, issues and profits of the Premises and
all estate, right, title and interest of every nature
whatsoever of Mortgagor in and to the same.
The Premises and all property rights described in (a) through
(g) above are sometimes hereinafter collectively referred to as the
"Property...
TO HAVE AND 'TO HOLD all and singular the Property hereby
conveyed, the tenements, hereditaments and appurtenances thereunto
belonging or in any way appertaining, and the reversion and
reversions, remainder and remainders, rents, issues and profits
thereof, and all estate, right, title, interest, property,
possession, claim and demand whatsoever as well in law, as in
equity of Mortgagor in and to the same and every part and parcel
thereof unto Mortgagee in fee simple.
2
PROVIDED, HOWEVER, that if Mortgagor shall pay Mortgagee the
sums specified .in the Notes and all other sums Secured by this
Mortgage, at the times and in the manner required, all without
deduction, setoff or credit, and shall also timely perform, comply
with and observe all the terms and conditions of this Mortgage, the
Notes and the other Loan Documents, and any renewals, extensions,
consolidations or modifications thereof, then the estate hereby
created shall cease and be null and void, but shall otherwise
remain in full force and effect.
Mortgagor covenants with and warrants to Mortgagee: (a) that
Mortgagor has good and marketable title to the Property, is
indefeasibly and lawfully seised and possessed of the Property in
fee simple and has the lawful right to sell, mortgage and convey
the same; (b) that the Property is unencumbered except for any
matters listed in a schedule of exceptions to coverage in the title
insurance policy insuring the lien of this Mortgage; and (c) that
Mortgagor shall forever warrant and defend the Property unto
Mortgagee, and the validity and priority of the lien of this
Mortgage, against the lawful claims and demands of all persons
whomsoever.
Mortgagor further covenants and agrees with Mortgagee as
follows:
1. Payment and Performance. Mortgagor shall pay all sums due
Mortgagee at the time and in the manner provided in the Notes and
in the other Loan Documents, without deduction or setoff, in lawful
money of the United States of America, and Mortgagor shall
otherwise perform, comply with and abide by each and every one of
the terms, provisions and conditions contained in the Loan
Documents.
2. Taxes, Assessments and Charges. Mortgagor shall pay
all taxes, assessments (whether general or special) and all other
charges whatsoever levied, assessed, placed or made against all or
any part of the Property or any interest of Mortgagor or Mortgagee
therein, or against any Loan Document or any obligation thereunder.
Mortgagor shall make such payment in full (and shall deliver to
Mortgagee the paid receipts) not later than Thirty (30) days before
the last day upon which the same may be paid without the imposition
of interest (except interest on special assessments payable by law
in installments, in which case Mortgagor shall pay each such
installment when due) or other late charge or penalty. If
Mortgagor shall fail, neglect or refuse to pay any such taxes,
assessments or other charges as aforesaid, then Mortgagee at its
option may pay the same, and any funds so advanced by Mortgagee
shall bear interest, shall be paid and shall be secured as provided
in Section 15 hereof (hereinafter, the "Advance Provision").
3. Liens. Mortgagor shall not permit any liens,
encumbrances, mechanics' or construction, laborers', statutory or
other liens or charges upon the Property or any part thereof, and
shall pay and promptly discharge, at Mortgagor's cost and expense,
all such liens, encumbrances and charges upon the Property or any
part thereof or interest therein. Mortgagor shall have the right
to contest in good faith the validity of any such lien, encumbrance
or charge, provided Mortgagor shall first deposit acceptable
security with a court of competent jurisdiction sufficient to
eliminate the lien as a lien upon the Property. If Mortgagor shall
fail to transfer the lien to a bond or otherwise discharge any such
lien, encumbrance or charge, then, in addition to any other right
or remedy of Mortgagee, Mortgagee may, but is not obligated to,
discharge same, either by paying the amount claimed to be due or by
procuring the discharge of such lien by depositing in court a bond
or otherwise giving security for such claim, or in such manner as
is or may be prescribed by law. Any such p~yment or deposit by
Mortgagee shall .be subject to the Advance ProvisiOn.
4. Insurance. Mortgagor, at Mortgagor's sole cost and
expense, at all times, must obtain and maintain in full force and
effect all insurance coverages required by this Mortgage and the
Loan Agreement, which insurance policies and coverages shall be in
the amounts and otherwise meet all requirements of this Mortgage
and the Loan Agreement, including, without limitation, the
following:
(a) Mortgagor shall maintain builder's risk insurance
with a reputable and highly rated insurance company or
companies licensed in Florida and reasonably acceptable to
Mortgagee, covering all improvements, equipment and tangible
personal property now or hereafter located on the Property, in
an amount not less than their full insurable value on a One
Hundred (100%) Percent replacement cost basis, without
contribution or coinsurance, for the benefit of Mortgagor and
Mortgagee as their interests may appear, by policies on such
terms, in such form and for such periods as Mortgagee shall
require or approve from time to time, insuring with extended
coverage and broad form coverage against loss or damage by
fire, flood, casualty, and such other insurable risks as may
from time to time be required by Mortgagee. Mortgagor shall
assign and deliver to Mortgagee all policies of insurance
which insure against any loss or damage to the Property or any
part thereof, as collateral and further security for the
payment and performance of this Mortgage, the Notes and the
other Loan Documents, with loss payable to Mortgagee pursuant
to a standard mortgagee clause acceptable to Mortgagee.
Mortgagor shall give Mortgagee written notice of any loss
or damage to the Property or any part thereof within Seventy-
Two (72) Hours after the occurrence of such event, and shall
not adjust or settle any such loss or damage without
Mortgagee's prior written consent, which consent shall not be
unreasonably withheld. In the event of such loss or damage,
all proceeds of insurance shall be payable to Mortgagee, and
Mortgagor hereby authorizes and directs any affected insurance
company to make payment of such proceeds directly to
Mortgagee. Mortgagee is hereby authorized and empowered by
Mortgagor to settle, adjust or compromise any claims for loss,
damage or destruction under any policy or policies of
insurance. Mortgagor hereby irrevocably appoints Mortgagee
its attorney-in-fact coupled with an interest with the power
and authority to endorse any checks, drafts or other
instruments representing any proceeds of such insurance,
whether payable by reason of loss thereunder or otherwise. If
any insurance proceeds are received for loss or damage to the
Property, then Mortgagee at its option may retain such
proceeds, or any portion thereof, and apply them toward
payments due under this Mortgage, the Notes and/or the other
Loan Documents (in any order of priority Mortgagee may deem
appropriate in its sole discretion), or Mortgagee may disburse
such proceeds, or any portion thereof, to Mortgagor for the
repair or restoration of the damaged Property or any part
thereof in a similar manner as disbursements under a
construction loan, in which event, Mortgagee shall not be
obligated to see to the proper application by Mortgagor of any
such disbursements.
Except to the extent that insurance proceeds are received
by Mortgagee and applied to the indebtedness secured hereby,
nothing herein contained shall be deemed to excuse Mortgagor
from repairing and/or maintaining the Property as provided in
this Mortgage or restoring all damage or destruction to the
Property, regardless of whether there are insurance proceeds
.4
available or whether any such proceeds are sufficient in
amount, and the application or release by Mortgagee of any
insurance proceeds shall not cure or waive any default under
this Mortgage.
(b) Mortgagor shall obtain and carry general
comprehensive liability insurance with a reputable and highly
rated insurance company or companies licensed in Florida and
reasonably acceptable to Mortgagee, which policy shall name
both Mortgagor and Mortgagee as insureds, with initial limits
of not less than One Million ($1,000,000.00) Dollars as to
personal injury or death, and Five Hundred Thousand
($500,000.00) Dollars with respect to property damage (or such
greater or different limits which Mortgagee may require from
time to time in its sole discretion) and on such terms, in
such form and for such periods as Mortgagee shall approve from
time to time.
(c) If the Property or any part thereof is designated as
a flood prone or flood risk area under the Flood Disaster
Protection Act of 1973, as amended or supplemented, then
Mortgagor shall obtain flood insurance in an amount not less
than the replacement cost of the improvements to be
constructed on the Property.
(d) Mortgagor shall also obtain and maintain such other
insurance in such amounts as Mortgagee may reasonably require
from time to time. Mortgagor may also obtain any other
insurance not required pursuant to this Mortgage or the Loan
Agreement, but any such insurance affecting the Property shall
be for the mutual benefit of Mortgagor and Mortgagee, and
shall be subject to the other applicable provisions of this
Mortgage and the Loan Agreement.
(e) Mortgagor shall deliver to Mortgagee all policies
required hereunder and under the Loan Agreement, with evidence
of payment satisfactory to Mortgagee, before any amounts are
required to be advanced under the Notes, and not less than
Thirty (30) days prior to the expiration date of each policy
required under this Mortgage and under the Loan Agreement,
Mortgagor shall deliver to Mortgagee renewal policies with
evidence of payment satisfactory to Mortgagee. All insurance
policies shall contain a provision that such policies shall
not be canceled or materially amended (which shall include,
without limitation, any reduction in the scope or limits of
coverage) without at least Thirty (30) days prior written
notice to Mortgagee.
(f) If Mortgagor fails to maintain any required
insurance in force, then Mortgagee at its option may obtain
such insurance and pay the premiums therefor, and any such
sums advanced by Mortgagee shall be subject to the Advance
Provision.
(g) Upon any default by Mortgagor under this Mortgage,
the Notes or any other Loan Document, all right, title and
interest of Mortgagor in and to all such insurance policies
then in force, including, without limitation, any and all
unearned premiums and existing claims, will pass to Mortgagee,
which, at its option, and as attorney-in-fact for Mortgagor,
may then make, settle and give binding acquittances for claims
under all such policies, and may assign and transfer such
policies or cancel or surrender them, applying any unearned
premium in such manner as Mortgagee may elect in its sole
discretion. The foregoing appointment of Mortgagee as
attorney-in-fact for Mortgagor is coupled with an interest,
and irrevocable. Notwithstanding the occurrence of any
casualty or the availability of any insurance proceeds,
Mortgagor shall pay the amounts due under this Mortgage, the
Notes and the other Loan Documents in the manner and at the
times required therein.
(h) In the event of a foreclosure of this Mortgage or
other transfer of title or assignment of the Property in
extinguishment, in whole or in part, of the debt secured
hereby, all right, title and interest of Mortgagor in and to
all policies of insurance (including, without limitation, any
right to unearned premiums) required or permitted by this
Section shall inure to the benefit of and pass to the
successor in interest to Mortgagor or the purchaser or grantee
of the Property.
(i) Notwithstanding the occurrence of any casualty or
the availability of any insurance proceeds, Mortgagor shall
pay the amounts due under this Mortgage, the Notes and the
other Loan Documents in the manner and at the times required
therein.
5. Escrow Account. At any time after a default by
Mortgagor hereunder, under the Notes or any under any other Loan
Document, at Mortgagee's option and immediately upon Mortgagee's
request, Mortgagor shall pay to Mortgagee, together with and in
addition to each regular installment of principal and/or interest
payable under the Notes, an amount deemed sufficient by Mortgagee
to provide Mortgagee with funds in an escrow account sufficient to
pay the taxes, assessments, insurance premiums and other charges
next due at least Thirty (30) days before the date the same are
due. Mortgagee shall not be liable for any interest on any such
funds held in the escrow account, and Mortgagee may co-mingle such
funds with other funds held by Mortgagee. At least Thirty (30)
days before the date the same are due, Mortgagor shall furnish to
Mortgagee an official statement of the amount of said taxes,
assessments, insurance premiums and other charges, and Mortgagee
shall pay the same, but only if sufficient funds remain in the
escrow account. In the event of any deficiency in the escrow
account, Mortgagor shall upon notice from Mortgagee immediately
deposit with Mortgagee such additional funds as Mortgagee may deem
necessary to cure the deficiency, in its sole discretion. If
Mortgagee elects to pay any such taxes, assessments, insurance
premiums or other charges notwithstanding the escrow account
deficiency, then all sums advanced by Mortgagee in excess of the
escrow account balance shall be subject to the Advance Provision.
An official receipt for such sums shall be conclusive evidence of
Mortgagee's payment and of the validity of the tax, assessment,
insurance premium or other charge so paid. In the event of any
default under this Mortgage, the Notes or any other Loan Document,
Mortgagee, at its option, may apply any or all funds in the escrow
account against any other sums due under this Mortgage, the Notes
or any other Loan Document, in any order of priority as Mortgagee
may deem appropriate, in its sole discretion. Upon payment in full
of the Notes and any other amounts due under the Loan Documents,
the funds remaining in the escrow account (if any) shall be paid to
the record owner of the Property encumbered by this Mortgage as of
the date of such full payment.
6. Maintenance and Repair. Mortgagor shall do everything
necessary to maintain the Property in good condition and repair,
shall operate the Property in a first-class manner, shall not
commit or suffer any waste, impairment, abandonment or
deterioration of the Property, shall promptly pay all utility fees
for services provided to the Property; and shall comply with (or
cause compliance with) all applicable restrictive covenants and all
statutes, ordinances and requirements of any governmental
authorities having jurisdiction over the Property or the use
thereof. If Mortgagor shall fail, neglect or refuse to repair or
maintain the Property as aforesaid, then Mortgagee may, at its
option, undertake such repairs or maintenance, and any funds
advanced therefor by Mortgagee shall be subject' to the Advance
Provision.
7. Security Agreemene. This Mortgage is a "security
agreement" and creates a "security interest" in favor of Mortgagee
as a "secured party" with respect to all property included in or
on, or relating to, in any manner whatsoever, the Property, which
is covered by the Uniform Commercial Code as adopted by the State
of Florida, as it may hereafter be modified, amended or substituted
("UCC"). Mortgagor hereby grants unto Mortgagee a security
interest in and to all of the property (collectively, the
"Collateral") described in this Mortgage, the Assignment and the
Financing Statements filed with the Florida Secretary of State and
with the Clerk of the Circuit Court of Collier County, Florida on
or about the date hereof, and any renewals, extensions or
replacements thereof (collectively, the "Financing Statements").
Mortgagee shall have all rights with respect to such Collateral
which is subject to the security interest afforded by the UCC in
addition to, and not in limitation of, the other rights afforded
Mortgagee hereunder. Upon default under this Mortgage or any other
Loan Document, Mortgagee may, at its option, pursue any and all
rights and~remedies available to a secured party with respect to
any portion of the Collateral so covered by the UCC, or Mortgagee
may, at its option, proceed as to all or any part of the Property
in accordance with Mortgagee's rights and remedies in respect of
real property. Mortgagor and Mortgagee agree that the mention of
any portion of the Property in the Financing Statement filed in the
records normally pertaining to personal property shall not derogate
from or impair in any way their declared intention that all items
of Collateral described in this Mortgage, the Assignment and the
Financing Statements are part of the real estate encumbered hereby
to the fullest extent permitted by law, regardless of whether any
such item is physically attached to the improvements or whether
serial numbers are used for the better identification of certain
items of equipment. Specifically, the mention in any such
Financing Statement of (a) the rights in or to the proceeds of any
insurance policy, (b) any award in eminent domain proceedings for
a taking or for loss of value, (c) Mortgagor's interest as lessor
in any present or future lease or right to income growing out of
the use or occupancy of the Property, or any part thereof, whether
pursuant to lease or otherwise, or (d) any other item included in
the definition of the Collateral, shall never be construed to alter
any of the rights of Mortgagee as determined by this Mortgage or to
impugn the priority of Mortgagee's lien and security interest with
respect to the Property; such mention in a Financing Statement is
declared to be for the protection of Mortgagee in the event any
court shall hold that notice of Mortgagee's priority of interest
with respect to any such portion of the Collateral must be filed in
the UCC records in order to be effective against or to take
priority over any particular class of persons, including, without
limitation, the federal government and any subdivision or
instrumentality of the federal government. This Mortgage or a copy
hereof, or any Financing Statement, shall be sufficient as a
financing statement under the UCC. Mortgagor agrees to make,
execute and deliver to Mortgagee, in form and content satisfactory
to Mortgagee, such financing statements and further assurances as
Mortgagee may, from time to time, consider necessary to create,
protect or preserve Mortgagee's security interest, and Mortgagor
agrees to pay the cost of filing and/or recording same in all
public offices where necessary or where required by Mortgagee.
8. Assiqnment of Ren%s. As further security for the
repayment of the Notes and the payment and performance of
Mortgagor's other obligations under the Loan Documents, Mortgagor
hereby assigns and transfers to Mortgagee all rents, leases,
subleases, issues, proceeds and profits (collectively, the
"Assigned Rents") of the Property, and all right, title and
interest of Mortgagor in and under the Assigned Rents, and any
extensions and.renewals thereof, now or hereafter affecting the
~roperty. Although Mortgagor and Mortgagee intend that this
Instrument shall be a present assignment, it is agreed that as long
as no default shall exist under the Notes, this Mortgage or any
other Loan Document, Mortgagor may collect Assigned Rents for not
more than each current month in advance, but upon the occurrence of
any such default, or at any time during its continuance, all right
of Mortgagor to collect or receive Assigned Rents shall wholly
terminate upon written notice from Mortgagee. Mortgagor agrees to
execute any additional document(s) or instrument(s) as Mortgagee
may require in furtherance of the terms hereof, within Five (5)
days after any request by Mortgagee. Any subsequent assignment of
the Assigned Re,ts to any party other than Mortgagee shall, at all
times, be inferior and subordinate to the assignment granted hereby
and to the rights of Mortgagee herein, provided, however, that no
such subsequent assignment of the Assigned Rents shall be made by
Mortgagor without the prior written consent of Mortgagee, which
Mortgagee may give or deny in its sole discretion.
Mortgagor hereby irrevocably appoints Mortgagee its true and
lawful attorney-in-fact, at the option of Mortgagee, at any time
and from time to time, to demand, receive and enforce payment, give
receipts, releases and satisfactions, and to sue, in the name of
Mortgagor or Mortgagee, for all such Assigned Rents. Mortgagor,
however, shall have the right to collect such Assigned Rents (but
not more than One [1] month in advance) unless Mortgagor is in
default hereunder, under the Notes or under any other Loan
Document. This sslgnment of the Assigned Rents is intended to be
a '
an absolute assignment, not merely the passing of a security
interest. If required by Mortgagee, Mortgagor will specifically
assign to Mortgagee all such leases whether now existing or
hereafter created.
Upon any default under this Mortgage or any other Loan
Document, Mortgagee may, at any time, without notice, either in
person, by agent or by a receiver appointed by a court, and without
regard to the adequacy of any security for the indebtedness hereby
secured, enter upon and take possession of the Property, or any
part thereof, and Mortgagee. may, in its own name, sue for or
otherwise collect such Assigned Rents, including, without
less the costs and expenses of operation and collection apply same,
limitation, past due and unpaid Assigned Rents, a~d (including,
without limitation, attorneys, fees), upon any indebtedness secured
hereby and in such order as Mortgagee may determine, in its sole
discretion. The collection of such Assigned Rents, or the entering
upon and taking possession of the Property, or any part thereof, or
the application thereof as aforesaid, shall not cure or waive any
such default or invalidate any act done in response to such
default. In addition (and not as an election of remedies), upon
the occurrence of any such default, Mortgagee may apply for a court
order requiring Mortgagor to deposit all Assigned Rents into the
court registry pursuant to Florida Statute Section 697.07, as
amended. Mortgagor hereby consents to entry of such an order upon
the sworn ex parte motion of Mortgagee that such a default has
occurred.
Mortgagor shall comply with and observe its obligations as
landlord under all leases or subleases affecting the Property or
any part thereof, whether now in existence or entered into in the
future. Mortgagor shall, if requested, furnish Mortgagee with
executed copies of all leases and subleases now or hereafter
created on the Property, or any part thereof, and all such leases
and subleases must be in form and substance acceptable to
Mortgagee. Mortgagor shall not modify, surrender or terminate,
either orally or in writing, any lease or sublease now existing or
hereafter created upon the Property, or any part thereof, and
Mortgagor shall not permit an assignment or sublease thereof
without the prior written consent of Mortgagee, which consent shall
not be unreasonably withheld.
9. Further Encumbrances. Mortgagor shall not grant any
other lien, lease or mortgage on all or any part of the Property or
any interest therein, nor make any further assignment of the
Assigned Rents of the Property without the prior written consent of
Mortgagee, which Mortgagee may give or deny in its sole discretion;
any such unpermitted lien or mortgage or assignment by Mortgagor
shall entitle Mortgagee to declare all amounts due under the Notes
and other Loan Documents immediately due ~and payable and to
foreclose this Mortgage. Any such other lien or mortgage or
assignment shall be junior to this Mortgage, and shall be subject
to all renewals, extensions, modifications, releases, interest rate
increases, future advances, changes or exchanges permitted by this
Mortgage, all without the joinder or consent of such junior lien
holder or mortgagee or assignee and without any obligation on
Mortgagee's part to give notice of any kind thereto. Mortgagor
shall maintain in good standing any other mortgage or encumbrance
to secure debt affecting any part of the Property from time to
time, and shall not commit or permit or suffer to occur any default
thereunder, nor shall Mortgagor accept any future advance under or
modify the terms of any such mortgage or encumbrance which may then
be superior to the lien of this Mortgage; any default under any
such mortgage or encumbrance shall be a default hereunder. Except
for encumbrances permitted by Mortgagee, Mortgagor shall not commit
or permit or suffer to occur any act or omission whereby any of the
security represented by this Mortgage shall be impaired or
threatened, or whereby any of the Property or any interest therein
shall become subject to any attachment, judgment, lien, charge or
other encumbrance whatsoever, and Mortgagor shall immediately cause
any such attachment, judgment, lien, charge or other encumbrance to
be discharged or otherwise bonded or transferred to other security.
Mortgagor shall not directly or indirectly do anything or take any
action which might prejudice any of the right, title or interest of
Mortgagee in or to any of the Property or impose or create any
direct or indirect obligation or liability on the part of Mortgagee
with respect to any of the Property.
10. Prohibited Transfers. It is acknowledged and agreed by
Mortgagor that as part of the inducement to Mortgagee to make the
loan evidenced by the Notes and secured by this Mortgage, Mortgagee
has relied upon the credit-worthiness and the reliability of
Mortgagor. Mortgagor shall not cause or permit or suffer to occur
any of the following events without the prior written consent of
Mortgagee, which Mortgagee may give or deny in its sole discretion,
and if any of the same shall occur without such consent, then
Mortgagee shall have the right, without limitation, to declare all
amounts due under the Notes and other Loan Documents immediately
due and payable and to foreclose this Mortgage: (i) if all or any
part of the legal or equitable or beneficial title to all or any
part of the Property or any interest therein shall in any manner
whatsoever be sold, conveyed, leased, transferred or further
encumbered, either voluntarily or by operation of law, except for:
(a) the sale and conveyance of single family homes to third party
purchasers pursuant to contracts in form approved by Mortgagee in
accordance with the Loan Agreement, and (b) any conveyance allowed
under Section 31 hereof; or (ii) in the case of any part of the
Property directly or indirectly owned by a corporation, limited or
general partnership, joint venture, trust or other business entity,
if any stock or partnership interest or joint venture interest or
beneficial interest in such owner shall be sold, conveyed, leased
or transferred (except if between Paula J. Davis and John W.
Frasco), or if such stock or partnership interest or joint venture
interest or beneficial interest shall be assigned, pledged,
hypothecated, mortgaged or otherwise encumbered. If any person or
entity should obtain any interest in all or any part of the
Property, pursuant to execution or enforcement of any lien,
9
security interest or other' right, whether superior, equal or
subordinate to this Mortgage or the lien hereof, such event shall
be deemed to be a transfer by Mortgagor and a default under this
Mortgage and all other Loan Documents.
11. Further Assurances. From time to time and on demand,
MortgAgor shall execute and deliver to Mortgagee (and pay the costs
of preparing and recording, if applicable) any further instruments
or documents reasonably required by Mortgagee to reaffirm, correct
or perfect the lien and security interest of Mortgagee in all of
the Property and all additions, replacements and proceeds,
including, without limitation, mortgages, security agreements,
financing statements, assignments and renewal and substitution
notes.
12. Default. At Mortgagee's option, all of the principal and
interest and other sums secured by this Mortgage shall immediately
or at any time thereafter become due and payable without notice to
Mortgagor, and Mortgagee shall immediately have all the rights
accorded Mortgagee by law and hereunder to foreclose this Mortgage
and otherwise to enforce this Mortgage and any other Loan Document,
upon the occurrence of any one or more of the following defaults:
(a) the failure of Mortgagor to pay Mortgagee any sum due under the
Notes within Ten (10) days after such payment is due, (b) the
failure of Mortgagor to pay Mortgagee any other amount due under
any other Loan Document within Ten (10) days after such payment is
due, (c) the failure of Mortgagor to pay any tax, assessment,
utility charge, or other charge against the Property or any part
thereof as and when required by this Mortgage, (d) any waste,
impairment, abandonment, deterioration, removal, demolition,
material alteration or enlargement of any existing improvements, or
the commencement of construction of any new improvements, without
the prior written consent of Mortgagee, (e) the failure to keep in
force the policies of insurance required by this Mortgage or any
other Loan Document, (f) Mortgagor's failure or refusal to provide
any estoppel certificate within the time required by this Mortgage,
(g) Mortgagor's recordation of any notice limiting the amount of
future advances that may be secured by this Mortgage, (h) any sale,
transfer (whether voluntary or by-operation of law), conveyance,
lease or further encumbrance of all or any part of the Property, or
any interest therein, except for: [ii the sale and conveyance of
single family homes to third party purchasers pursuant to contracts
in form approved by Mortgagee in accordance with the Loan
Agreement, and [ii] any conveyance allowed under Section 31 hereof;
or any sale, transfer (whether voluntary or by operation of law),
conveyance, lease of further encumbrance of all or any part of any
ownership interest in Mortgagor (except if between Paula J. Davis
and John W. Frasco), or the additional assignment of all or any
part of the Assigned Rents arising from the Property,
(i) Mortgagor's failure to remove any involuntary lien on the
Property or any part thereof within Twenty (20) days after its
filing, or the filing of any suit against the Property or any part
thereof upon any claim of lien other than this Mortgage (whether
superior or inferior to this Mortgage), (j) Mortgagor's failure to
comply within Ten (10) days with any requirement, order or notice
of violation of a law, ordinance, or regulation issued or
promulgated by any political subdivision or governmental department
claiming jurisdiction over the Property or any operation conducted
on the Property (or, if such order or notice provides a time period
for compliance, Mortgagor's failure to comply within such time
period), or, in the case of a curable noncompliance requiring
longer than the applicable time period for its cure, Mortgagor's
failure to commence to comply with said order or notice within said
period or failure thereafter to pursue such cure diligently to
completion, (k) the issuance of any order by the State of Florida,
or any subdivision, instrumentality, administrative board or
department thereof, declaring unlawful or suspending any operation
conducted by Mortgagor or any "Obligor" (as hereinafter defined) on
10
the Property, (1) if any representation, warranty, affidavit,
certificate or statement made or delivered to Mortgagee by or on
behalf of Mortgagor, or any other person or entity liable under the
Loan Documents, including, without limitation, any guarantor
("Obligor"), from time to time in connection with the Notes, this
Mortgage or any other Loan Document shall prove false, incorrect or
misleading in any respect deemed material by Mortgagee, (m) the
death or mental or physical incapacity of any Obligor who is a
natural person (provided that Mortgagee, in its sole discretion,
determines that its collateral hereunder is thereby materially
impaired), or the dissolution or merger or consolidation or
termination of existence of Mortgagor or any Obligor, or the
failure or cessation or liquidation of the business of Mortgagor or
any Obligor, (n) any default by any Obligor under the Loan
Documents in the payment of any indebtedness (whether direct or
contingent and whether matured or accelerated) to Mortgagee or to
any person whomsoever, or if Mortgagor or any Obligor shall become
insolvent or unable to pay its debts as they become due, (o) the
disposition or transfer or exchange of all or substantially all of
Mortgagor's or any Obligor's assets for less than fair market
value, or the issuance of any levy, attachment, charging order,
garnishment or other process against any property of Mortgagor or
any Obligor, or the filing of any lien against any such property,
provided, however, that if Mortgagor or any Obligor contests in
good faith the validity of any such lien, encumbrance or charge,
and deposits acceptable security with a court of competent
jurisdiction sufficient to eliminate the lien, encumbrance or
charge as a lien upon such property within ten (10) days, then
Mortgagor will not be in default hereunder, (p) if Mortgagor or any
Obligor shall make an assignment for the benefit of creditors, file
a petition in bankruptcy, apply to or petition any tribunal for the
appointment of a custodian, receiver, intervenor or trustee for
Mortgagor or such Obligor or a substantial part of Mortgagor's or
such Obligor's assets, or if Mortgagor or any Obligor shall
commence any proceeding under any bankruptcy, arrangement,
readjustment of debt, dissolution or liquidation law or statute of
any jurisdiction, whether now or hereafter in effect, or if
Mortgagor or any Obligor shall by act or omission approve, consent
to or acquiesce in the filing of any such petition or application
against Mortgagor or such Obligor or the appointment of any such
custodian, receiver, intervenor or trustee or the commencement of
any such proceeding against Mortgagor or such Obligor or the entry
of an order for relief with respect to Mortgagor or such Obligor,
or if any such petition or application shall have been filed or
proceeding commenced against Mortgagor or any Obligor which remains
undismissed for Thirty (30) days or more or in which an order for
relief is entered, or Mortgagor or any Obligor shall suffer any
such appointment of a custodian, receiver, intervenor or trustee to
continue undischarged for Thirty (30) days or more, (q) if
Mortgagor or any Obligor shall have concealed, transferred,
removed, or permitted to be concealed, transferred or removed, any
part of Mortgagor's or such Obligor's property with intent to
hinder, delay or defraud any of Mortgagor's or such Obligor's
creditors, or if Mortgagor or any Obligor shall have made or
suffered a transfer of any of Mortgagor's or such Obligor's
properties which may be invalid under any bankruptcy, fraudulent
conveyance, preference or similar law, or if Mortgagor or any
Obligor shall have made any transfer of Mortgagor's or such
Obligor's properties to or for the benefit of any creditor at a
time when other creditors similarly situated have not been paid,
(r) the existence of any uncured default under any other mortgage
or encumbrance affecting any part of the Property then encumbered
by this Mortgage, or Mortgagor's acceptance of any future advance
under, or modification of the terms of, any such other mortgage or
encumbrance which may then be superior to the lien of this
Mortgage, (s) Mortgagee's election to declare the amounts due and
payable under the provisions of any other Loan Document, (t) if, at
any time, Mortgagee deems itself insecure for any reason
11
whatsoever, or if any change or event shall occur which in
Mortgagee's sole judgment impairs any security for repayment of the
Notes, increases Mortgagee's risk in connection with the repayment
of the Notes, or indicates that Mortgagor or any Obligor may be
unable to perform Mortgagor's or such Obligor's obligations under
any Loan Document, (u) any change in the financial condition of
Mortgagor or any Obligor subsequent to the date hereof, which is,
in the sole discretion of Mortgagee, material and adverse, (v) any
default in the observance or performance of any other covenant or
agreement of Mortgagor or any Obligor in this Mortgage or any other
Loan Document, the occurrence of any other event prohibited by the
terms of this Mortgage or any other Loan Document, or the violation
of any other provision of this Mortgage or any other Loan Document,
which default continues for a period of Ten (10) days.
No consent or waiver expressed or implied by Mortgagee with
respect to any default under this Mortgage shall be construed as a
consent or waiver with respect to any further default of the same
or a different nature; and no consent or waiver shall be deemed or
construed to exist by reason of any curative action initiated by
Mortgagee or any other course of conduct or in any other manner
whatsoever except by a writing duly executed by Mortgagee, and then
only for the single occasion to which such writing is addressed.
In order to declare the Notes due and payable because of
Mortgagor's failure to pay any tax, assessment, insurance premium,
charge, liability, obligation or encumbrance upon the Property as
required by .this Mortgage, or because of any other default,
Mortgagee shall not be required to pay the same or to advance funds
to cure the default, notwithstanding Mortgagee's option under this
Mortgage or any other Loan Document to do so; no such payment or
advance by Mortgagee shall be deemed or construed as a waiver of
Mortgagee's right to declare the Notes due and payable on account
of such failure or other default.
13. Reme4ies. The rights and remedies of Mortgagee under this
Mortgage or any other Loan Document or applicable law shall be
cumulative and concurrent and may be pursued separately,
successively or together against Mortgagor and/or any Obligor(s),
the Property, any other collateral securing repayment of the Notes,
or any one or more of the foregoing, all at the sole discretion of
Mortgagee, and may be exercised as often as occasion therefor shall
arise, all to the maximum extent permitted by law. Mortgagee's
pursuit of any remedy shall not preclude pursuit of any other
remedy until Mortgagee shall have recovered all sums due Mortgagee,
together with the appropriate interest thereon and all costs of
collection, including, without limitation, all attorneys' and
paralegal fees and costs incurred by Mortgagee through and
including all negotiations, trial, appellate, post-judgment,
bankruptcy and/or other proceedings. Neither Mortgagor nor anyone
claiming through or under Mortgagor shall set up, claim or seek to
take advantage of any appraisement, valuation, stay, moratorium,
extension, exemption or redemption laws, now or hereafter in force,
in order to prevent or hinder the enforcement or foreclosure of
this Mortgage or the sale of the Property. To the maximum extent
permitted by law, Mortgagor, for itself and all who may claim
through or under Mortgagor, hereby severally waive the benefit of
all such laws and waive any and all rights to have the Property or
any other collateral securing repayment of the Notes marshalled
upon any foreclosure of this Mortgage or any other instrument
securing repayment of the Notes, and hereby severally agree that
the Property and any such other collateral may be sold as an
entirety or in such parcels, in such manner, and in such order as
Mortgagee in its sole discretion may elect.
14. Foreclosure Aqainst Part of Property. Mortgagee shall
have the right to foreclose this Mortgage against all or any part
of the Property, without waiving its right to subsequently
foreclose against any other part or all of the remaining Property.
12
If Mortgagee elects to foreclose against only part of the Property,
then this Mortgage shall remain in full force and effect as to that
part of the Property not foreclosed.
15. Advances Hereunder. In the event of any default by
Mortgagor of any of the terms, provisions or conditions of this
Mortgage, the Notes or any other Loan Document, Mortgagee shall
have the right (but in no event the obligation), at its option, to
cure the default or take any other action Mortgagee deems necessary
or desirable to protect its security (including, without
limitation, the payment of any taxes, assessments, insurance
premiums, charges, liens or encumbrances required of Mortgagor
under this Mortgage or any other Loan Document), without thereby
waiving any rights or remedies otherwise available to Mortgagee.
If Mortgagee shall elect to advance at any time any sum(s) for the
protection of its security or for any other reason permitted or
provided by any of the terms of this Mortgage or any other Loan
Document, then such sum(s) shall be deemed amounts due under the
Notes, shall be repaid by Mortgagor on demand, shall be secured by
this Mortgage and shall bear interest until paid at the highest
rate allowed by applicable law, commencing on the date they are
advanced by Mortgagee. Such sum(s) shall be deemed advanced under
this Mortgage and secured hereby, as if advanced on the date this
Mortgage was executed, and shall be superior to any right or title
to, interest in, or claim upon all or any portion of the Property
junior to the lien of this Mortgage.
16. Receiver. In any action to foreclose this Mortgage, or
upon any other default hereunder, or upon the actual or threatened
waste to any part of the Property, Mortgagee shall have the right
to apply, without notice on an ex parte basis, for the appointment
of a receiver of the Property and the Assigned Rents thereof, and
Mortgagee shall be entitled to the appointment of such a receiver
as a matter of right, without consideration of the value of the
Property as security for the amounts due Mortgagee or the solvency
of Mortgagor or any Obligor. To the extent permitted by law,
Mortgagor hereby waives any right to object to the appointment of
a receiver as aforesaid and expressly consents that such
appointment shall be made as an admitted equity and as a matter of
absolute right to Mortgagee.
17. Fees and Expenses. Mortgagor shall pay any and all costs
and expenses, including, without limitation, all attorneys' and
paralegal fees and costs incurred by Mortgagee, through and
including all negotiations, trial, appellate, post-judgment,
bankruptcy and/or other proceedings, incurred by Mortgagee to
sustain the lien of this Mortgage or its priority, to protect or
enforce any of Mortgagee's rights under this Mortgage or under any
other Loan Document, to recover any indebtedness secured hereby, to
contest or collect any award or payment in connection with the
taking or condemnation of all or any part of the Property, or for
any title examination or abstract preparation or appraisal or title
insurance policy relating to the Property, and all such sums shall
be subject to the Advance Provision.
18. Indem-it¥. In the event Mortgagee shall be named as
a party to any lawsuit brought at any time against Mortgagor or
with respect to the Property or this Mortgage or the Loan
Documents, then regardless of the merits of such lawsuit, Mortgagor
shall defend Mortgagee and indemnify and hold Mortgagee fully
harmless from any and all claims, demands, damages, liabilities,
judgments, lOsses, costs and expenses, including, without
limitation, all attorneys' and paralegal fees and costs incurred by
Mortgagee, through and including all negotiations, trial,
appellate, post-judgment, bankruptcy and/or other proceedings,
incurred by Mortgagee.
13
19. Condenmatio,. Immediately upon obtaining knowledge of
the institution.or pending institution of any proceeding for the
condemnation of the Property or any part thereof, Mortgagor shall
notify Mortgagee thereof. Mortgagee may participate in any such
proceedings and may be represented therein by counsel of its
selection, and Mortgagor will deliver to Mortgagee all instruments
requested by Mortgagee from time to time to permit or facilitate
such participation. In the event of any such condemnation
proceeding, the award or compensation payable is hereby assigned to
and shall be paid to Mortgagee, and Mortgagee shall not be
obligated to question the amount of any such award or compensation.
At Mortgagee's option, all or any part of the award or compensation
shall be applied toward payment of the Notes and other amounts that
may be due under the Loan Documents (in any order of priority
Mortgagee may deem appropriate in its sole discretion) or shall be
disbursed to Mortgagor from time to time for the restoration of the
Property in a similar manner as disbursements under a construction
loan; Mortgagee shall not be obligated to see to the proper
application by Mortgagor of any such disbursement. If all of the
Property is so taken but the award or compensation is insufficient
to pay the Notes and other amounts that may be due under the Loan
Documents in full, then, at Mortgagee's option, the unpaid balance
shall be immediately due and payable.
20. ~ocumentar¥ S~mps and Intangible Taxe~. If at any
time the State of Florida shall determine that the intangible tax
paid in connection with this Mortgage is insufficient or that the
documentary stamps affixed hereto are insufficient, and that
additional ntanglble tax should be paid or that additional stamps
i '
should be affixed, then Mortgagor shall pay for the same, together
with any 'interest or penalties imposed in connection with such
determination, and Mortgagor hereby agrees to indemnify and hold
Mortgagee harmless therefrom. If any such sums shall be advanced
by Mortgagee, they shall be subject to the Advance Provision.
21. No Shift of Taxes. If any federal, state or local law
shall hereafter be enacted which (a) for the purpose of ad valorem
taxation shall deduct the amount of any lien from the value of real
property, or (b) shall impose on Mortgagee the payment of all or
any part of the taxes or assessments or charges required to be paid
hereunder by Mortgagor, or (c) shall change in any way the laws for
the taxation of mortgages or debts secured thereby or Mortgagee's
interest in the Property, or shall change the manner of collecting
such taxes, so as to affect this Mortgage or the debt secured
hereby or the holder thereof, then, upon demand, Mortgagor shall
pay such taxes or assessments or charges imposed on Mortgagee or
shall reimburse Mortgagee therefor; provided, however, that if in
the opinion of Mortgagee's counsel the requirement that Mortgagor
make such payments might be unlawful or might result in the
imposition of interest in excess of the maximum lawful rate, then
Mortgagee shall have the right to declare the amounts secured
hereunder to be due and payable Thirty (30) days after notice
thereof to Mortgagor.
22. Consent to Chanqes. Mortgagor consents and agrees that,
at any time and from time to time without notice, (a) Mortgagee and
the owner(s) of any collateral then securing repayment of the Notes
may agree to release, increase, change, substitute or exchange all
or any part of such collateral, and (b) Mortgagee and any person(s)
and/or entity(-ies) then primarily liable for repayment of the
Notes may agree to renew, extend or compromise the Notes in whole
or in part or to modify the terms of the Notes in any respect
whatsoever. Mortgagor agrees that no such release, increase,
change, substitution, exchange, renewal, extension, compromise or
modification, no sale of the Property or any part thereof, no
forbearance on the part of Mortgagee, and no other indulgence given
by Mortgagee (whether with or without consideration), shall relieve
or diminish in any mannerthe liability of Mortgagor, nor adversely
14
affect the priority of this Mortgage, nor limit or prejudice or
impair any right.or remedy of Mortgagee. Mortgagor and all those
claiming by, through or under it hereby jointly and severally waive
any and all right to prior notice of, and any and all defenses or
claims based upon, any such release, increase, change,
substitution, exchange, renewal, extension, compromise,
modification, sale, forbearance or indulgence.
23. Estoppel Letters and Inform~tio,. Within Three (3) days
after request in person or within Five (5) days after request by
mail, Mortgagor shall furnish to Mortgagee a written statement,
duly acknowledged, of the amount of principal and interest and
other sums then owing under the Notes and other Loan Documents, and
whether any offsets, counterclaims or defenses exist thereto.
Mortgagor shall promptly furnish to Mortgagee any financial or
other information regarding Mortgagor or the Property required by
any Loan Document or which Mortgagee may reasonably request from
time to time.
24. Environmental Laws. Mortgagor represents and warrants to
Mortgagee that Mortgagor has undertaken an appropriate inquiry into
the previous ownership and uses of the Property consistent with
good commercial or customary practice in an effort to minimize
liability with respect to any substances defined as or included in
" "hazardous wastes,
the definition of "hazardous substances, ..
"hazardous materials," "toxic substances," "contaminants" or other
pollution under any applicable federal, state, local or other laws,
ordinances, rules or regulations now or hereafter in effect
("Hazardous Materials"). Mortgagor represents and warrants that
the Property is presently free from contamination by Hazardous
Materials and that the Property and the activities conducted
thereon do not pose any significant hazard to human health or the
environment or violate any applicable federal, state, local or
other laws, ordinances, rules or regulations pertaining to
Hazardous Materials or industrial hygiene or environmental
conditions ("Environmental Laws"). Mortgagor shall not cause or
permit the Property to be used for the generation, handling,
storage, transportation, disposal or release of any Hazardous
Materials except as exempted or permitted under applicable
Environmental Laws, and Mortgagor shall not cause or permit the
Property.or any activities conducted thereon to be in violation of
any applicable Environmental Laws. Mortgagor agrees to indemnify
Mortgagee and hold Mortgagee and its directors, officers,
employees, successors and assigns harmless from and against any and
all claims, losses, damages (including all foreseeable and
unforeseeable consequential damages), liabilities, fines,
penalties, charges, interest, administrative or judicial
proceedings and orders, judgments remedial action requirements,
enforcement actions of any kind, and all costs and expenses
incurred in connection therewith (including, without limitation,
attorneys' and paralegal fees and costs incurred by Mortgagee
through and including all negotiations, trial, appellate, post-
judgment, bankruptcy and/or other proceedings), directly or
indirectly resulting in whole or in part from the violation of any
Environmental Laws applicable to the Property or any activity
conducted thereon, or from any past, present or future use,
generation, handling, storage,.transportation, disposal or release
of Hazardous Materials at or in connection with the Property, or
any decontamination, detoxification, closure, cleanup or other
remedial measure required with respect to the Property under any
Environmental Laws. Ail sums paid and costs incurred by Mortgagee
with respect to the foregoing matters shall be subject to the
Advance Provision. This indemnity shall survive the full payment
and performance of the Loan Documents and the satisfaction of this
Mortgage, and shall inure to the benefit of any transferee of title
to the Property through foreclosure of this Mortgage or through
deed in lieu of foreclosure.
15
25. NO Usur~. In no event shall any agreed to or actual
exaction charged, reserved or taken as an advance or forbearance by
Mortgagee as consideration for the Notes exceed the limits imposed
or provided by the law applicable from time to time on the Notes
for the use or detention of money or for forbearance in seeking its
collection, and Mortgagee hereby waives any right to demand any
such excess. In the event that the interest provisions of the Loan
Documents or any exactions required thereunder shall result at any
time or for any reason in an effective rate of interest that
transcends the maximum interest rate permitted by applicable law,
then without further agreement or notice, the obligation to be
fulfilled shall automatically be reduced to such limit and all sums
received by Mortgagee in excess of those lawfully collectible as
interest shall be applied against the principal of the Notes
immediately upon Mortgagee's receipt thereof with the same force
and effect as though the payor had specifically designated such
extra sums to be so applied to principal and Mortgagee had agreed
to accept such extra payment(s) as a premium-free prepayment or
prepayments; if such excess sums exceed the then principal balance
of the Notes, then such excess sums shall be refunded to the payor.
26. Inspection and Watchmen. Mortgagee and any persons
authorized by Mortgagee shall have the right, from time to time at
the discretion of Mortgagee, to enter and inspect the Property. At
any time after default under the terms of this Mortgage or any
other Loan Document, if any of the improvements or equipment on the
Property shall be unprotected or unguarded, or if any of such
improvements shall be allowed to remain vacant or deserted, then at
its option, Mortgagee may employ watchmen for the Property and
expend any monies deemed necessary by Mortgagee to protect the same
from waste, vandalism and other hazards, depredation or injury, and
any sums expended by Mortgagee for such purpose shall be subject to
the Advance Provision.
27. Abstracts An4/Or Other Title Doc,,mentatio-. Upon request
by Mortgagee, Mortgagor shall deliver to Mortgagee or its
designated agent the abstract or abstracts of title and/or all
other title documentation covering the Property as further security
for repayment of the Notes, which abstract(s) and/or other title
documentation shall remain in the possession of Mortgagee or its
agent at all times until all sums secured by this Mortgage are paid
in full. In the event of a foreclosure of this Mortgage or other
transfer of title to the Property, all right, title and interest of
Mortgagor in and to such abstract(s) and/or other title
documentation shall pass to the foreclosure purchaser or other
transferee.
28. No Partnership. Mortgagor and Mortgagee hereby
acknowledge and agree that Mortgagee is not, has never been, and
shall not be deemed a partner or joint venturer of Mortgagor with
respect to the Property, and that the relationship of Mortgagee to
Mortgagor is, has always been, and shall continue to be strictly
the role of a lender. Mortgagor hereby (a) waives and relinquishes
any and all claims, demands, counterclaims and/or defenses alleging
the existence of any partnership, joint venture or other fiduciary
relationship between it and Mortgagee, and (b) agrees to indemnify
and hold Mortgagee harmless against any and all losses, damages,
penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other fees, costs and expenses (including,
without limitation, attorneys' and paralegal fees and costs through
and including all negotiations, trial, appellate, post-judgment,
bankruptcy and/or other proceedings) that Mortgagee may sustain as
the result of any such allegation by any person whomsoever.
29. Representations and Warranties. In order to induce
Mortgagee to exten~ the credit secured hereby, Mortgagor represents
and warrants that: (a) there are no actions, suits or proceedings
pending or threatened against, brought by, or affecting Mortgagor
16
or any Obligor or any portion of the Property or involving the
validity or enforceability of this Mortgage or the priority of its
lien, before any court of law or equity or any tribunal,
administrative board of governmental authority, and neither
Mortgagor nor any Obligor is in default under any other
indebtedness or with respect to any order, writ, injunction,
decree, judgment or demand of any court or any governmental
authority; (b) the execution and delivery of this Mortgage and all
other Loan Documents do not and shall not (i) violate any
provisions of any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award applicable to Mortgagor
or any Obligor, nor (ii) result in a breach of, or constitute a
default under, any indenture, bond, mortgage, lease, instrument,
credit agreement, undertaking, contract or other agreement to which
Mortgagor or any Obligor is a party or by which any of them or
their respective properties may be bound or affected; (c) this
Mortgage and all other Loan Documents constitute valid and binding
obligations of the Mortgagor and Obligor(s) executing the same,
enforceable against them in accordance with their respective terms;
(d) all financial statements of Mortgagor and the Obligors
previously delivered to Mortgagee have been prepared in accordance
with generally accepted accounting principles consistently applied
and fairly present the correct respective financial conditions of
Mortgagor and the Obligors as of their respective dates, and the
foregoing shall be true with respect to all financial statements of
the Mortgagor and Obligors delivered to Mortgagee hereafter;
(e) there is no fact that Mortgagor or the Obligors have not dis-
closed to Mortgagee in writing that could materially, adversely
affect their respective properties, businesses or financial condi-
tions or the Property or any other collateral for repayment of the
Notes; (f) Mortgagor and/or the Obligors have duly obtained all
permits, licenses, approvals and consents from, and made all
filings with, any governmental authority (and the same have not
lapsed nor been rescinded or revoked) which are necessary in
connection with the execution or delivery or enforcement of this
Mortgage or any other'Loan Document or the performance of any of
Mortgagor's or Obligor's obligations thereunder; (g) the proceeds
of the Notes are not being used to purchase or carry any "margin
stock" within the meaning of Regulation "U" of the Board of
Governors of the Federal Reserve System, nor to extend credit to
others for that purpose; and (h) each extension of credit secured
by this Mortgage is exempt from the provisions of the Federal
Consumers Credit Protection Act (Truth-in-Lending Act) and
Regulation "Z" of the Board of Governors of the Federal Reserve
System, because Mortgagor is an entity fully excluded therefrom,
and/or because said extension of credit is only for business or
commercial purposes of Mortgagor and is not being used for
personal, family, household or agricultural purposes.
30. Future Advances. This Mortgage shall secure such
future advances as may be made by Mortgagee, at its option and for
any purpose, within twenty (20) years from the date of this
Mortgage. Ail such future advances shall be secured to the same
extent as if made on the date of the execution of this Mortgage,
and shall take priority as to third persons without actual notice
from the time this Mortgage is filed for record as provided by law.
The total amount of indebtedness secured by this Mortgage may
decrease or increase from time to time, but the total un~aid
balance so secured at any one time shall not exceed the maximum
principal amount of twice the original principal amount of the
Notes, plus interest and any disbursements made for the payment of
taxes, levies or insurance on the Property, with interest on those
disbursements, plus any increase in the principal balance as the
result of negative amortization or deferred interest. Without the
prior written consent of Mortgagee, which Mortgagee may give or
deny in its sole discretion, Mortgagor shall not file for record
any notice limiting the maximum principal amount that may be
17
secured by this Mortgage to a sum less than the maximum principal
amount set forth in this paragraph.
31. Partial Releases. Upon Mortgagor's request, Mortgagee
will execute and deliver to Mortgagor partial releases of this
Mortgage, with respect to a portion of the Property upon which
Mortgagor has constructed a single family home (a "Lot"), provided
that: (i) Mortgagor delivers the partial release to Mortgagee, in
form and content satisfactory to Mortgagee, (ii) Mortgagor pays to
Mortgagee any reasonable attorneys' or other fees and expenses
incurred by Mortgagee in connection with the partial release, (iii)
there is no default under this Mortgage or any other Loan Document,
and (iv) Mortgagor pays to Mortgagee, in immediately available
funds, the amounts set forth in the Loan Agreement for such partial
release.
Mortgagor intends to convey to The Foundation of Pelican
Marsh, Inc., a Florida corporation not for profit (the
"Association"), the roads (the "Roa4s") within the Property.
Mortgagor intends to convey the Roads to the Association on or
about the time of Mortgagor's closing on its sale of the first home
constructed on the Property by Mortgagor to a third party purchaser
(the "First Closing"), and, provided that. Mortgagor is not then in
default under any Loan Document, Mortgagee agrees to release the
Roads from this Mortgage, at no cost, simultaneously upon the First
Closing; provided, however, that Mortgagor shall pay Mortgagee all
costs (including without limitation, attorney's fees) incurred by
Mortgagee in connection with its review and execution of any such
release and related documents. Except as set forth in this
paragraph and in the preceding paragraph, Mortgagee shall have no
obligation to release any other property from this Mortgage or
other Loan Documents until Mortgagor has paid Mortgagee a release
price, which must be acceptable to Mortgagee in its sole
discretion, or until the balance under the Land Loan Note has been
reduced to zero (-0-) and Mortgagee has no further funding
obligation under the Land Loan.
32. Miscellaneous.
(a) Notices. Any notices or other communications under
this Mortgage shall be in writing and shall be deemed given
and received when sent to the addresses set forth below (or to
such other address as such party may designate by notice given
in like fashion): (i) when personally delivered, upon receipt
or refusal of receipt, (ii) three (3) business days after
mailing by deposit with the United States Postal Service,
postage prepaid, by certified or registered mail, return
receipt requested, or (iii) one (1) business day after
acceptance for delivery by Federal Express or other nationally
recognized overnight delivery service:
If ~o Mortgagee:
COMERICA BANK
Commercial Real Estate I
500 Woodward Ave.
7th Floor
MC-3255
Detroit, Michigan 33431
Wi~h copies to:
Mr. Edward M. Cochran
Vice President
COMERICA BANK
1800 Corporate Blvd., N.W.
Boca Raton, Florida 33431
18
Warren J. Kozlow, Esq.
WARREN J. KOZLOW, P.A.
7000 West Palmetto Park Rd.
Suite 400
Boca Raton, Florida 33433
I£ ~o Nor~gagor:
Ms. Paula J. Davis, President
IVY POINTE, INC.
9051Tamiami Trail North
Suite 202
Naples, Florida 33963
Bruce G. Fedor, Esq.
ANNIS, MITCHELL, COCKEY, EDWARDS & ROEHN, P.A.
8889 Pelican Bay Blvd.
Suite 300
Naples, Florida 34108
(b) Modification & Waiver. Failure of any party to
insist upon compliance with any provision hereof shall not
constitute a waiver thereof, and no waiver of any provision of
this Mortgage shall be effective unless it is in writing and
signed by the party against whom it is asserted. Any waiver
of any provision of this Mortgage shall only be applicable to
the specific provision and instance to which it is related,
and shall not be deemed to be a continuing or future waiver as
to such provision or as to any other provision.
(c) Partial Invalidity. Any determination by a
court of competent jurisdiction that any provision of this
Mortgage is not valid or enforceable as specifically set forth
shall not result in such provision being declared invalid, but
the same shall be deemed modified, if possible, in such a
manner so as to result in the same being valid and enforceable
to the maximum extent permitted by law; if such modification
is not possible, then such provision shall be deemed stricken
and severed from this Mortgage, and the remaining provisions
shall remain in full force and effect.
(d) Interpretation. Ail parties hereto have been
represented by legal counsel of their choice in connection
with this Mortgage and th~ other Loan Documents, and if any
provision of this Mortgage or any other Loan Document shall be
subject to judicial interpretation, it is agreed that the
court interpreting or construing such provision shall not
apply any presumption that the provision should be more
strictly construed against the party who itself or through its
agents prepared same, it being acknowledged and agreed that
legal counsel of all parties have participated in the
preparation of this Mortgage and all terms and provisions have
been negotiated.
(e) Number, Gender & Headings. Whenever the context
of any provision hereof shall require or permit it, words in
the singular shall include the plural, words in the plural
shall include the singular, and pronouns of any gender shall
include the other genders. The headings, captions, sections
and subsections in this Mortgage are for convenience only, and
shall have no effect upon the meaning of any of the terms,
provisions or conditions herein.
(f) Assiqnment & Successors. This Mortgage is not
assignable by Mortgagor without Mortgagee's prior written
19
consent, which Mortgagee may give or deny in its sole
discretion.. All of the terms, provisions and conditions in
this Mortgage shall be binding upon the parties hereto and
their respective successors and assigns, and shall inure only
to the benefit of Mortgagee and its successors and assigns,
and Mortgagor and Mortgagor's permitted successors and
assigns; no other person or entity shall be deemed a
benefitted party hereunder any circumstances.
(g) Conflict; Loan Documents. In the event of any
conflict between the terms of this Mortgage and the terms of
any other Loan Document, the order of priority of the Loan
Documents shall be as follows: the Loan Agreement, the Notes,
this Mortgage, the Assignment and then the other Loan
Documents. In the event of conflict, handwritten provisions
that are initialled by all parties shall control over
typewritten provisions. The terms and provisions of all Loan
Documents are hereby incorporated herein and made a part of
this Mortgage.
(h) Governinq Law & Venue. This Mortgage shall be
governed by, and shall be construed and enforced in accordance
with, the laws of the State of Florida, excepting only that
federal law shall govern to the extent that it may permit
Mortgagee to charge, from time to time, interest on the Notes
at a rate higher than may be permissible under applicable
Florida law. Venue for any action hereunder shall be Collier
County, Florida.
(i) Time of the Essence & Time Periods. Time shall
be of the essence as to all terms, provisions and conditions
'of this Mortgage with respect to all terms, provisions and
conditions for which a definite time for performance is
specified, provided, however, that the foregoing shall not be
deemed to deprive any party of the benefit of any cure or
grace period that may be set forth herein. No extension of
any time period shall be implied from any conduct of the
parties, and any such extension must be in writing and signed
by the party to whom suc~ performance is due. All time
periods in this Mortgage shall be deemed to be calendar days,
provided, however, that if the last day of any particular time
period is a Saturday, Sunday or legal holiday, then the time
period shall be deemed to extend to the next business day.
33. Waiver of Jury Trial. MORTGAGOR, INTENDING TO BIND
ITSELF AND ITS SUCCESSORS AND ASSIGNS, DOES HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT WHICH IT HAS OR MAY
HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LEGAL ACTION,
PROCEEDING, SUIT, LITIGATION, CLAIM, DEFENSE OR COUNTERCLAIM,
ARISING OUT OF, UNDER, IN CONNECTION WITH, OR BASED UPON: (A) THIS
MORTGAGE, THE LOAN AGREEMENT, THE NOTES AND/OR ANY OTHER LOAN
DOCUMENT OR AGREEMENT OR MATTER ARISING BETWEEN MORTGAGOR AND
LENDER WITH RESPECT TO SUCH AGREEMENTS, OR (B) ANY CONDUCT, COURSE
OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ACTIONS OF ANY PARTY RESPECTING ANY MATTER ADDRESSED OR
CONTEMPLATED IN THIS MORTGAGE, THE LOAN AGREEMENT, THE NOTESAND/OR
ANY OTHER LOAN DOCUMENT OR AGREEMENT OR MATTER ARISING BETWEEN
MORTGAGOR AND LENDER WITH RESPECT TO SUCH AGREEMENTS. THIS WAIVER
IS INTENDED TO BE APPLICABLE THROUGHOUT THE PERIOD OF TIME DURING
WHICH THIS MORTGAGE, THE LOAN AGREEMENT, THE NOTES AND OTHER LOAN
DOCUMENTS WERE NEGOTIATED, TO THE PRESENT TIME, AND AT ALL TIMES IN
THE FUTURE UNTIL ALL APPLICABLE STATUTES OF LIMITATION RESPECTING
THE TYPES OF LEGAL ACTIONS AND CLAIMS COVERED HEREBY SHALL HAVE
RUN, NOTWITHSTANDING THE EXPIRATION OR EARLIER TERMINATION OF THIS
MORTGAGE, THE LOAN AGREEMENT, THE NOTES ORANY OTHER LOAN DOCUMENT.
MORTGAGOR HEREBY CERTIFIES THAT NEITHER MORTGAGEE NOR ANY
REPRESENTATIVE OR AGENT OF MORTGAGEE OR MORTGAGEE'S COUNSEL HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT MORTGAGEE WOULD NOT, IN
20
THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF THE
RIGHT TO A JURY TRIAL. MORTGAGOR ACKNOWLEDGES THAT MORTGAGEE HAS
BEEN INDUCED TO ENTER INTO THIS MORTGAGE AND MAKE THE .LOAN BY,
INTER ALIA, THE PROVISIONS OF THIS PARAGRAPH. MORTGAGOR FURTHER
ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS
MORTGAGE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT COUNSEL
SELECTED BY IT.
Witnesses:
ruce G. Fed0v
Print Name
Signature
Print Name
IVY POINTE, INC., a Florida
corporation
Paula J. Davi~, President
STATE OF F~Q~ID~ )
)
COUNTY OF x-~L~V,J~h. )
The foregoing instrument was acknowledged before me this~I~
day of December,' 1996, by Paula J. Davis, as President of Ivy
Pointe, Inc., a Florida corporation, on behalf of the corporation.
She is personally known to me or has produced ~-~
as identification, and did not take an
oath.
Notary Public - Signature
Print Name
] N~f~Y ~gLIC ~'A~ OF FLORII)A~
!_ ~~ou ~. ~r. 6,~ l
12-28-g6
21
EXHIBIT "A"
LAND LOAN PROMISSORY NOTE
$3,480r000.00
Naples, Florida
December 31, 1996
FOR VALUE RECEIVED, the undersigned, IVY POINTE, INC.
("Borrower"), promises to pay to the order of COMERICA BANK
("Lender"), whose address is 500 Woodward Ave., 7th Floor, MC-3255,
Detroit, Michigan 48226, the principal sum of THREE MILLION FOUR
HUNDRED EIGHTY THOUSAND and NO/100 ($3,480,000.00) DO?.T.~RS
("Maximum Principal Amount"), or so much thereof as has been
advanced hereunder, together with interest thereon from the dates
advanced, at an annual rate equal to ONE (1%) PERCENT above
Lender's "Prime Rate of Interest" (as hereinafter defined). The
principal and interest of this Note shall be payable as follows:
Interest shall accrue on the daily principal
balances from time to time outstanding
hereunder. Interest only shall be paid on the
first of each month, in arrears, beginning on
February 1, 1997, and the unpaid principal
balance and all accrued and unpaid interest
shall be due and payable, in full, twenty-four
(24) months from the date hereof, on December
31, 1998.
Notwithstanding the foregoing, THREE HUNDRED EIGHTY-SIX
THOUSAND and NO/100 ($386,000.00) DOLLARS of the Maximum Principal
Amount that Borrower may borrow hereunder is designated as an
interest reserve, and may only be disbursed to Borrower for use in
the payment of interest due hereunder.
Lender's "Prime Rate of Interest" is that annual rate of
interest so designated by Lender and which is changed by Lender
from time to time, which rate is purely discretionary, and is not
necessarily the best or lowest rate charged to borrowing customers
of Lender. Each change in the Prime Rate of Interest shall be
effective as of the date upon which the Prime Rate of Interest is
changed by Lender. Interest shall be computed on the basis of a
360 day year, and paid upon the actual number of days upon which
the principal balance has been disbursed from time to time and
remains outstanding.
Ail payments due hereunder shall be payable at the office of
Lender, 500 Woodward Ave., 7th Floor, MC-3255, Detroit, Michigan
48226, or at such other place as Lender may from time to time
designate in writing, in lawful money of the United States of
America, without setoff or deduction. All payments shall be
applied first to late charges (if any), then to all other amounts
due hereunder except principal and interest (if any), then to
interest, and then to principal. Interest will accrue for each day
that principal is outstanding, but in no event shall interest be
due at a rate in excess of the highest lawful rate. Without
limiting the generality of the foregoing, and notwithstanding any
oral or written agreement, no deposit of funds shall be required in
connection with this Note in an amount which will, when deducted
from the principal amount outstanding hereunder, cause the rate of
interest hereunder to exceed the maximum lawful rate. In no event
shall interest (including any charge or fee held to be interest by
a court of competent jurisdiction) accrue or be payable hereon in
excess of the highest lawful rate permitted by law for the time
such indebtedness shall be outstanding and unpaid, and if by reason
of acceleration of maturity of such indebtedness, or for any other
reason, interest in excess of the highest lawful rate shall be due
or paid, any such excess shall constitute and be treated as a
payment on the principal hereof and shall operate to reduce such
principal by the amount of such excess, or if .in excess of
principal indebtedness, such excess shall be refunded to Borrower;
and thereafter, ..the effective rate of interest under this Note
shall be automatically reduced to the maximum lawful rate permitted
for this Note under applicable usury laws.
Payment of this Note is secured by a Mortgage, Security
Agreement & Assignment of Rents ("Mortgage") executed
simultaneously herewith by Borrower, as mortgagor, to Lender, as
mortgagee. This Note has also been executed, in part, pursuant to
that certain Loan Agreement ("Loan Agreement"), dated the date
hereof, by and between Borrower, Lender and others, as guarantors
(this Note, the Mortgage, the Loan Agreement, that certain
Construction Loan Promissory Note (the "Construction Loan Note") in
the original principal amount of $2,220,000.00, dated the date
hereof, from Borrower to Lender, and all other agreements and
documents referenced therein and/or executed in accordance
therewith, in the past, now or in the future, are sometimes
hereinafter collectively referred to as the "Loan Documents", and
individually as a "Loan Document"). A default under the Mortgage,
Loan Agreement or any other Loan Document shall also be a default
by the Borrower under this Note, and the terms and provisions of
~he Mortgage, Loan Agreement and other Loan Documents are hereby
incorporated herein by this reference.
This Note may be prepaid in whole or in part at any time
without premium or penalty. Prepayment shall not affect or vary
the duty of the Borrower to pay all obligations when due, nor shall
such prepayments affect or impair the right of Lender to pursue
remedies available to it hereunder or under the Mortgage, the Loan
Agreement or any other Loan Document. All prepayments shall be
accompanied by written notice stating the amount being prepaid.
All prepayments shall be applied first to late charges (if any),
then to all other amounts due hereunder except principal and
interest (if any), then to interest, and then to principal.
If all or any part of the payments of principal and interest
due hereunder are not received by Lender when such payment is due,
then Borrower shall also be obligated to pay Lender a la~e ~harge
equal to FIVE (5%) PERCENT of each such late payment, as liquidated
damages and not as a penalty. Borrower agrees that proof of actual
damages would be impossible to ascertain with certainty, and that
the late charge represents a fair and reasonable estimate of the
probable costs Lender will incur by reason of a late payment,
including but not limited to, administrative and bookkeeping costs,
collection activity, interest costs, and other expenses incurred as
a result of the late payment. Acceptance of a late charge shall
not constitute a waiver of any default and shall not prevent Lender
from exercising any other rights and remedies of Lender under this
Note, the Mortgage, the Loan Agreement or any other Loan Document,
and in no event shall this provision waive the Lender's right to
declare a default and accelerate the balance due hereunder, to
foreclose the Mortgage and/or to pursue any other remedies under
the Loan Documents.
If Borrower shall fail to pay any principal or interest, or
any other sum of money due under this Note, the Construction Loan
Note, the Mortgage, the Loan Agreement or any other Loan Document
within ten (10) after due, or if Borrower fails to timely perform
any of the nonmonetary terms and provisions of this Note, the
Construction Loan Note, the Mortgage, the Loan Agreement or any
other Loan Document within ten (10) days after performance is due,
or if all or any part of the property secured by the Mortgage or
any interest in it is sold or transferred (unless previously
released from the Mortgage by Lender), or if all or any part of the
property secured by the Mortgage or any interest in it is further
encumbered, then Lender, at its option at any time thereafter and
without any notice, demand, or presentment for payment to Borrower,
all of which notice and demand Borrower hereby waives, may declare
2
immediately due and payable the outstanding principal balance
hereunder, together with all accrued interest thereon and any and
all other sums due and payable under this Note, the Construction
Loan Note, the Mortgage, the Loan Agreement and/or all other Loan
Documents (which sums shall include, without limitation, all costs
of collection and attorneys' and paralegal fees and costs incurred
by Lender in collecting or enforcing payment thereof, through and
including all negotiations, trial, appellate, post-judgment,
bankruptcy and/or other proceedings), and all such sums shall bear
interest at the highest rate permitted by Florida law from the date
due, and payment thereof may be enforced and recovered in whole or
in part at any time by one or more of the remedies provided to
Lender.
The remedies of Lender as provided herein, in the Mortgage,
the Loan Agreement, any other Loan Document or any other document
now or hereafter relating to or securing the within indebtedness,
shall be cumulative and concurrent and may be pursued singly,
successively or together, at the sole discretion of Lender, and may
be exercised as often as occasion therefore shall occur; and the
failure to exercise any such right or remedy shall in no event be
construed as a waiver or release thereof. No delay or failure on
the part of Lender to exercise any right or remedy under this Note,
the Mortgage, the Loan Agreement, any other Loan Document or any
other document shall constitute a waiver of such right or remedy or
any other right or remedy, and no waiver of any past default shall
constitute a waiver of any future default or of any other default.
No failure to accelerate the debt evidenced by this Note by reason
of Borrower's default, or acceptance of a past due payment, or
indulgence granted from time to time, shall be construed to be a
waiver of the right to insist upon prompt payment thereafter or to
impose late charges, or be construed so as to preclude the exercise
of any right that Lender may have, whether by law, by agreement or
otherwise.
Borrower and all others who are, or may become, liable for the
payment hereof: (i) waive presentment for payment, demand, notice
of nonpayment or dishonor, protest and notice of protest of this
Note, and all other notices in connection with the delivery,
acceptance, performance, default or enforcement of this Note; (ii)
hereby consent to all extensions of time, renewals, postponements
of time of payment of this Note or other modifications hereof from
time to time prior to or after the maturity of this Note without
notice, consent or further consideration to any of the foregoing;
and (iii) expressly agree that Lender shall not be required first
to institute any suit or to exhaust its remedies against Borrower
or any other person or party to become liable hereunder or against
the collateral under the Mortgage, in order to enforce the payment
of this Note.
The provisions of this Note may be changed only by a written
agreement executed by Borrower and Lender.
This instrument shall be governed by and construed and
enforced according to the laws of the State of Florida. Venue with
respect to any litigation hereunder shall be Collier County,
Florida.
If any provision of this Note shall be deemed unenforceable
under applicable law, such provision shall be ineffective, but only
to the extent of such unenforceability, without invalidating the
remainder of such provision or the remaining provisions of this
Note.
Whenever used, the singular shall include the plural, the
plural shall include the singular, the use of any gender shall be
applicable to all genders, and the words "Borrower" and "Lender"
shall be deemed to include the respective heirs, personal
3
representatives, successors and assigns of Borrower and Lender.
All of the terms.and provisions of this Note shall be applicable to
and be binding upon each and every maker, endorser, surety,
guarantor and all other persons who are or who may become liable
for the payment hereof, jointly and severally, and their heirs,
personal representatives, successors and assigns.
BORROWER AND LENDER, INTENDING TO BIND THEMSELVES AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS, DO HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE THE RIGHT WHICH THEY HAVE OR MAY HAVE TO A
TRIAL BY JURY WITH RESPECT TO ANY LEGAL ACTION, PROCEEDING, SUIT,
LITIGATION, CLAIM, DEFENSE OR COUNTERCLAIM, ARISING OUT OF, UNDER,
IN CONNECTION WITH, OR BASED UPON: (A) THIS NOTE, THE MORTGAGE, THE
LOAN AGREEMENT AND/OR ANY OTHER LOAN DOCUMENT OR AGREEMENT OR
MATTER ARISING BETWEEN BORROWER AND LENDER WITH RESPECT TO SUCH
AGREEMENTS, OR (B) ANY CONDUCT, COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY RESPECTINGANYMATTER ADDRESSED OR CONTEMPLATED IN THIS NOTE,
THE MORTGAGE, THE LOAN AGREEMENT AND/OR ANY OTHER LOAN DOCUMENT OR
AGREEMENT OR MATTER ARISING BETWEEN BORROWER AND LENDER WITH
RESPECT TO SUCH AGREEMENTS. THIS WAIVER IS INTENDED TO BE
APPLICABLE THROUGHOUT THE PERIOD OF TIME DURING WHICH THIS NOTE,
THE MORTGAGE, THE LOAN AGREEMENT AND OTHER LOAN DOCUMENTS WERE
NEGOTIATED, TO THE PRESENT TIME, AND AT ALL TIMES IN THE FUTURE
UNTIL ALLAPPLICABLE STATUTES OF LIMITATION RESPECTING THE TYPES OF
LEGAL ACTIONS AND CLAIMS COVERED HEREBY SHALL HAVE RUN,
NOTWITHSTANDING THE EXPIRATION OR EARLIER TERMINATION OF THIS NOTE,
THE MORTGAGE, THE LOAN AGREEMENT OR ANY OTHER LOAN DOCUMENT.
BORROWER HEREBY CERTIFIES THAT NEITHER LENDER NOR ANY
REPRESENTATIVE OR AGENT OF LENDER OR LENDER'S COUNSEL HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LENDER WOULD NOT, IN THE
EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF THE RIGHT
TO A JURY TRIAL. BORROWER ACKNOWLEDGES THAT LENDER HAS BEEN
INDUCED TO MAKE THE LOAN EVIDENCED BY THIS NOTE BY, INTER ALIA, THE
PROVISIONS OF THIS PARAGRAPH. BORROWER FURTHER ACKNOWLEDGES THAT
IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS NOTE AND IN THE
MAKING OF THIS WAIVER BY INDEPENDENT COUNSEL SELECTED BY BORROWER.
Ivy Pointe, Inc.
By:
Paula J. Davis, President
Florida Documen2aryStAmp Taxes have been paid
and the proper stamps have been affixed 2o the
Mortgage secur£ng this Promissory Note.
12-26-96
4
,EXHIBIT "B"
CONSTRUCTION LOAN PROMISSORY NOTF
$2.220,000.00
Naples, Florida
December 31, 1996
FOR VALUE RECEIVED, the undersigned, IVY POINTE, INC.
("Borrower"), promises to pay to the order of COMERICA BANK
("Lender"), whose address is 500 Woodward Ave., 7th Floor, MC-3255,
Detroit, Michigan 48226, the principal sum of TWO MItT.ION TWO
HUNDRED TWENTY THOUSAND and NO/100 ($2,220,000.00)
("Maximum Principal Amount"), or so much thereof as has been
advanced hereunder, together with interest thereon from the dates
advanced, at an annual rate equal to ONE-HALF (0.5%) PERCENT above
Lender's "Prime Rate of Interest" (as hereinafter defined). The
principal and interest of this Note shall be payable as follows:
Interest shall accrue on the daily principal
balances from time to time outstanding
hereunder. Interest only shall be paid on the
first of each month, in arrears, beginning on
February 1, 1997, and the unpaid principal
balance and all accrued and unpaid interest
shall be due and payable, in full, twenty-four
(24) months from the date hereof, on December
31, 1998.
The loan represented by this Note is a revolving credit, such
that during the term hereof, Borrower may borrow, repay and
reborrow from time to time, subject to the terms and conditions of
that certain Loan Agreement ("Loan Agreement"), dated the date
hereof, by and between Borrower, Lender and others (as guarantors),
provided, however, that the maximum principal amount outstanding
hereunder may increase and decrease, but shall never exceed the
Maximum Principal Amount. Notwithstanding the foregoing, TWO
HUNDRED TWENTY THOUSAND and NO/100 ($220,000.00) DOLLARS of the
Maximum Principal Amount that Borrower may borrow hereunder is
designated as an interest reserve, and may only be disbursed to
Borrower for use in the payment of interest due hereunder.
Lender's "Prime Rate of Interest" is that annual rate of
interest so designated by Lender and which is changed by Lender
from time to time, which rate is purely discretionary, and-is not
necessarily the best or lowest rate charged to borrowing customers
of Lender. Each change in the Prime Rate of Interest shall be
effective as of the date upon which the Prime Rate of Interest is
changed by Lender. Interest shall be computed on the basis of a
360 day year, and paid upon the actual number of days upon which
the principal balance has been disbursed from time to time and
remains outstanding.
Ail payments due hereunder shall be payable at the office of
Lender, 500 Woodward Ave., 7th Floor, MC-3255, Detroit, Michigan
48226, or at such other place as Lender may from time to time
designate in writing, in lawful money of the United States of
America, without setoff or deduction. Ail payments shall be
applied first to late charges (if any), then to all other amounts
due hereunder except principal and interest (if any), then to
interest, and then to principal. Interest will accrue for each day
that principal is outstanding, but in no event shall interest be
due at a rate in excess of the highest lawful rate. Without
limiting the generality of the fore-oin-
oral or written agreement, no deposi[ of~un~= notwithstanding any
shall be required in
connection with this Note in an amount which will, when deducted
from the principal amount outstanding hereunder, cause the rate of
interest hereunder to exceed the maximum lawful rate. In no event
shall interest (including any charge or fee held to be interest by
a court of competent jurisdiction) accrue or be payable hereon in
excess of the highest lawful rate permitted by law for the time
such indebtedness shall be outstanding and unpaid,.and if by reason
of acceleration of maturity of such indebtedness, or for any other
reason, interest in excess of the highest lawful rate shall be due
or paid, any such excess shall constitute and be treated as a
payment on the principal hereof and shall operate to reduce such
principal by the amount of such excess, or if in .excess of
principal indebtedness, such excess shall be refunded to Borrower;
and thereafter, the effective rate of interest under this Note
shall be automatically reduced to the maximum lawful rate permitted
for this Note under applicable usury laws.
Payment of this Note is secured by a Mortgage, Security
Agreement & Assignment of Rents ("Mortgage") executed
simultaneously herewith by Borrower, as mortgagor, to Lender, as
mortgagee. This Note has also been executed, in part, pursuant to
the Loan Agreement (this Note, the Mortgage, the Loan Agreement,
that certain Land Loan Promissory Note (the "Land Loan Note") in
the original principal amount of $3,480,000.00, dated the date
hereof, from Borrower to Lender, and all other agreements and
documents referenced therein and/or executed in accordance
therewith, in the past, now or in the future, are sometimes
hereinafter collectively referred to as the "Loan Documents", and
individually as a "Loan Document"). A default under the Mortgage,
Loan Agreement or any other Loan Document shall also be a default
by the Borrower under this Note, and the terms and provisions of
the Mortgage, Loan Agreement and other Loan Documents are hereby
incorporated herein by this reference.
This Note may be prepaid in whole or in part at any time
without premium or penalty. Prepayment shall not affect or vary
the duty of the Borrower to pay all obligations when due, nor shall
such prepayments affect or impair the right of Lender to pursue
remedies available to it hereunder or under the Mortgage, the Loan
Agreement or any other Loan Document. All prepayments shall be
accompanied by written notice stating the amount being prepaid.
All prepayments shall be applied first to late charges (if any),
then to all other amounts due hereunder except principal and
interest (if any), then to interest, and then to principal.
If all or any part of the payments of principal and interest
due hereunder are not received by Lender when such payment is due,
then Borrower shall also be obligated to pay Lender a late charge
equal to FIVE (5%) PERCENT of each such late payment, as liquidated
damages and not as a penalty. Borrower agrees that proof of actual
damages would be impossible to ascertain with certainty, and that
the late charge represents a fair and reasonable estimate of the
probable costs Lender will incur by reason of a late payment,
including but not limited to, administrative and bookkeeping costs,
collection activity, interest costs, and other expenses incurred as
a result of the late payment. Acceptance of a late charge shall
not constitute a waiver of any default and shall not prevent Lender
from exercising any other rights and remedies of Lender under this
Note, the Mortgage, the Loan Agreement or any other Loan Document,
and in no event shall this provision waive the Lender's right to
declare a default and accelerate the balance due hereunder, to
foreclose the Mortgage and/or to pursue any other remedies under
the Loan Documents.
If Borrower shall fail to pay any principal or interest, or
any other sum of money due under this Note, the Land Loan Note, the
Mortgage, the Loan Agreement or any other Loan Document within ten
(10) after due, or if Borrower fails to timely perform any of the
nonmonetary terms and provisions of this Note, the Land Loan Note,
the Mortgage, the Loan Agreement or any other Loan Document within
ten (10) days after performance is due, or if all or any part of
the property secured by the Mortgage or any interest in it is sold
or transferred (unless previously released from the Mortgage by
Lender), or if all or any part of the property secured by the
Mortgage or any interest in it is further encumbered, then Lender,
at its option at any time thereafter and without any notice,
demand, or presentment for payment to Borrower, all of which notice
and demand Borrower hereby waives, may declare immediately due and
payable the outstanding principal balance hereunder, together with
all accrued interest thereon and any and all other sums due and
payable under this Note, the Land Loan Note, the Mortgage, the Loan
Agreement .and/or .a~l other Loan Documents (~hich sums shall
include, without l~mltation, all costs of collection and attorneys,
and paralegal fees and costs incurred by Lender in collecting or
enforcing payment thereof, through and including all negotiations,
trial, appellate, post-judgment, bankruptcy and/or other
proceedings), and all such sums shall bear interest at the highest
rate permitted by Florida law from the date due, and payment
thereof may be enforced and recovered in whole or in part at any
time by one or more of the remedies provided to Lender.
The remedies of Lender as provided herein, in the Mortgage,
the Loan Agreement, any other Loan Document or any other document
now or hereafter relating to or securing the within indebtedness,
shall be cumulative and concurrent and may be pursued singly,
successively or together, at the sole discretion of Lender, and may
be exercised as often as occasion therefore shall occur; and the
failure to exercise any such right or remedy shall in no event be
construed as a waiver or release thereof. No delay or failure on
the part of Lender to exercise any right or remedy under this Note,
the Mortgage, the Loan Agreement, any other Loan Document or any
other document shall constitute a waiver of such right or remedy or
any other right or remedy, and no waiver of any past default shall
constitute a waiver of any future default or of any other default.
No failure to accelerate the debt evidenced by this Note by reason
of Borrower's default, or acceptance of a past due payment, or
indulgence granted from time to time, shall be construed to be a
waiver of the right to insist upon prompt payment thereafter or to
impose late charges, or be construed so as to preclude the exercise
of any right that Lender may have, whether by law, by agreement or
otherwise.
Borrower and all others who are, or may become, liable for the
payment hereof: (i) waive presentment for payment, demand, notice
of nonpayment or dishonor, protest and notice of protest of this
Note, and all other notices in connection with the delivery,
acceptance, performance, default or enforcement of this Note; (ii)
hereby consent to all extensions of time, renewals, postponements
of time of payment of this Note or other modifications hereof from
time to time prior to or after the maturity of this Note without
notice consent or further ons~deratlon to any of the foregoing;
' C ° '
and (iii) expressly agree that Lender shall not be required first
to institute any suit or to exhaust its remedies against Borrower
or any other person or party to become liable hereunder or against
the collateral under the Mortgage, in order to enforce the payment
of this Note.
The provisions of this Note may be changed only by a written
agreement executed by Borrower and Lender.
This instrument shall be governed by and construed and
enforced according to the laws of the'State of Florida. Venue with
respect to any litigation hereunder shall be Collier County,
Florida.
If any provision of this Note shall be deemed unenforceable
under applicable law, such provision shall be ineffective, but only
to the extent of such unenforceability, without invalidating the
remainder of such provision or the remaining provisions of this
Note.
Whenever used, the singular shall include the plural, the
plural shall include the singular, the use of any gender shall be
applicable to all genders, and the words "Borrower" and "Lender"
shall be deemed to include the respective heirs, personal
representatives, successors and assigns of Borrower and Lender.
All of the terms and provisions of this Note shall be applicable to
and be binding upon each and every maker, endorser, surety,
guarantor and all other persons who are or who may become liable
for the payment hereof, jointly and severally, and their heirs,
personal representatives, successors and assigns.
BORROWER AND LENDER, INTENDING TO BIND THEMSELVES AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS, DO HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE THE RIGHT WHICH THEY HAVE OR MAY HAVE TO A
TRIAL BY JURY WITH RESPECT TO ANY LEGAL ACTION, PROCEEDING, SUIT,
LITIGATION, CLAIM, DEFENSE OR COUNTERCLAIM, ARISING OUT OF, UNDER,
IN CONNECTION WITH, OR BASED UPON: (A) THIS NOTE, THE MORTGAGE, THE
LOAN AGREEMENT AND/OR ANY OTHER LOAN DOCUMENT OR AGREEMENT OR
MATTER ARISING BETWEEN BORROWER AND LENDER WITH RESPECT TO SUCH
AGREEMENTS, OR (B) ANY CONDUCT, COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY RESPECTING ANYMATTER ADDRESSED OR CONTEMPLATED IN THIS NOTE,
THE MORTGAGE, THE LOAN AGREEMENT AND/ORANY OTHER LOAN DOCUMENT OR
AGREEMENT 'OR MATTER ARISING BETWEEN BORROWER AND LENDER WITH
RESPECT TO SUCH AGREEMENTS. THIS WAIVER IS INTENDED TO BE
APPLICABLE THROUGHOUT THE PERIOD OF TIME DURING WHICH THIS NOTE,
THE MORTGAGE, THE LOAN AGREEMENT AND OTHER' LOAN DOCUMENTS WERE
NEGOTIATED, TO THE PRESENT TIME, AND AT ALL TIMES IN THE FUTURE
UNTIL ALLAPPLICABLE STATUTES OF LIMITATION RESPECTING THE TYPES OF
LEGAL ACTIONS AND CLAIMS COVERED HEREBY SHALL HAVE RUN,
NOTWITHSTANDING THE EXPIRATION OR EARLIER TERMINATION OF THIS NOTE,
THE MORTGAGE, THE LOAN AGREEMENT OR ANY OTHER LOAN DOCUMENT.
BORROWER HEREBY CERTIFIES THAT NEITHER LENDER NOR ANy
REPRESENTATIVE OR AGENT OF LENDER OR LENDER'S COUNSEL HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LENDER WOULD NOT, IN THE
EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF THE RIGHT
TO A JURY TRIAL. BORROWER ACKNOWLEDGES THAT LENDER HAS BEEN
INDUCED TO MAKE THE LOAN EVIDENCED BY THIS NOTE BY, INTER ALIA, THE
PROVISIONS OF THIS PARAGRAPH. BORROWER FURTHER ACKNOWLEDGES THAT
IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS NOTE AND IN THE
MAKING OF THIS WAIVER BY INDEPENDENT COUNSEL SELECTED BY BORROWER.
Ivy Pointe, Inc.
By.'..
Paula J. Davis, President
Florida Documentary Stamp Taxes have been paid
and the proper stamps have been affixed to the
Mo~cgage securing this Promissory Note.
c, \gA~TZRS \CO~RzCA\ IVX\NOT~_COR. 2
4
*** 01t: 22[;8 PS: 1317
Prepared By=
Warren J. Kozlow, Esq
WARREN J. KOZLOW, P.A.
7000 W. Palmetto Park Road
Suite 400
Boca Baton, Florida 33433
Re2urn To:
2134705 OR: 2268 PG: 1318
PJCO~DID Jl~ OI'J'ZCIAL IlCOIDI O~ CO~ZI~ ~g~, ~
01/03/~7 at 04:53FK Dll~ I. BIOC~, CLBR[
aero: UC Fl] 24.00
88fi FILI~ ~T BLVD 1300
ff~Ll~ FL 34108
Bruce G. Fedor, Esq.
ANNIS, MITCHELL, COCKEY, EDWARDS & ROEHN, P.A.
8889 Pelican Bay Blvd., Suite 300
Naples, Florida 34108
ASSIGNH~N~ OF CONTRACTS, LICENSKS, PERMITS, ETC.
This Assignment of Contracts, Licenses, Permits, Etc.
("Assignment..) is made by IVY POINTE, INC., a Florida corporation
("Borrower"), whose address is 9051Tamiami Trail North, Suite 202,
Naples, Florida 33963, to COMERICA BANK, a Michigan corporation
("Lender"), whose address 500 Woodward Avenue, 7th Floor, MC-3255,
Detroit, Michigan 48226.
WHEREAS, on or about the date hereof, Borrower has borrowed
from Lender up to a maximum of FIVE MILLION SEVEN HUNDRED THOUSAND
and NO/100 ($5,700,000.00) DOLLARS (the "Loan"), as evidenced by
that certain Land Loan Promissory Note ("Land Loan Note") from
,
Borrower, as maker, to Lender, as payee, dated on or about the date
hereof, in the amount of THREE MILLION FOUR HUNDRED EIGHTY THOUSAND
and NO/100 ($3,480,000.00) DOLLARS, and that certain Construction
Loan Promissory Note ("Construction Loan Note"), from Borrower, as
maker, to.Lender, as payee, dated on or about the date hereof, in
the amount of TWO MILLION TWO HUNDRED TWENTY THOUSAND and N0/100
($2,220,000.00) DOLLARS (the Land Loan Note and the Construction
Loan Note are hereinafter referred to individually and
collectively, jointly and severally, as the "Notes"), which Notes
are secured by that certain Mortgage, Security Agreement &
Assignment of Rents ("Mortgage"), executed by Borrower, as
mortgagor, to Lender, as mortgagee, which Mortgage encumbers the
property described in EXHIBIT "A", attached hereto and made a part
hereof (the "Property"); and
WHEREAS, on or about the date hereof, Borrower, Lender and
others have also entered into that certain Loan Agreement ("Loan
Agreement"), pursuant to which the Notes, the Mortgage and other
documents and instruments have been executed and delivered by
Borrower to Lender (this Assignment, the Notes, the Mortgage, the
Loan Agreement and all other agreements and documents referenced
therein and/or executed in accordance therewith, in the past, now
or in the future, are sometimes hereinafter collectively referred
to as the "Loan Doc,,~ents", and individually as a "Loan Document");
and
WHEREAS, Borrower intends to use the Loan proceeds to develop
and/or construct improvements on the Property, consisting of
approximately Forty-Four (44) building pads and related
entranceway(s), roads, infrastructure development, Forty-Four (44)
single family homes, and related improvements (collectively, the
"Improvements,,); and
WHEREAS, in connection with the Improvements, Borrower has
entered or will enter into certain contracts and agreements, and
has acquired or will acquire certain licenses, permits and
development and other rights; and
WHEREAS, as a condition of making the Loan to Borrower, Lender
has required Borrower to execute and deliver this Assignment, and
Borrower has agreed to do so.
NOW, THEREFORE, for and in consideration of the sum of Ten
($10.00) Dollars, the receipt of which is hereby acknowledged, and
for and in consideration of the covenants herein set forth,
Borrower hereby agrees as follows:
1. The recitals set forth above are true and correct and are
hereby incorporated herein by this reference.
2. In order to secure: (i) payment of all indebtedness
evidenced by the Notes (including, without limitation, any
extension, modification or renewal thereof), (ii) all other sums
due under the Loan Documents, and (iii) the performance and
discharge by Borrower of each and every obligation, covenant and
agreement of Borrower contained in the Loan Documents, Borrower
hereby assigns, sets over, transfers and conveys to Lender, and
grants to Lender a security interest in, all of Borrower's right,
title and interest in and to the following, together with any
changes, extensions, revisions or modifications thereto
(hereinafter collectively referred to as the "Collateral-):
(a) Ail contracts, subcontracts and all other agreements
now or hereafter existing, which pertain or relate in any
manner to the Property or any part thereof, or any
improvements now or hereafter located thereon.
(b) Ail drawings, plans and specifications, including,
without limitation, all site plans and development,
landscaping and engineering plans for the Property, and all
agreements, building permits, surveys, architectural plans and
specifications, governmental approvals, licenses, permits,
agreements with utility companies and other utilities, water
and sewer capacity reservation agreements and all other
consents, approvals and agreements which Borrower may now or
hereafter own, or be a party to, with respect to or in
connection with the Property or any part thereof, or any
improvements now or hereafter located thereon.
(c) Ail building and other permits, bonds, construction
contracts, including, without limitation, any agreements with
Borrower's architect and engineer, purchase contracts for the
sale of residences within the Property ("Purchase
Agreements'.), all deposits and other payments made or to be
made under the Purchase Agreements, utility agreements and
rights, governmental applications and proceedings, feasibility
studies, traffic studies, soil tests, environmental reports or
studies, maintenance and service contracts, management
agreements, goodwill, marketing agreements, names, tradenames
and fictitious names, warranties and guaranties, occupancy
permits and licenses, insurance policies, personal property
and leases therefor, easements or rights-of-way agreements,
now or hereafter existing, which pertain or relate in any
manner to the Property or any part thereof, or any
improvements now or hereafter located thereon.
(d) Ail of Borrower,s rights, title and interest, if
any, under the Declaration of Neighborhood Covenants,
Conditions and Restrictions For Parcel K - Pelican Marsh Unit
Eight Replat, as previously or hereafter recorded in the
Public Records of Collier County, Florida, which Declaration
encumbers or will encumber the Property.
(e) Ail proceeds of all of the foregoing including,
without limitation, proceeds of the conversion, '
voluntary or
involuntary, of any of the foregoing into cash or liquidated
claims, proceeds of insurance policies, condemnation awards,
or resulting from the sale, hypothecation or transfer of any
2
of the Collateral, and all products, renewals, accessions and
additions to any of the Collateral.
3. In the event of the occurrence of any default under the
Loan Agreement, the Notes, the Mortgage or any other Loan Document
(a "Default"), Lender shall have the right and option, in its sole
discretion, to exercise the rights, benefits and privileges of
Borrower in the Collateral upon Ten (10) days written notice to the
other party(-ies) to such Collateral (the "O~he~ Parties").
Neither this Assignment nor any action or actions on the part of
Lender shall constitute an assumption by Lender of any of the
obligations of Borrower under the Collateral, and Borrower shall
continue to be liable for all obligations thereunder. Borrower
hereby agrees to protect, defend, indemnify and hold Lender
harmless from and against any and all loss, cost, liability or
expense, including, without limitation, attorneys' and paralegal
fees and costs incurred by Lender, through and including all
negotiations, trial, appellate, post-judgment, bankruptcy and/or
other proceedings, resulting from any failure of Borrower to
perform and observe, at the time and in the manner therein
provided, each of the covenants, agreements and obligations of
Borrower contained in the Collateral.
4. As long as no Default has occurred, Borrower may continue
to receive and exercise all of the rights, benefits and privileges
under the Collateral.
5. Upon delivery of written notice of a Default to Borrower,
Lender shall have the right, in its sole discretion, to take in its
name or in name of Borrower or otherwise, such action as Lender may
at any time or from time to time reasonably determine to be
necessary to cure any Default of Borrower, but under no
circumstances shall Lender be obligated to take such action.
Lender shall incur no liability on account of any action taken in
good faith by it or on its behalf or otherwise hereunder, whether
or not the same shall prove to be improper, inadequate or invalid
in whole or in part, and Borrower agrees to protect, defend,
indemnify and hold Lender harmless from and against any and all
loss, cost, liability or expense, including, without limitation,
attorneys' and paralegal fees and costs incurred by Lender, through
and including all negotiations, trial, appellate, post-judgment,
bankruptcy and/or other proceedings, in connection with any such
action or actions. This Assignment shall constitute Borrower's
irrevocable direction to and full authority for the Other Parties
to act at Lender's written direction, notice or demand, and to
otherwise perform on Lender's behalf under the Collateral after a
Default exists. The Other Parties shall be fully protected by
Borrower in their reliance upon and compliance with any written
request, notice or demand made by Lender with respect to the
Collateral, or for performance of any undertaking thereunder, and
shall have no right or duty to inquire as to whether any Default
has actually occurred or is then existing.
6. Borrower hereby irrevocably constitutes and appoints
Lender as its true and lawful attorney-in-fact, empowered to act in
Borrower's name or in Lender's name or otherwise, in order to
enforce all rights of Borrower under the Collateral. This power of
attorney, is coupled with an interest, and irrevocable.
7. Borrower represents and warrants that it has full power
and authority to make this Assignment, that the Collateral is
valid, subsisting and in full force and effect, and that no
Default, right of setoff or claim for additional payments exists
thereunder. Borrower covenants to make all required payments and
otherwise perform its obligations under the Collateral, and to give
prompt notice to Lender of any notice of default served upon
Borrower with respect to its obligations under the Collateral, and
at Borrower's sole cost and expense, to enforce or secure the
performance of each and every obligation of the Other Parties.
Borrower further covenants that it shall make no changes in or
amendments to the Collateral, including, without limitation, any
addenda, modifications or change orders, without the prior written
consent of Lender, except for such change orders or extras, if any,
as are specifically allowed by the Loan Agreement, and shall not
tender or accept a surrender or cancellation of the Collateral, or
further assign or create any further encumbrance or hypothecation
of Borrower's interest under the Collateral, without the prior
written consent of Lender, which Lender may give or deny in its
sole discretion.
8. This Assignment and the agreements and undertakings of
Borrower hereunder shall be binding upon Borrower and its
successors and assigns, and shall inure to the benefit of Lender
and its successors, and assigns, and any purchaser of any interest
in the Loan Agreement and/or the other Loan Documents.
9. Borrower agrees to make, execute and deliver all such
further or additional instruments as may be necessary to satisfy
the intents and purposes hereof, and to perfect the assignment made
hereby.
10. This Assignment shall terminate for each individual part
of the Property (a "Lot"), simultaneously upon the recordation in
the Public Records of Collier County, Florida, of a partial release
or a partial satisfaction of the Mortgage referencing the Lot.
Dated as of the
Witnesses:
Signature
Signa~e -'~ -
ir'uce Fedor'
Print Name
day of December, 1996.
Ivy Pointe, Inc., a Florida
corporation
Paula J. D~v~s, Presiden-t
STATE OF FLORIDA )
,
COUNTY OF P /g~/ )
Th~ foregoing instrument was acknowledged before me this~/--
day of December, 1996, by Paula J. Davis, as President of Ivy
Pointe, Inc., a Florida corporation, on behalf of the corporation.
She is personally known to me or has produced ~--
as identification.
Notary Public - Signature
12-2g-~
Print Name
4
EXHIBIT
LEGAL DESCRIPTION
Parcel K, PELICAN MARSH UNIT BIGHT REPLAT, according 'to
the plat thereof, recorded in Plat Book 27, Pages 42
through 44, of the Public Records of Collier County,
Florida.
5
-~y P6J,?e, Inc., a Florida corporaticG
]51 Tamia~i Trail North, Suite 202
,~em]nole FOlla UL'C-I
STATE[ OF FLORIDA
FORM COMMERCIAL CODE FINANCING STATEMENT FORM UCC-1 (REV. 1993)
This F~ Statement is p~e~,e~ted to a filing officer for filing pursuant to the Uniform Commercial Code:
I ls.
Data of Birth or FE~
Applied for
ddltlonal Debtor or Trade Nai~,e (Last ~i.T,e
Ilc. City, State
Naples, Florida
'ailing Address 12c. City, State
I
ecured Party (Last Name ~i'~t If
-~ Attached "SEOJ-~ED PARTY" Page
ailing AdGrasi
~ Attached "SECURED PARIS" Page
sslgnee of Secured Pa~y (Last ~a,T,e F;,~; If an '-,C,;vldual)
1 ld. Zip Code
/ 339 3
2a. Data of Birth or FEll
2d. Zip Code
City, State 13c. Zip Code
ailing Address 4b. City, State 1 4c. Zip Code
I
ds Financing Stat~T, ent cov~-~ the ~i-q~ types or ;'~ or property [Include deacrfptlon of real property on which located and owner of record when
flulrsd. If mom space is required, attach addltim~ shee4(a)].
EXHIBIT "A" TO UCC-I, attact~d hereto and made a part hereof.
'leck only if Applicable: ~l[ Products of collateral are also covered. ~ Proceeds of collaleral are also covered. [~ Debtor is transmitting utility.
.~eck. approp.ri.ate box: ~ All documental/stamp lazes due and payable or to become due and payable pursuant to s. 201.22 F.S., have been paid.
ne oOX must oe marked)t~ Florida Documental/Stmnp Tax is not required.
accordance with s. 679.402(2), F.S, this statement is filed wfthout the Debtor's signature 9. Number of additional sheets presented: 5
perfect a security interest In collateral:
-eady subject to a sncurlty Intam~ In another Jurisdictkxt when It was brought Into this
:ate or debtor's location changed to this state.
nlch Is proceeds of the original coilaterd desedbod above bt which a security inte~st was
· to which the filing has is~ Date filed and previous
.:C-1 file numbor
:lulrsd after s change of name, Id~, or coq3orate stnJctum'of fhe debtor.
;nature(s) of Debtor(s)
:vy~~, I~nc.,~a Florida corForation
3y: "~~esi~
;nature(s) of Secured Party or It Assigned, by Assignee(s)
Y: ~d bf. O:xxhran~ V:i.c~ President
,turn ¢o~y to:
Bruce G. Fedor, E.~u±re
Ann±s, bLi. tchell, Cockey, Edwards & Rr~hn,P
;s 8889 Pelican Bay Boulevard, Suite 300
~ Naples, Florida 34108
'1ate, Zip [
_lNG
OFFICER COPY
This Space for Use of Filing Officer
2134706 OR: 2268 PG: 1323
BC0ROID in OHICIU, RICODS of COLLIIIt COgITl', }%
)I/03/91 at. 04:53PH DWI(aI~ I. BROCK, CLIR[
RIC FBB 28,50
ietn:
UlllXa II~TCHILL BT AL
8989 PBLZCAJl BAY BLVD tt200
Ii, LiS FL :14108
STANDARD FORM - FORM UCC-1
Al:~roved by Seoretary of State, State of Florida
'*SKCURRD PARTY"
Secured Party:
COM~RICA BANK
3a.
1st Mailing Address:
Construction Lending Department
1800 Corporate Blvd., N.W. .
Boca Raton, Florida 33431
2nd Mailing Address:
Commercial Real Estate I
500 Woodward Avenue
7th Floor
MC-3255
Detroit, Michigan 48226
Debtor:
Secured Party
EXHIBIT "A" TO UCC-!
Ivy Pointe, Inc.
Comerica Bank
(a) All buildings, structures and improvements of every
· nature whatsoever now or her.e.a.f, ter situated on the land and
property described in _EXHIBIT B TO UCC-l, attached hereto and
made a part hereof (the-"Property-~; and a- '.
a.ppllances, equipment. ,,~.~ .__ 11 f. lxtures, machine
wh - . f ..... ture ~nd roe ry'
atsoever now or hereafter ...... = L_ ~ .P.~ p r=.y .of every nature
~w~=u my ueDtor an~ Located in or on,
or attached to, or used or intended to be used in connection with
the operation of, the Property, buildings, structures or other
improvements, including, without limitation, all apparatus,
machinery, appliances, equipment, radiators
awnings, shades blin ~_~; ...... _ , ranges, refr~ erators.
, ds, ~=~a~lng an~ nower e~u~ ..... .g . '
p~pes; pumps; tanks; motors; conduits; switchboards; lifting,
'. = ~ ~.L~nu, engines;
cleaning, fire prevention, fire extinguishing, ventilating and
communications apparatus; boilers; vacuum cleaning systems;
elevators; escalators; screens; storm doors and windows; stoves;
wall beds; attached cabinets; partitions, ducts and compressors;
rugs and carpets; draperies; furniture and furnishings; together
with all building materials and equipment now or hereafter
delivered to the Property and intended to be installed therein,
including, without limitation, lumber, plaster, cement, shingles,
roofing, plumbing, fixtures, pipe, lath, wall-heaters, screens,
window frames, glass doors, flooring, paint, lighting fixtures and
unattached refrigerating, cooking, heating and ventilating
appliances and equipment, kitchen goods, hotel goods, restaurant
goods, bar goods, tools, lawn equipment, floor coverings, and
elevators; together with all deposits, proceeds, additions,
improvements and accessions thereto and replacements
substitutions thereto, or
(b) Ail rights, title and interest of Debtor in and to the
minerals, soil, flowers, shrubs, landscaping, crops, trees, timber
and other emblements now or hereafter on the Property or under or
above the same or any part or parcel thereof.
(c) Ail easements, rights of way, streets, ways, alleys,
passages, sewer rights, waters, water courses, water rights and
powers, sanitary and storm sewer systems now or hereafter owned by
Debtor which are now or hereafter located by, over and/or upon the
Property or any part and parcel thereof, and which water system
includes all water mains, service laterals, hydrants, valves and
appurtenances, and which sewer system includes all sanitary sewer
lines, including, without limitation, mains, laterals, manholes and
appurtenances; and all paving for streets, roads, walkways or
2
entrance ways now or hereafter owned by Debtor and which are now or
hereafter located on the Property or any part or parcel thereof,
and all estates, rights, tides, interests, privileges, liberties,
tenements, hereditaments and appurtenances whatsoever, in any way
belonging, relating or appertaining to any of the property
hereinabove described, or which hereafter shall in any way belong,
relate or be appurtenant thereto, whether now owned or hereafter
acquired'by Debtor, and the reversion and reversions, remainder and
remainders, rents, issues and profits thereof, and all the estate,
right, title, interest, property, possession, claim and demand
whatsoever, at law, as well as in equity, of Debtor of, in and to
the same, including, without limitation, all judgments, awards of
damages and settlements hereafter ma~e resulting from condemnation
proceedings or the taking of the Property, or any part thereof
under the power of eminent domain, or for any damage (whether
caused by such taking or otherwise) to the Property, or any part-.
thereof, or to any rights appurtenant thereto.
(d) Ail of Debtor's right, title and interest as lessor in
and to all leases or rental arrangements of the Property, or any
part thereof, heretofore made and entered into, and in and to all
leases or rental arrangements hereafter made and entered into by or
on behalf of Debtor, together with all rents and payments in lieu
of rents, together with any and all guaranties of such leases or
rental arrangements and including, without limitation, all present
and future security deposits and advance rentals.
(e) Ail of Debtor's right, title and interest as seller, in
and to all reservations, contracts or agreements for the sale of
the Property or any part thereof, heretofore made and entered into,
and in and to all such reservations, contracts or agreements
hereafter made and entered into, by or on behalf of Debtor,
together with all deposits and payments in connection therewith,
together with any and all guaranties of such reservations,
contracts or agreements, together will any and all receivables now
or hereafter due Debtor with respect to such reservations,
contracts or agreements.
(f) Ail of the right, title and interest of Debtor in and to
all unearned premiums accrued, accruing or to accrue under any and
all insurance policies now or hereafter provided pursuant to the
terms of security agreements, and all proceeds or sums payable for
the loss of or damage to (1) the Property or personal property, or
(2) rents, revenues, income, profits or proceeds from service
agreements or contracts, leases, franchises, concessions or
licenses of or on any part of the Property.
(g) Ail contracts and contract rights and accounts of Debtor
now or hereafter arising from contracts now or hereafter entered
into in connection with development, construction upon or operation
of the Property (including, without limitation, all deposits held
3
by or on behalf of Debtor, and all management, franchise, and
service agreements related to the business now or hereafter
conducted by Debtor on the Property).
(h) Ail licenses, permits, approvals, certificates and
agreements with or from all boards, agencies and departments,
governmental or otherwise, relating directly or indirectly to the
ownership, use, operation and maintenance of the Property, or the
development, use or construction of improvements on the Property,
whether heretofore or hereafter issued or executed. All rights of
Debtor in and to all architectural and other plans and
specifications, designs, drawings and other information, materials
and matters heretofore or hereafter prepared relating to the
improvements or any construction on the Property, and all abstracts
of title and all other title information relating to the Property.
(i) All accounts, contract rights, goods, inventory,
intangible personal property, licenses, liquor licenses, and all
personal property, whether actually or constructively attached to,
connected with, or associated with the Property, and all proceeds,
products, replacements, additions, substitutions, renewals and
accessions of the foregoing.
(j) Ail of the right, title and interest of Debtor in and to
any trademarks, trade names, names of businesses, or fictitious
names of any kind used in conjunction with the operation of any
business or endeavor located on the Property.
(k) Ail of Debtor's interest in all utility security deposits
or bonds on the Property or any part or parcel thereof.
(1) Ail instruments, documents, chattel papers and general
intangibles relating to or arising from the foregoing collateral
and all cash and non-cash proceeds and products thereof.
(m) All deposits, proceeds, additions, improvements and
accessions theretoand replacements or substitutions thereto in and
to any of the items hereinabove set forth.
(n) Ail of Debtor's right, title and interest, if any, under
the Declaration of Neighborhood Covenants, Conditions and
Restrictions For Parcel K - Pelican Marsh Unit Eight Replat,
recorded or to be recorded in the Public Records of Collier County,
Florida, which Declaration encumbers or will encumber the Property.
All of (a) through (n) above shall also constitute security
for all other indebtedness, whether direct or indirect, absolute or
contingent, now or hereafter existing, between the secured party
and the debtor.
C: \ MATT~.RS \ COME~ICA\KEYSTON~. ~ \~CC-EXHA. ~
12-26-96
4
OR: 2268 PG: 1328
E~BI'T "B" TO UCC-1
LEGAL DESCRIPTION
~a_rcel. K., ?.~LTC~. M&RSH b'NXT EXGHT ~P~T, acco~din~ eo
ae pAa~ ~uereo~, recorded An Pla~ Book 27~ Page~ 42
~hrough 44, of ~he Public Records of Collier Court,F,
Florida, '
5
: A~ "S~ED/~ED PARTY" Page
~7OOOOO 1 8S 1 4----0 -01../24/37--01049--008
:k only If Applicable: ~ Products of collateral are also covered. :~ Proceeds of collateral am also coveeed. I I:~ Dd)tor !/trmwmitliog u~iy.
I
t~ ap~'oprlate box: I~ All documentary stamp taxes due and payable or to become due and payable pursuant to s. 201~ F~ ~ ~ ~
- box must be marked) I [:~ Rodda Documentary Stamp Tax Is not required.
con~mce with s. 679.402(2), F.S., this statement Is flied without the Debtor's signature ~9. Number of additional shee~ pmae~t~d:. 5
rfect a security I ~nt?~t in collatmal: ~
dy s~d~ject to a securW/Interest in armther Jurisdiction when it wa~ brougM Into Ibis
· o~ debit's location cha~Ged to ~l~ state.
ired afte~ a change of name, Identity, or corporate structure of the debtor..
a~re(s) of Debtor(s)
~?~te, Inc., a Florida oorporatic~
P--~-ula J. D~v~-~-~=~-- - ~ ' s, President
ature(s) of Secured Party or if Assigned, by Asalgnee(s)
m Co~y to:
I
Bruoa G. Fedor, Esc~, ~ re
Annis, Mitchell, Cockey, Edwards & Pz~_hn,
8289 Pelican Bay Boulevard, Suite 300
Naples, Florida 44108
~OWLEDGMENT COPY
~-0 !/07,?~ 7--0 ! 077--003
~****41:l. 00
STANDARD FORM - FORM UCC-1
"SKC*dR.RD PARTY"
o
Secured Party**
COM~RICA BANK
3ac
3ac
1st Mailing Address=
Construction Lending Department
1800 Corporate Blvd., N.W. ·
Boca Raton, Florida 33431
2nd MailingAddress:
Commercial Real Estate I
500 Woodward Avenue
7th Floor
MC-3255
Detroit, Michigan 48226
1
EXHIBIT "A" TO UCC-1
Debtor:
Secured Party=
Ivy Pointe, Inc.
Comerica Bank
(a) Ail buildings, structures and improvements of every
nature whatsoever now or hereafter situated on the land and
property described in EXHIBIT "B" TO UCC-l, attached hereto and
made a part hereof (the "Property"); and all fixtures, machinery,
appliances, equipment, furniture and property of every nature
whatsoever now or hereafter owned by Debtor and located in or on,
or attached to, or used or intended to be used in connection with
the operation of, the Property, buildings, structures or other..
improvements, including, without limitation, all apparatus,
machinery, appliances, equipment, radiators, ranges, refrigerators,
awnings, shades, blinds, incinerating and power equipment; engines;
pipes; pumps; tanks; motors; conduits; switchboards; lifting,
cleaning, fire prevention, fire extinguishing, ventilating and
communications apparatus; boilers; vacuum cleaning systems;
elevators; escalators; screens; sto£m doors and windows; stoves;
wall beds; attached cabinets; partitions, ducts and compressors;
rugs and carpets; draperies; furniture and furnishings; together
with all building materials and equipment now or hereafter
delivered to the Property and intended to be installed therein,
including, without limitation, lumber, plaster, cement, shingles,
roofing,' plumbing, fixtures, pipe, lath, wall-heaters, screens,
window frames, glass doors, flooring, paint, lighting fixtures and
unattached refrigerating, cooking, heating and ventilating
appliances and equipment, kitchen goods, hotel goods, restaurant
goods, bar goods, tools, lawn equipment, floor coverings, and
elevators; together with all deposits, proceeds, additions,
improvements and accessions thereto and replacements or
substitutions thereto.
(b) Ail rights, title and interest of Debtor in and to the
minerals, soil, flowers, shrubs, landscaping, crops, trees, timber
and other emblements now or hereafter on the Property or under or
above the same or any part or parcel thereof.
(c) All easements, rights of way, streets, ways, alleys,
passages, sewer rights, waters, water courses, water rights ahd
powers, sanitary and storm sewer systems now or hereafter owned.:by .'~
Debtor which are now or hereafter located by, over and/or upon the "
Property or any part and parcel thereOf, and which water system .'
includes all water mains, service laterals, hydrants, valves and-~~
appurtenances, and which sewer system includes all sanitary sewer
lines, including, without limitation, mains, laterals, manholes ~and
appurtenances; and all paving for streets, roads, walk-wayscJor
2
entrance ways now or hereafter owned by Debtor and which are now or
hereafter located on the Property or any part or parcel thereof,
and all estates, rights, tides, interests, privileges, liberties,
tenements, hereditaments and appurtenances whatsoever, in any way
belonging, relating or appertaining to any of the property
hereinabove described, or which hereafter shall in any way belong,
relate or be appurtenant thereto, whether now owned or hereafter
acquired by Debtor, and the reversion and reversions, remainder and
remainders, rents, issues and profits thereof, and all the estate,
right, title, interest, property, possession, claim and demand
whatsoever, at law, as well as in equity, of Debtor of, in and to
the same, including, without limitation, all judgments, awards of
damages and settlements hereafter ma~e resulting from condemnation
proceedings or the taking of the Property, or any part thereof
under the power of em{nent domain, or for any damage (whether
caused by such taking or otherwise) to the Property, or any part.
thereof, or to any rights appurtenant thereto.
(d) Ail of Debtor's right, title and interest as lessor in
and to all leases or rental arrangements of the Property, or any
part thereof, heretofore made and entered into, and in and to all
leases or rental arrangements hereafter made and entered into by or
on behalf of Debtor, together with all rents and payments in lieu
of rents, together with any and all guaranties of such leases or
rental arrangements and including, without limitation, all present
and future security deposits and advance rentals.
(e) Ail of Debtor's right, title and interest as seller, in
and to all reservations, contracts or agreements for the sale of
the Property or any part thereof, heretofore made and entered into,
and in and to all such reservations, contracts or agreements
hereafter made and entered into, by or on behalf of Debtor,
together with all deposits and payments in connection therewith,
together with any and all guaranties of such reservations,
contracts or agreements, together will any and all receivables now
or hereafter due Debtor with respect to such reservations,
contracts or agreements.
(f) Ail of the right, title and interest of Debtor in and to
all unearned premiums accrued, accruing or to accrue under any and
all insurance policies now or hereafter provided pursuant to the
terms of security agreements, and all proceeds or sums payable for
the loss of or damage to (1) the Property or personal property,
(2) rents, revenues, income, profits or proceeds from service
agreements or contracts, leases, franchises, concessions or
licenses of or on any part of the Property.
(g) All contracts and contract rights and accounts of DebtOr
now or hereafter arising from contracts now or hereafter entered
into in connection with development, cOnstruction upon or operati6n
of the Property (including, without limitation, all deposits h~ld
by or on behalf of Debtor, and all management, franchise, and
service agreements related to the business now or hereafter
conducted by Debtor on the Property).
(h) All licenses, permits, approvals, certificates and
agreements with or from all boards, agencies and departments,
governmental or otherwise, relating directly or indirectly to the
ownership, use, operation and maintenance of the Property, or the
development, use or construction of improvements on the Property,
whether heretofore or hereafter issued or executed. All rights of
Debtor in and to all architectural and other plans and
specifications, designs, drawings and other information, materials
and matters heretofore or hereafter prepared relating to the
improvements or any construction on the Property, and all abstracts
of title and all other title information relating to the Property.
(i) Ail accounts, contract rights, goods, inventory,"
intangible personal property, licenses, liquor licenses, and all
personal property, whether actually or constructively attached to,
connected with, or associated with the Property, and all proceeds,
products, replacements, additions, substitutions, renewals and
accessions of the foregoing.
(j) Ail of the right, title and interest of Debtor in and to
any trademarks, trade names, names of businesses, or fictitious
names of any kind used in conjunction with the operation of any
business or endeavor located on the Property.
(k) Ail of Debtor's interest in all utility security deposits
or bonds on the Property or any part or parcel thereof.
(1) Ail instruments, documents, chattel papers and general
intangibles relating to or arising from the foregoing collateral
and all cash and non-cash proceeds and products thereof.
(m) Ail deposits, proceeds, additions, improvements and
accessions thereto and replacements or substitutions thereto in and
to any of the items hereinabove set forth.
(n) Ail of Debtor's right, title and interest, if any, under
the Declaration of Neighborhood Covenants, Conditions and
Restrictions For Parcel K - Pelican Marsh Unit Eight Replat,
recorded or to be recorded in the Public Records of Collier County,
Florida, which Declaration encumbers or will encumber the Property.
All of (a) through (n) above shall also constitute ~curity
for all other indebtedness, whether direct or indirectl abs~'lute or
contingent, now or hereafter existing, between the secured party
and the debtor.
C: \~r~\COMERICA\~YS~NZ. 2\UCC-ZX~. 2 : ' '
12-26-96
4
LEGAL DESCRIPTION
Parcel K, PuT-ICAN MAR~H UNIT EXGHT REPLAT, according to
the plat thereof, recorded in Plat Book 27, Pages 42
through 4&, of the Public Records of Collier County,
Florida. '
5
COLLIER COUNTY GOVERNMENT
COMMUNITY DEVELOPMENT AND
ENVIRONMENTAL SERVICES DIVISION
ENGINEERING REVIEW SECTION
2800 NORTH HORSESHOE DRIVE
NAPLES, FLORIDA 34104
November 14, 1997
Mr. David Farmer, E.I.
Coastal Engineering Consultants, Inc.
3106 S. Horseshoe Drive
Naples, Fl. 34104
Re: Ivy Pointe
Dear David:
This is to inform you that the above referenced project has been
granted preliminary approval by Engineering Review in compliance
with Collier County Land Development Code, Section 3.2.6.5.2.
Ail water and sewer facilities approved and accepted and required
to be maintained by Collier County shall be conveyed to the
County pursuant to the provisions set forth in Collier County
Ordinance No. 97-17, as amended.
You are reminded that it is your responsibility to petition the
Development Services Director for final approval of the
improvements upon the expiration of the minimum one (1) year
maintenance period. After satisfactory completion of all final
inspections, the Board of County Commissioners shall adopt a
resolution giving final approval of the required improvements,
acknowledging the dedication(s) of the final subdivision plat and
establishing County responsibility for maintenance of the
required improvements if it is the Board's desire to accept and
maintain the facilities.
If you should have any questions or if we may be of assistance,
please advise. - -
Very truly yours,
John R. Houldsworth
Senior Eng±neer
cc: Shirley Nix
Building Review & Permitting
Code Enforcement
Housing & Urban Improvement
(941) 403-2400
(941) 403-2440
(941) 403-2330
Natural Resources
Planning Services
Pollution Control
(941) 732-2505
(941) 403-2300
(941) 732-2502
COLLIER COUNTY
GOVERNMENT
COMMUNITY DEVELOPMENT AND
ENVIRONMENTAL SERVICES DIVISION
ENGINEERING REVIEW SECTION
December 3, 1997
2800 NORTH HORSESHOE DRIVE
NAPLES, FLORIDA 34104
David Farmer
Coastal Engineering Consultants, Inc.
3106 South Horseshoe Drive
Naples, Florida 34104
Re: Ivy Pointe in Pelican Marsh
Dear Mr. Farmer:
This is to inform you that the above referenced project has been granted preliminary
approval by Engineering Review in compliance with Collier County Land Development
Code, Section 3. Ail water and/or sewer facilities approved, accepted and required to be
maintained by Collier County shall be conveyed to the County pursuant to the provisions
set forth in Collier County Ordinance No. 97-17, as amended.
You are reminded that it is your responsibility, to petition the Development Services
Director for final approval of the improvements upon the expiration of the minimum one
(1) year maintenance period. After satisfactory completion of all final inspections., the
Board of County Commissioners shall grant final approval of the required improvements
establishing County responsibility for maintenance of the required improvements if it is
the Board's desire to accept and maintain the facilities.
If you should have any questions or if we may be of assistance, please advise.
Very truly yours,
Shirley Nixf
Engineering Technician II
cc: Paula Davis, President, Ivy Pointe, Inc.
Tim Clemons, Waste~vater Director
Ed Finn, Public Works
Cindy Erb, Public Works
jO~L.~ ~r~..~.~ ....... ~. ~: .... :_~ ~..: ....
Building Review & Permitting (94) 403-24 0
Code Enforcement (941) 403-2440
Housing & Urban Improvement (941) 403-2330
Natural Resources
Planning Services
Pollution Control
(941~ 732-2505
(941) 403-2300
(941) 732-2502
coastal Engfneering Consultants, In~.
Proj eot:
CEC File No.:
H~DROST]%TIC TESTING FOR PRESSURE MAINS
CEC Obse er: 16 N
Contractor Representative:
Description of Line Tested
CALCULATION OF ALLOWABLE LEAKAGE PER ONE (1) HOUR:
(Length of pipe) x (diameter of pipe) x ~ (test pressure) + 133,200
) x; (;~O) +133,200=
) x ~ ( ) + 133,200 =
Total =
Gallons
Gallons
Gallons
( )x(
RESULTS OF TEST:
Length of Test: ~~ Allowable Leakage: ;e,~'~ Gallons
Start Time: IO~CIDAt~ Pressure at Start of test: )~fi) P.S.I.
End Time: i~D~ Pressure at End of test: )~ P.S.I.
NOTE:
Anytime the gauge pressure falls 5 P.S.I. from the
initial starting pressure during the test, the test shall
"FAIL".
Amount of water required to bring
pressure up to beginning pressure:
Test Results: ~ Passed
Gallons
Failed
John P~zh.e.~r-~'-~"~'-.
Coast~ Engineering
Consultants, Inc.
Date
j pa\prestes~
Department of
Environmental Protection
South District
Lawton Chiles 2295 Victoria Avenue, Suite 364 Virginia B. Wethereli
Governor Fort Myers, Florida 33901-3881 Secretary
October 15, 1997
Paula Davis, President
Ivy Pointe, Inc.
9051 Tamiami Trail North, Suite 202
Naples, Florida 34108
RE: Collier County - PW
Ivy Pointe
(Collier County Regional WTP)
DS11-305328
Dear Ms. Davis:
This acknowledges receipt of certification that the subject water
distribution system extension has been completed in accordance
with the plans and related materials permitted by this agency
under Permit Number DS11-305328 dated May 5, 1997.
Based on this certification and satisfactory bacteriological
results, we are approving these facilities for service. Your
continued cooperation in our water supply program is appreciated.
S~erely,
Gary A. Maier~~'
Professional Ehgineer
GAM/OJO/skw
cc: John P. Asher, P.E.
Michael R. Newman
"Protect, Conserve and Manage Florida's Environment and Natural Resources"
Printed on recycled paper.
FLORIn^
Lawton Chiles
Governor
Department of
Environmental Protection
South District '" ;
2295 Victoria Avenue, Suite 364
Fort Myers, Florida 33901-3881
(941) 332.,~975
RECEIVED
...... ,.NOV 0 6 1997
WASTEWATF_.R DEPARTMENT
Virginia B. Wetherell
Secretary
November 4, 1997
Timothy L. Clemons, Wastewater Director
Collier County Public Works
3301 E. Tamiami Tr.
Naples, FL 34112
Dear Mr. Clemons:
Re:
Collier County - DW/CS
Ivy Pointe
Permit No. CS 11-305336
Connected to: Collier County/North
Regional WWTP
Clearance for Use
We have received a certificate of completion of construction on October 22, 1997, as
submitted by Coastal Engineering Consultants, Inc. for the project authorized by the
above permit number. Accordingly, the sewer collection/transmission system may be
placed into service.
HWY/JK/dd
cc: John P. Asher, P.E.
Harley,~. Yo~ Ph.I$., P.E.
Water Facilities
Section Manager
Printed on recycled ~aper,
FINAL RELEASE OF LIEN
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, for and in consideration of the payment of the sum of TEN
DOLLARS (10.00) paid by KEYSTONE CUSTOM HOMES., receipt of which is hereby
acknowledged, hereby releases and quit claims to the said 1VY POINTE AT PELICAN
MARSH its successors and assigns, and the owner, all liens, lien fights, claims or demands of any
kind whatsoever, which the undersigned now has or might have against the building on premises
legally described as
IVY POINTE AT PELICAN MARSH
PARCEL K, UNIT 8
TOWNSHIP 48S, RANGE 25E, SECTION 34 & 35
COLLIER COUNTY, FLORIDA
on account of labor performed and/or material furnished for the construction of any
improvementsthereon. That all labor and materials used by the undersigned in the erection of said
improvements have been fully paid.
IN WITNESS WHE~OF, I have hereunto set my hand seal,s 23rd day of
September, 1997 /
WIT~. SS~ES: ~--~ // FLORIDA STAT/~ UNDER. GROUND, INC.
STATE OF FLORIDA
COUNTY OF COLLIER
The foregoing instrument was acknowledged before me this 23nd day of September, 1997 by
Thomas P. McKimm, on behalf of the company who is personally known to me and did not
take a~oat~i---~ .//
// .//' /...
~~./ ~?/~. :;z"~ ,~//~ My Commission Expires:
NOT^~Cv ' ) ~
Notary PulPit - State of Florida 1
My Commission E~ires Sep 19, 200
Commission # CC670403
State of Florida
Departmnt of Health
Office of Laboratory Services
Jacksonville, Niemi, Pensacola
Tampa, West Palm Beach
DRINKING WATER
BACTERIOLOGICAL ANALYSIS
FOR LAB USE ONLY
Press hard, (5) copies
SYSTEM NAME: SYSTEM I.D. NO: SYSTEM PHONE #:
COUNTY: DISTRICT:
ADDRESS:
COLLECTOR PHONE #:
COLLECTOR:
SAMPLE SITE (Locality or Subdivision):
OATE AND TIME COLLECTED:
TYPE OF SUPPLY(Circle one)=:,~Community water syste~ Noncomemdnity water system Nontransient - noncon~unity water system
· Pri-~rate wet'[' Shining pool Bottled water Limited Use system
TYPE OF SAMPLE(Circle one): Compliance Repeat Replacement ,~ Main clearanc&? Well survey Other
(Check Box) [ ] Check here if payment made
[ ] Distribution to county public health unit
] Raw
TO BE COMPLETED BY LAB
TO ~D BY COLLECTOR OF SAMPLE ANALYSIS METHOD: ~ MF-- MTF ~MMO-M~G PA
COLL. SAMPLE POINT C[ NON CONFIRM CONFIRM
NO. (Specific Address) RES'D pH COLIFORM *TOTAL TOTAL FECAL E. COLI SAMPLE NUMBER
............ ~ ~1~ ,nn~(Pm:tinn will fOllOW in 24-48 hours.
* Results i this cotun~q are pres~nptive. Total coliform and fecal coliform or E._:. __ c
p - Coliforms are present C - Confluent growth TA - Turbid, Absence of gas or acid
A - Coliforms are absent TNTC - Too numerous to count
INVOICE ADDRESS (if different than address below): INTERPRETATIONS-R~MARKS BY. PROGPJkM REVIEWER
NAME AND MAILING RDDRESS OF PERSON/FIRM TO RECEIVE REPORT
REVIEWING OFFICIAL:
TITLE:
( )
( ) SATISFACTORY
( ) INCOMPLETE COLLECTION INFORMATION
( ) REPEAT SAMPLES
( ) REPLACEMENT SAMPLES
..~ ,- State of Ftoricla
~ Department of HeaLth
Office of Laboratory Services
JacksonviLle, Miami, Pensacola
Tampa, West Palm Beach
DRINKING WA TER
BACTERIOLOGICAL ANAL ¥SIS
FOR LAB USE ONLY
Press hard, (5) copies
SYSTEM NAME:
SYSTEM I.D. NO:
SYSTEM PHONE #:
ADDRESS: COUNTY: DISTRICT:
COLLECTOR:
COLLECTOR PHONE #:
SAMPLE SITE (Locality or Subdivision):
DATE AND TIME COLLECTED:
TYPE OF SUPPLY(Circle one): :iCommunity water system- Noncorm~nity water system
PFTV*~ Well Swimming pool Bottled water
TYPE OF SAMPLE(Circle one): Compliance Repeat Replacement
(Check Box)
Nontransient - noncommunity water system
Limited Use system
Well survey Other
[ ] Distribution [ ] Check here if payment made
[ ] Raw to county public health unit
TO BE COMPLETED BY COLLECTOR OF SAMPLE TO,,mBE COMPLETED BY LAB ~
ANALYSIS METHOD~ MF/ MTF HMO-MUG ~PA'-
COLL. SAMPLE POINT CL NON CONFIRM CONFIRM
NO. (Specific Address) RES'D pH COLIFORM *TOTAL TOTAL FECAL E. COLI SAMPLE NUMBER
* Results in this column are presun~otive. Total coliform and fecal coliform or E. coli confirmation will follow in 24-48 hours.
P - Co[iforms are present C - Confluent growth TA - Turbid, Absence of gas or acid
A - Coliforms are absent TNT( - Too numerOus to count
iNVOICE ADDRESS (if different than address below):
INTERPRETATIONS-REMARKS BY. PROGRAM REVIEWER
NAME AND MAILING ADDRESS OF PERSON/FIRM TO RECEIVE REPORT
REVIEWING OFFICIAL:
TITLE:
( )
( ) SATISFACTORY
( ) INCOMPLETE COLLECTION INFORMATION
( ) REPEAT SAMPLES
( ) REPLACEMENT SAMPLES
as President of Ivy Pointe, Inc., a Florida corporatio, n, the
The undersigned, Paula Da¥is, "A" hereto and incorporated hereto,
owner of the real property described in Exhibit attached
hereby certifies that B2; pointe, Inc. has receiYed no contributions in aid of construction of the
water and sewer utility facilities contained in the Exhibit "A" property.
I¥¥ poiNTE, INC.,
a Florida corporation
Paula Da~S
Its: President
[CORPORATE SEALI
EXHIBIT "A"
Tract A as shown on thc Plat of Ivy Pointe, recorded in Plat Book 28, Page 33,
Public Records of Collier Count, Florida.
FLORIDA STATE UNDERGROUND, INC.
C ~)N I RAC, I OR'S CERTIFIED LIST OF INSTALLED MATERIALS & COSTS
SYSTEM NAME: INVY POINTE IN PELICAN MARSH
THIS IS A: WATER SYgTEM XX
DATE: AUGUST 22, 1997
SEWER SYSTEM
ITEM DESCRIPTION SIZE QUANTITY UNIT COST TOTAL COST
8" X 8" HOT TAP 1 EA 2,424.52 2,424.52
8" C900 DR18 PVC 1200 LF 10.19 12,228.00
8" GATE VALVE 1 EA 572.79 572.79
FIRE HYDRANT ASSEMBLY 3 EA 1,674.96 5,024.88
PERM BACT. SAMPLE PTS 1 EA 850.88 850.88
SINGLE WATER SERVICE 6 EA 240.30 1,441.80
DOUBLE WATER SERVICE 19 EA 332.23 6,312.37
TOTAL 28,855.24
I DO HEREBY CERTIFY THE ABOVE DESCRIBED LIST OFMATERIALS, QUANTITIES OF MATERIALS, KINDS OF
MATERIALS, INCLUDING INSTALLATIONAND ALL COSTS AS INSTALLED, TO BE COMPLETE, TRUE AND
ACCURATE AS PER FINAL PAY ESTIMATE AND/OR ALL INVOICES OR STATEMENTS OF (BY OR FROM) THIS
CERTIFYING CONTRACTOR AND AS PER THE PROJECT AND/OR DESIGN ENGINEERS CERTIFIED RECORD
DRAWINGS OF THIS SYSTEM AS DESCRIBED BY NAME SHOWN, AS OF THIS DATE.
PERSONALLY KNOWN, SWORN TO _CERTIFYING: ~
~AY~.O~F/~,/g~]~,': ' ,1997 ~ _~/.~'~'~.~...~I~,PRESIDENT
//~/~ ~'/ /d/ _. -.~,.~ ......... FLORIDA"~"ffATE UNDERGROUND, INC.
C: \O FFIC E~,WPWIN~WPI)O C51\C ERT LIST
FLORIDA STATE UNDERGROUND, INC.
CONTRACTOR'S CERTIFIED LIST OF INSTALLED MATERIALS & CO~
SYSTEM NAME: INVY POINTE IN PELICAN MARSH
DATE: AUGUST 22, 1997
THIS ISA: ~ AIERSYSFEM
SEWER S5 ~ 1 [zM XX
ITEM DESCRIPTION SIZE QUANTITY UNIT COST TOTAL COST
8" SDR35 PVC 0/6 8" 670 LF 13.08 8,763.60
8" SDR35 PVC 6/8 8" 418 LF 15.08 6,303.44
SANITARY MANHOLE 0/6 3 EA 980.70 2,942.10
SANITARY MANHOLE 6/8 2 EA 1,155.60 2,311.20
SANITARY MANHOLE 12/14 1 EA 2,473.40 2,473.40
6" LATERAL SINGLE 6" 4 EA 249.30 997.20
6" LATERAL DOUBLE 6" 20 EA 307.19 6,143.80
CONNECT TO EXISTING 1 LS 463.04 436.04
TOTAL 30,370.78
I DO HEREBY CERTIFY THE ABOVE DESCRIBED LIST OFMATERIALS, QUANTITIES OFMATERIALS, KINDS OF
MATERIALS, INCLUDING INSTALLA TION AND ALL COSTS' AS INSTALLED, TO BE COMPLETE, TRUE AND
ACCURATE AS PER FINAL PAY ESTIMATE AND/OR ALL INVOICES OR STATEMENTS OF ('B Y,,,(~ FROM) THIS
CERTIFYING CONTRACTOR AND AS PER THE PROJECT AND/OR DESIGN ENGINEERS C,~?IFIED RECORD
DRAWINGS OF THIS SYSTEM AS DESCRIBED BY NAME SHOWN, AS OF THIS DATE. ,/:/
PERSONALLY KNOWN, SWORN TO
& SUBSCRIBED BEFORE ME THIS
(' 01' sEAL
C:\OFFICE\WPWE~WPDOCS\CERTt,IST
CERTIFYING:
~~ '~~~q~, INC.
(SEAL)
COASTAL
ENGINEERING
CONSULTANTS
INC
Coastal Engineering
Civil Engineering
Survey
Environmental
Real Estate Appraisal
September 24, 1997
Collier County Development Services
2800 North Horseshoe Drive
Naples, Florida 34104
Ivy Pointe
C.E.C. File No. 96.469
To Whom it May Concern:
I hereby certify that to the best of my knowledge and belief that all of the water and sewer main
facilities within Ivy Pointe are located within the platted Right-of-Way.
If you have any questions or require additional information, please contact our office.
Sincerely,
COASTAL ENGINEERING CONSULTANTS, INC.
J~P. Asher, P.E~''-
96469\pre-util.acp
3106 S. HORSESHOE DRIVE · NAPLES, FLORIDA 34104 · (941) 643-2324 · FAX (941) 643-1143
August 22, 1997
Board of Collier County Commissioners
3301 Tamiami Trail East
Naples, FL. 33964
WATER DISTRIBUTION SYSTEM
IVY POINTE AT PELICAN MARSH
COLLIER COUNTY
NAPLES, FLORIDA
Gentlemen:
This letter is to certify the completion of the WATER DISTRIBUTION SYSTEM
located within IVY POINTE AT PELICAN MARSH. Florida State Underground, Inc.
furnishes at least a one (1) year guarantee of material and workmanship on the system,
upon acceptance by the Collier County Board of Commissioners.
Sincerely,
TPM/cvk
C:\office\~pwin\wpdocs~ccwarr
73 COMMERCIAL BOULEVARD · NAPLES, FLORIDA 34104 · 643-6449 · FAX: 643-6891
August 22, 1997
Board of Collier County Commissioners
3301 Tamiami Trail East
Naples, FL. 33964
SEWER DISTRIBUTION SYSTEM
IVY POINTE AT PELICAN MARSH
COLLIER COUNTY
NAPLES, FLORIDA
Gentlemen:
This letter is to certify the completion of the SEWER DISTRIBUTION SYSTEM
located within IVY POINTE AT PELICAN MARSH. Florida State Underground, Inc.
furnishes at least a one (1) year guarantee of material and workmanship on the system,
upon acceptance by the Collier County Board of Commissioners.
Sincerely,
~P~sident
TPM/cvk
C:\office\wl~vin\wpdocs\ccwarr
73 COMMERCIAL BOULEVARD · NAPLES, FLORIDA 34104 · 643-6449 · FAX: 643-6891
Official Receipt - Collier County Board of County Commissioners
CDPR1103 - Official Receipt
~ 4~426 ....... ~_1~)-i797 4'33'38 PM 12/2/97 UT 27948
FLORIDA STATE UNDERGROUND
73 COMMERCIAL BLVD
Payor ' FL STATE UNDERGROUND
Fee Information
[¢e~ c~'~crip~i0n .......... Gl~-~,coun-t .......... ...... Amount i Waived I
'42CY N-- i C](JNT~]N~01CE~- .... ] 4~8-0-0000]-i;I-~10000(J00- -$45--~-~)6 I i
Total $45~.~_6.i
Payments
payment (:;ode i ACcount/Check ~umber - ; Amount
i CHEC-K .......... .... 1739~ ........ ; ~4,~6.96
Total Cash ! "$'~:0-0-i
Total Non-Cash ~ $456~96-
Total Paid
Memo:
FULL BORE FLUSH AT IVY POINTE AT PELICAN MARSH
INVOICE #27563
PAID $456.96
Cashier/location: FROLOFF E / 1
User: MOROCCO G
Collier County Board of County Commissioners
CD-Plus for Windows 95/NT
Printed: 12/1/97 4:34:08 PM
1l-1~-97 12:~9 COASTAL ENGINEERING CON~ INC ID=i 94! 84G 2~24 P.~I
FIRE PREVENTION BUREAU
144t PINE RIDGE ROAD * NAPLES, FLORIDA 34109
(941) 597-9227
FAX (941) S97-7082
Oct. 30, 1997
David H. Farmer
Coastal Engineering Consultants, Inc.
3106 So. ~orseshoe Dr.
Naples, FL 34~04
RE: F'i=e Hydrant 'Acceptance
Ivy Pointe - 3 Hydrants
Dear David,
The North Naples Fire Control and Resoue District has inspected
and received our fees for ownership and maintenance of the
above hydrants. We wilt accept ownership and maintenance
at this time.
The following are the.results of a flow test:
Static 66
Residual 44
GPM 857
Pitot 26
If you have any questions, please do not hesitate to give
me a call.
Sincerely,
NORTH NAPLES .FIR~. DEPARTMENT
Fire Marshal
Fire Prevention Bureau
KKR:sc
Post-lt~ Fax Note 7671
Project:
CEC File No.:
Coastal Engineering Consultants, Inc.
$~NIT~Ry S~R ~N~ILTP~TION TESTING
Date of Test : ~' ~ 6- ~
CEC Observer: ~b~C ~
Utility Co. Observer: ;J~
Description of Line Tested:
C]%LCUL~TION OF ]%L_LOW~BLE INFILTRATION PER 24 HOURS:
(Lengt. h of pipe) / 5280' x (diameter of pipe) x 50 gal/day
(~n feet) (in inches)
(~/d~O ) / 5280' x ( ) x 50 gal/day
units (occupied) x gal/day
bldg. ( units) w/
RESULTS OF TEST:
Total
Gallons
Gallons
Gallons
Gallons
Ganons
Length of Test: ~ hour(s), Allowable Infiltration: ~Z~ Gallons
Calculation of Actual Infiltration:
Test meets
Engineer:
John P A~~she. r, P. E~~.
Coast/ Engineering
jpa\inf t ~esl:
project specifications:
Consultants, Inc.
Z YES
NO
Date
WASTEWATER DEPARTMENT
PROJECT VIDEO REVIEW
DATE OF REV]'EW:
PROJECT NAME:_~XX Pointe in Pelican Marsh
ENGINEER OF
CONSTRUCTION CONTRACTOR.: Fl. St. Underground
VIDEO CONTRACTOR: Sewer Viewer
COMMENTS: None
RECOMMENDATIONS:
[ xx
[
[
[
] ACCEP IABI,E:
] REVIEW NUMBERED COMMENTS iN ONE YEAR:
] NUMBERED COMMENTS UNACCEPTABLE: {REPAIR/REPLACE}:
] OTHER RECOMMENDATIONS:
DOC.42
COLLIER COUNTY GOVERNMENT
COMMUNITY DEVELOPMENT SERVICES DIVISION
2800 NORTH HORSESHOE DRIVE
NAPLES, FL 53942
(941) 645-8400
.~, CERTIFIED BLUE CHIP COMMUNITY
PLANNING SERVICES DEPARTMENT
ENGINEERING REVIEW SECTION
September 30, 1997
David Farmer
Coastal Engineering Consultants
3106 South Horseshoe Drive
Naples, Florida 34104
RE: Ivy Point at Pelican Marsh, Water & Sewer
Dear Mr. Farmer:
A preliminary inspection of the referenced project was conducted by Randy Casey of the
Engineering Review Section of the Planning Services Department on September 30, 1997.
Conditions were found to be acceptable, and appear to meet County standards.
If you should have any questions, please do not hesitate to call Randy Casey at (941) 403-2418
or Clyde Fugate at (941) 403-2417.
Sincerely,
Engineering Inspections Supervisor
CF/RC/pd/f:Casey/Water Sewer Preliminary Approval (Ivy Point) 9-30-97
CCi
Cindy Erb, Engineering Technician, Public Works
Timothy L. Clemons, Wastewater Director, Utilities
Mike Newman, Water Director, Utilities
Evelyn Ferguson, D.O.R. Billing Supervisor
Randy Casey,Engineering Inspector,Engineering Review Section
Shirley Nix, Engineering Tech. II,Engineering Review Section