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Facilities Maintenance Agreement FACILITIES MAINTENANCE AGREEMENT 1::,;- 1 THIS AGREEMENT is made this ..3l": day of - ~ \J 't. ' 2008, by and between Port of the Islands Marina Condominium Association, Inc., Florida non-profit corporation (the "Association") and The Islands Marina, LLC, a Florida limited liability company, its successors and/or assigns (the "Islands"). RECITALS WHEREAS, the Islands is the "Developer" of the Port of the Islands Marina, a Condominiwn (the "Condominium"), as defined and described in the Declaration of Condominiwn of Port of the Islands Marina, a Condominium, as recorded in Official Records Book 2834, Page 877, as amended by Amendment recorded in Official Records Book 3385, Page 429, by Second Amendment recorded in Official Records Book 4177, Page 2033, by Third Amendment recorded in Official Records Book 'f'fcf:>, Page 3S-9o, and by Fourth Amendment recorded in Official Records Book '/lIDs-, Page 6u:> IS-; all of the Public Records of Collier County, Florida (the "Declaration"); and WHEREAS, the components of the Condominiwn, as described in the Declaration, include both: 1. A basin which includes submerged lands; wet slips and related piers, pilings, and gangways; a supporting seawall; and an uplands stormwater retention area (described in the Declaration as Phases 1,2, 3, 4, 5, 6, and 10) (the "Basin Component"); and 2. uplands which include parking, fire protection systems, restrooms, water management areas and stormwater drain lines, streets, driveways, sidewalks, utilities, landscaping, lighting, a boat ramp and boat launch staging area, and proposed dry storage condominiwn units (which proposed dry storage units have not been constructed or legally created) described in the Declaration as Phase 9 (the "Uplands Component"); and WHEREAS, the parties agree and acknowledge that, as of the date of this Agreement, the Basin Component Unit Owners and their guests and invitees use the Uplands Component facilities that are owned by Islands; and WHEREAS, the Declaration requires the Association to collect assessments from the Owners of Units within the Condominiwn to offset the expense of maintaining, repairing (including extraordinary repairs), and insuring Condominium Common Areas (including ad valorem property taxes); and WHEREAS, as is permitted under Sections 7.2, 30.1, and 30.2 of the Declaration, the Developer has elected to develop the Uplands Component separate and apart from the Basin Component and separate from the Condominiwn; and WHEREAS, the Declaration requires the cost of maintaining, repamng (including extraordinary repairs), and insuring the facilities, equipment, and improvements on the Uplands Component (including ad valorem property taxes) which serve the Basin Component (the "Maintenance Expenses") to be shared between the Association and the Islands because such facilities, equipment, and improvements would otherwise have been included in the Condominium Common Areas if the Islands had elected to develop the Uplands Component and the Basin Component as a single condominiwn; and WHEREAS, Section 30.1 of the Declaration provides that such Maintenance Expenses are to be assessed between the Association and the Islands pro-rata based on the relative nwnber units within the Basin Component and the Uplands Component; and I--t>~= :z:: '""iiDi:l ro o-a 0-3:Jo.o.-.- Di:lZt;-':;;:O ~.. .. c"" ~ ~>= ~== ~~ ~ ~ ~ ~== ... ~~ ~ ~'"' . > =z => ~'" ~~ '"' ~ z ... = -~ ~~ ~= ~= -= ~~ ~= :g >---'_ ..,J::::o = '" "-' ~ ~...,. '-'-~CT"'I - -..J ~ ~ <...v ~~-.J >~ ::z::;::: C) ~t:-o ::::0 I--t::<:l .... "'~ '" ~ 0--3g ...J:::::> ~~ ...r::::. ~OO-> = ~ -..J = ~~ ~g I-[::lI n;::; G"); t:-' Di:I ...... ~= = ,.., ~ 0-> g<J"> Oio:> _~ c...u ~ ~ = ~ ~ ~ ~ ~ C;; ~ = - WHEREAS, as of the date of this Agreement, the total number of Units legally and physically existing in the Basin Component is 175 and the total number of Units legally and physically existing on the Uplands Component is I; and WHEREAS, Islands expects that the Uplands Component, once developed, will contain less than 175 condominium units (separate and apart from the Condominium), which - under the Declaration - would result in an allocation of fifty percent (50%) or more of the Maintenance Expenses to the Basin Component; and WHEREAS, until the Islands has completed development of the Uplands Component, the parties wish to agree on: I. The equitable division of Maintenance Expenses for the Uplands Component facilities; 2. the collection of related Assessments by the Association; and 3. the payment of a portion of said Assessments to the Islands to offset the Basin Component's pro-rata share of the Upland Component's Maintenance Expenses. NOW THEREFORE, in consideration of the foregoing premises and for other valuable considerations, the receipt and sufficiency of which is hereby acknowledged, the Association and the Islands hereby agree as follows: I. Incorporation of Terms and Recitals. Defined terms set forth in this Agreement, as denoted by initial capitalization, shall have the meaning ascribed to them in the Declaration unless otherwise defined herein. The foregoing recitals are incorporated into the following terms, conditions, agreements, and clauses. 2. Division of Maintenance Expenses. Until the development of the Uplands Component has been completed by the Islands, the Maintenance Expenses for those portions of the Uplands Component which also serve or benefit the Basin Component, including without limitation the salaries and benefits of the dockmaster and maintenance personnel; the cost of maintaining, repairing (including extraordinary repairs), insuring, cleaning, and providing utility services to the restrooms, fish cleaning area(s), boat ramp, parking spaces, streets, driveways, sidewalks, lighting, utilities, drainage facilities, and landscaping (the "Shared Expenses"), shall be equally divided between: I. the Islands; and 2. the Association, as the representative of the Owners of Units within the Basin Component. The parties agree to the foregoing equal division of Maintenance Expenses. Upon the completion of development of the Uplands Component, the division of Shared Expenses shall be adjusted in accordance with the relative nwnber of condominiwn units on the Uplands Component and the Basin Component. By way of example, expenses shall be equally shared between the Association and the Islands (i.e., 50% attributable to each) in the event the Uplands Component is developed to contain 175 units (due to the equal nwnber of units within each component). 3. Collection and Pavment of Maintenance Expenses. The Association shall be responsible for collecting and paying the Basin Component's share of the Shared Expenses as a line item in the Association budget. On or before December 31 st of each year, the Islands shall provide the Association with its estimate of the Shared Expenses and the Association's portion of the Shared Expenses shall be included in the Association budget for the pending fiscal year. In the event the actual Shared Expenses for said fiscal year are more or less than the estimated Shared Expenses, then the shortfall or excess shall be reflected in the next subsequent Association budget. The Islands shall provide the Association with such invoices, bills, contracts, agreements, and related data as may be reasonably required for the Association to confirm the amount of the Shared Expenses from time to time. The Basin Component's portion 2 = :A:I ...". ...". 0-> -..J >-c:l G) 0-> <J"> 0:> ...". of the Shared Expenses shall be paid to the Islands by the Association by the 15'h of each month; provided, however, that the Islands reserves the right to have such payments made directly to the corresponding vendor(s) or service providers. Any payment of the Shared Expenses which is not made by the Association on the date due shall be subject to a late fee in an amount equal to 5% of the payment or $25, whichever is greater. 4. Lien to Secure Pavment. Islands shall have a lien on the Basin Component, including each Condominium Unit therein, securing payment of the Basin Component's share of the Shared Expenses, including interest and attorney;s fees and costs incurred by Islands incident to the collection of the payment or enforcement of the lien, whether before, during or after a lien foreclosure suit. The lien is perfected upon recording a Claim of Lien in the Public Records of Collier County, Florida, stating the description of the Basin Component; or, at the election of the Islands, an individual Condominium Unit, the name of the record owner, the assessments past due and the due dates. The lien is in effect until barred by law. The Claim of Lien secures all unpaid portions of the Shared Expenses coming due prior to a final judgment of foreclosure. Upon full payment, the Association (or the Unit Owner making the payment) is entitled to a satisfaction of the lien. In the event Islands files a Claim of Lien hereunder, any Basin Component Unit Owner who separately makes its pro-rata payment of the Shared Expenses to the Islands shall be relieved of the obligation of contributing towards the Island's expenses of filing, enforcing, and foreclosing the lien. 5. Parties Bound. All the covenants and obligations set forth herein are intended to be and shall be construed as covenants and servitudes running with the Uplands Component and the Basin Component, and shall be binding upon and inure to the benefit of each party hereto, its respective successors in interest, grantees, tenants and assigns. In the event the Islands conveys something less than its entire interest in the Uplands Component, it may assign its rights under this Agreement in conjunction with such assignment. 6. Severabilitv. This Agreement is intended to be performed in accordance with and only to the extent permitted by all applicable laws, ordinances, rules and regulations. If any term, clause or provision of this Agreement, or the application thereof to any person or circwnstance, shall for any reason and to any extent be determined or held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remainder of this Agreement and the application of such provision to other persons or circwnstances shall not be affected thereby and shall be enforced to the maximwn extent possible. In lieu of any such term, clause or provision of this Agreement which is so determined or held by a court to be illegal, invalid or unenforceable, there shall, to the extent practicable and reasonable, given the circwnstances, be inserted as a part of this Agreement a term, clause or provision as nearly identical to that stricken from this Agreement by virtue of such determination or holding which is not illegal, invalid or unenforceable. The provisions of this Section shall apply to any amendment of this Agreement. 7. Miscellaneous. This Agreement shall not create an association, partnership, joint venture, or a principle and agency relationship between the Islands and the Association, or their tenants, licensees, successors or assigns. This Agreement embodies the entire understanding of the parties with respect to the subject matter herein, and the terms control over all prior understandings. No modifications of this Agreement shall be enforceable unless in writing and signed by the parties to this agreement. If any litigation is brought to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its costs and attorney's fees, including those incurred on appeal. Neither the failure of a Party to insist upon a strict performance of any of the terms, provisions, covenants, agreements and conditions hereof, nor 3 C> :A:I ...". ...". 0-> -..J >-c:l G) 0-> <J"> 0:> <J"> the acceptance of any item by a Party with knowledge of a breach of this Contract by the other Party in the performance of their respective obligations hereunder, shall be deemed a waiver of any rights or remedies that a Party may have or a waiver of any subsequent breach or default in any of such terms, provisions, covenants, agreements and conditions. In addition, the Parties may grant such extensions of time as the Parties may deem proper under the circumstances without waiving their respective rights thereafter as set forth in this Contract. 8. Ratification bv Association. This Agreement has been ratified and approved by a vote ofa majority of the Association Board at a duly-noticed meeting on the 31 s, day of July, 2008. 9. Recordinl!: of Al!:reement. The Islands shall be entitled to record this Agreement, or a summary, memorandwn, or facsimile version thereof, in the Public Records for Collier County, Florida. WITNESSES: ~~~- ~~~~ WITNESSES: The Islands Marina, LLC, a Florida limited Iiabili pany cS Port of the Islands Marina Condominium Association, Inc., a Florida not-for-profit corporation \ By:C~. oS \ Christopher Shucart, its President ATTEST: C> :A:I es Shucart, its Secretary ...". ...". 0-> -..J STATE OF FLORIDA COUNTY OF COLLIER On thiJ/~y of ~ V ,2008, before me personally appeared JAMES SHUCART, as Manager of The Is ., C, a Florida limited liability company, on behalf of said company, who ly known to me a who did not take a~ ~ ~UbliC Printed Name My Commission Expires: >-c:l G) 0-> <J"> OC> en 2-....., WIl.LIAM JACK DeMPSEY 4 STATE OF FLORIDA COUNTY OF COLLIER On thi,jrJday of~"'..( V , 2008, before me ersonall appeared CHRISTOPHER SHUCART, as President of Port of the Islands Mar' ondominium Ass . tion, Inc., a Florida not-for-profit corporation, on behalf of said corporat' is personally know to me and who did not take an oath. ------~ ~~~, Wi!' , . " . W1L.UAM JACK DEMPSEY MY COMMISSION I 00 754172 EXPIRES: March 6, 2012 3ondadThluNatatyP~UnMrNtiet'$ ota Public Printed Name My Commission Expires: F:\wpdocs\REVCS Development, LLC\Port of the Islands Marina\A.GREEMENT REGARDING MAINTENANCE EXPENSES (July 31 ).doc 5 ,.. ,.. ,.. -- OC> <J"> c::> C> :A:I ...". ...,. 0-> -..J >-t:::t G"l c::> 0-> <J"> OC> en >- ,.. ,.. ,..