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Exhibit 10.9
PREPARED BY AND WHEN RECORDED RETURN TO:
XXXXXX X. XXXXXXXXXX, ESQUIRE
XXXX XXXXXX XXX 0000
XX. XXXXXXXXXX, XXXXXXX 00000-0000
DRIVEWAY EASEMENT AGREEMENT
This DRIVEWAY EASEMENT AGREEMENT ("Agreement") is made and entered into on
May 27, 1999 by and between LIFE SCIENCES, INC., a Delaware corporation ("LSI"),
and CAVAFORM, INC., a Florida corporation ("Cavaform").
RECITALS:
(a) LSI is the owner of the real property situate, lying and being in
Pinellas County, Florida and described on the attached Exhibit A, which is
incorporated herein by this reference ("Exhibit A), as PARCEL ONE. This property
and each part thereof is sometimes referred in this Agreement as the "LSI
Property".
(b) On or about the date hereof, Cavaform became the owner, through
acquisition from LSI, of the real property situate, lying and being in Pinellas
County, Florida and described on Exhibit A as PARCEL TWO. This property and each
part thereof is sometimes referred to in this Agreement as the "Cavaform
Property".
(c) By this Agreement, the parties desire to establish and to regulate a
driveway easement from 00xx Xxxxxx Xxxxx, Xx. Xxxxxxxxxx, Xxxxxxx for ingress
and egress to and from the LSI Property and the Cavaform Property (sometimes
collectively referred to herein as the "Benefited Property"), such driveway
easement (the "Driveway Easement") to be over the southerly portion of the LSI
Property and the northerly portion of the Cavaform Property. Such southerly and
northerly portions of property are more particularly described as the real
property situate, lying and being in Pinellas County, Florida and described on
Exhibit A as PARCEL THREE (the "LSI Easement Parcel") and PARCEL FOUR (the
"Cavaform Easement Parcel"). The LSI Easement Parcel and the Cavaform Easement
Parcel are sometimes collectively referred to in this Agreement as the "Easement
Area". The Easement Area is more particularly described as the real property
situate, lying and being in Pinellas County, Florida and described on Exhibit A
as PARCEL FIVE.
NOW, THEREFORE, in consideration of the foregoing and the covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by LSI and Cavaform, the parties
agree as follows:
1. RECITALS. The foregoing recitals are true and correct, and are incorporated
herein by this reference.
2. GRANTS OF EASEMENTS. On the terms and conditions herein contained, LSI hereby
grants to Cavaform, and to the successors in title to the Cavaform Property, for
the use and benefit of the Cavaform Property, a perpetual, non-exclusive
easement for ingress and egress to the Cavaform Property, on, over and across
the LSI Easement Parcel. On the terms and conditions herein contained, Cavaform
hereby grants to LSI, and to the successors in title to the LSI Property, for
the use and benefit of the LSI Property, a perpetual, non-exclusive easement for
ingress and egress to the LSI Property, on, over and across the Cavaform
Easement Parcel.
3. USE. Without limiting the other provisions of this Agreement, the Driveway
Easement may be used for the intended purpose of providing ingress and egress to
and from the Benefited Property by the respective employees, agents, tenants,
subtenants, licensees, mortgagees in possession, customers and business invitees
of the owners of the Benefited Property. Neither of the parties shall do
anything that will impair the use of the Driveway Easement for its intended
purpose; provided, however, that limited impairment of use resulting from
construction, repair and maintenance of improvements to the Driveway Easement is
not a breach of this provision. Parking or standing of vehicles in the Driveway
Easement is not permitted, except as requisite in and about the construction,
repair and maintenance of improvements to the Driveway Easement.
4. COVENANTS RUNNING WITH THE LAND. The terms, covenants and conditions set
forth in this Agreement shall run with the real property described herein (i.e.,
the Benefited Property and the Easement Area) and shall benefit and bind the
parties, and any successor owner of all or any portion of the real property
described in this Agreement. Subsequent owners of all or any portion of the
Benefited Property shall have the full benefit and right of enjoyment of the
easements and other rights herein granted. The rights, benefits and obligations
of this Agreement shall be transferred and conveyed upon transfer or conveyance
of any portion of real property benefited or burdened by the easements herein
granted without the need of any reference to this Agreement.
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5. NO PUBLIC DEDICATION. Nothing contained in this Agreement shall be deemed to
be a gift or dedication of any portion of any real property described herein to
the general public or for any public use or purpose.
6. CONSTRUCTION, REPAIR AND MAINTENANCE. At its sole cost and expense, Cavaform
shall construct, or shall cause to be constructed, improvements, including
asphalt paving and concrete curbing, within the Easement Area suitable to the
use thereof as the Driveway Easement, and thereafter shall maintain the same, or
cause it to be maintained, in good repair and in a safe, well-lighted, clean and
orderly condition, and shall provide suitable insurance with respect to the
same. Notwithstanding the foregoing, from and after such time as the owner of
the LSI Easement Parcel makes more than an incidental use of the Driveway
Easement, such owner shall be responsible for reimbursing the party performing
the maintenance on, and providing the insurance with respect to, the Driveway
Easement for one-half of the reasonable cost of such maintenance and insurance
applicable to the Driveway Easement for periods of time after the commencement
of more than such an incidental use. Each party shall be solely responsible for
the property taxes and assessments on that portion of the Easement Area owned by
the party.
7. DAMAGE. If any owner of any of the Benefited Property, or such owner's
employees, agents, tenants, subtenants, licensees, mortgagees in possession,
customers or business invitees, cause any damage (such owner is referred to as
the "Applicable Owner") to the Driveway Easement, the Applicable Owner shall
immediately begin the repair of such damage at its sole cost and expense and
diligently complete such repairs as soon as reasonably possible, but in no event
later than 30 days after such property is damaged.
8. FAILURE TO MAINTAIN AND REPAIR. If any person responsible for construction,
repair or maintenance under the provisions of this Agreement fails to perform
its obligations hereunder (the "Defaulting Owner"), then after notice to the
Defaulting Owner by another owner of property affected by this Agreement (the
"Non-Defaulting Owner"), and provided that the Defaulting Owner does not
commence its construction, repair or maintenance obligations within five days
after receiving the notice and diligently complete the performance of such
maintenance and repair obligations as soon as reasonably possible, but in no
event more than 30 days after the delivery of such notice, the Non-Defaulting
Owner shall have the right, but not the obligation, to perform any of the
obligations of the Defaulting Owner. In the event of an emergency, the
Non-Defaulting Owner may immediately perform the obligations of the Defaulting
Owner. All reasonable costs and expenses incurred by the Non-Defaulting Owner in
connection with the Defaulting Owner's failure to perform, together with
interest at the highest lawful rate per annum from the date of the expenditure
of such funds (the "Remediation Costs") shall be due from the Defaulting Owner
to the Non-Defaulting Owner upon receipt of a xxxx therefor. The Remediation
Costs shall be the obligation of the Defaulting Owner, and the Non-Defaulting
Owner shall have a lien against the property owned by the Defaulting Owner and
subject to this Agreement ("Defaulting Owner's Property") to secure the
Remediation Costs. The priority of such lien shall be the date a claim of lien,
stating the amount of Remediation Costs and specifying that the lien is against
the Defaulting Owner's Property, is mailed to the Defaulting Owner and recorded
in the public records of Pinellas County, Florida. Such lien may be foreclosed
in the same manner as a real estate mortgage.
9. INTERPRETATION. In the event any provision of this Agreement is determined to
be invalid, illegal, void or unenforceable, in whole or in part, such
determination shall not be construed to invalidate the remaining provisions of
this Agreement which shall remain in full force and effect. Descriptive headings
of or in sections and any exhibits are inserted for convenience only and are not
a part of this Agreement. Any time period provided for herein which shall end
on, and any date provided for herein which is on, a Saturday, Sunday or legal
holiday in the United States shall extend to 5:00 p.m. of the next business day.
Unless otherwise qualified, references in this Agreement to "Section" or
"section" are to provisions of this Agreement and a reference thereto includes
any subparts, and the use of the terms "party" or "parties" are references to
Cavaform and/or LSI, and their respective successors as contemplated by Sections
2 and 4, as required or permitted by the context. As used herein, the singular
includes the plural, the plural includes the singular and words in one gender
include the others; the terms "herein", "hereof", "hereunder" and similar
references refer to the whole of this Agreement; and "include", "including" and
similar terms are not words of limitation. This Agreement shall not be construed
against any party as the drafter, and may not be waived, amended or modified in
any respect except by further agreement in writing duly executed by all parties
that own the real property that is affected by such waiver, amendment or
modification.
10. GENERAL. This Agreement: (i) shall become effective on the date it is first
recorded in the public records of Pinellas County, Florida; (ii) contains the
entire statement of all arrangements, representations, warranties, promises,
covenants, understandings and agreements, written or oral, between LSI and
Cavaform with respect to its subject matter, and supersedes all previous
arrangements, representations, warranties, promises, covenants, understandings
and agreements, written or oral, relating to its subject matter; and (iii) shall
be governed by, and construed and enforced in accordance with, the internal laws
of the State of Florida without reference to its laws relating to the conflict
of laws; provided, however, to the extent Florida law is preempted by federal
law, federal law shall apply. With respect to the Driveway Easement, each of the
parties shall comply with all applicable laws, rules, regulations and
requirements of public authorities, and shall indemnify, defend and hold
harmless each owner of real property underlying the Easement Area against all
claims, demands, loss, damage, liabilities,
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suits, actions and judgments (including costs and reasonable attorneys' and
paralegals' fees) arising or resulting out of, or related to, the other party's
use (including use by such party's employees, agents, tenants, subtenants,
licensees, mortgagees in possession, customers or business invitees) of the
portion of the Driveway Easement that is upon such owner's real property. In the
event of litigation involving this Agreement, each party irrevocably consents to
the exclusive personal jurisdiction over that party of the courts (both federal
and state) located within the territorial limits of the United States District
Court for the Middle District of Florida, Tampa Division, in the State of
Florida and to venue therein for all purposes, and the prevailing party shall be
entitled to recover as part of the judgment its costs of suit, including
reasonable attorneys' and paralegals' fees, at trial and on appeal. The defense
to an action for the specific enforcement of this Agreement that the remedy of
damages alone may be adequate is waived by each of the parties.
11. NOTICE. Any notice given to any party under this Agreement shall be valid
only if in writing and shall be deemed to be duly given only if delivered
personally or sent by courier service, by overnight delivery service, or by
registered or certified mail, postage prepaid, addressed to the respective
addresses of the parties set forth under their signatures below. Either party
may by notice to the other change its address for notice. Notice shall be
effectively given upon the earlier of actual receipt or three days after
forwarding. In the event notice is mailed as provided in this section and is
returned to the sender for any reason, that notice shall be deemed to have been
received by the party to whom it was addressed on the date the notice was
initially placed in the U. S. Postal Service by the sender.
IN WITNESS WHEREOF, LSI and Cavaform have caused this Driveway Easement
Agreement to be executed, acknowledged and delivered in their respective names
by duly authorized officers on the date first written above.
LIFE SCIENCES, INC.
WITNESSES:
/s/ Xxxxxx Xxxxxxxxx By: /s/ Xxxx X. Xxxxx
--------------------------------- -----------------------------------------------
(Authorized Officer)
Xxxxxx Xxxxxxxxx Xxxx X. Xxxxx
--------------------------------- ---------------------------------------------------
NAME LEGIBLY PRINTED, TYPEWRITTEN OR STAMPED
NAME LEGIBLY PRINTED, (Address of Such Person and of Life Sciences, Inc.)
TYPEWRITTEN OR STAMPED 0000 - 00XX XXXXXX XXXXX
XX. XXXXXXXXXX, XXXXXXX 00000
/s/ Xxxxxx X. Xxxxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxxxx
---------------------------------
NAME LEGIBLY PRINTED, TYPEWRITTEN
OR STAMPED
CAVAFORM, INC.
/s/ Xxxxxx Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
--------------------------------- -----------------------------------------------
(Authorized Officer)
/s/ Xxxxxx Xxxxxxxxx Sect./Tr. X. X. Xxxxxx
--------------------------------- ---------------------------------------------------
NAME LEGIBLY PRINTED, NAME LEGIBLY PRINTED, TYPEWRITTEN OR STAMPED
TYPEWRITTEN OR STAMPED (Address of Such Person and of Cavaform, Inc.)
0000 - 00XX XXXXXX XXXXX
/s/ Xxxxxx X. Xxxxxxxxxx XX. XXXXXXXXXX, XXXXXXX 00000
---------------------------------
Xxxxxx X. Xxxxxxxxxx
---------------------------------
NAME LEGIBLY PRINTED, TYPEWRITTEN
OR STAMPED
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STATE OF FLORIDA )
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me this 27th day of May
1999, by Xxxx X. Xxxxx, the Vice President of LIFE SCIENCES, INC., a Delaware
corporation, on behalf of the corporation. He is personally known to me, or he
has produced (insert type of identification produced) Driver's License as
identification.
/s/ Xxxxx X. O'Dell
--------------------------------------------
SIGNATURE
(SEAL)
Xxxxx X. O'Dell
--------------------------------------------
NAME LEGIBLY PRINTED, TYPEWRITTEN OR STAMPED
My Commission Expires:
STATE OF FLORIDA )
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me this 27th day of May
1999, by Xxxxxx X. Xxxxxx, the Sect./Tr. of CAVAFORM, INC., a Florida
corporation, on behalf of the corporation. He is personally known to me, or he
has produced (insert type of identification produced) Driver's License as
identification.
/s/ Xxxxx X. O'Dell
--------------------------------------------
(SEAL)
Xxxxx X. O'Dell
--------------------------------------------
NAME LEGIBLY PRINTED, TYPEWRITTEN OR STAMPED
My Commission Expires:
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