HomeMy WebLinkAboutAgreement to Dedicate Roadway (Recorded by County) 9-16-16 CFM 2016183599,OR BK 7712 PAGE 1198,
Recorded 09119/2016 at 11:01 AM,Scott Ellis,Clerk of Courts,
Brevard County
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AGREEMENT TO DEDICATE ROADWAY
THIS AGREEMENT TO DEDICATE ROADWAY ("Agreement") is made and entered
into as of the I(n day of SLp-4 Q n rJatr 2016 by and between PUERTO DEL RIO
CONDOMINIUM ASSOCIATION, INC., a Florida non-profit corporation (hereinafter
referred to as the "Association") and the CITY OF CAPE CANAVERAL, a political
subdivision of the State of Florida(hereinafter referred to as the "City").
RECITALS:
A. The Association manages all of the common elements of a certain residential
condominium complex located within the City's municipal boundaries. The common elements
managed by the Association include, but are not limited to, a certain portion of a roadway
commonly known as "Puerto Del Rio Drive", which portion of Puerto Del Rio Drive is more
particularly described and depicted in Exhibit "A" attached hereto and made a part hereof by
reference(hereinafter referred to as the "Roadway");
B. The Roadway runs adjacent to a riverfront park owned by the City commonly
known as "Banana River Park" (hereinafter referred to as the "Park"), which Park is used by
members of the Association and members of the public generally;
C. The City desires to use the Roadway to provide certain public utilities to support
the recreational uses of the Park, which utilities include, but are not limited to, lighting for the
Park. And, the City desires that a public purpose be advanced in allowing the general public
ingress to and egress from the Park via the Roadway;
D. The Association (i) acknowledges that both the general public and the
Association's members would benefit from the City bringing certain utilities into the Park, (ii)no
longer desires to perform any maintenance or incur any liability with respect to the Roadway,
and(iii)has the right and authority, through its Board of Directors acting by, for and on behalf of
the members of the Association, to dedicate certain common elements including the Roadway to
the City pursuant to this negotiated agreement as provided for in section 718.111 (7) and section
718.111(10), Florida Statutes; and
E. The Association desires to dedicate and the City desires to accept the dedication
of the Roadway on the terms and conditions as provided herein.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the parties hereto agree as follows:
1. Recitals. The recitals set forth hereinabove are true and correct in all respects and
are incorporated herein by reference as if set forth herein verbatim.
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2. Obligation to Convey Roadway. Association hereby covenants and agrees to
convey the Roadway in the substantially same condition as it existed as of the effective date of
this Agreement to the City on the Closing Date (as defined hereinbelow) for use by the City and
the general public, including, without limitation, the Association and its members, on the terms
and conditions as provided herein.
3. Future Maintenance of Roadway & Limited Indemnification. The City hereby
covenants and agrees, from the Closing Date forward, to take full responsibility for keeping and
maintaining the Roadway as a public street in accordance with the City's customary and ordinary
standards for maintaining City public streets located with the City of Cape Canaveral and any
such standards required by law. From the Closing Date forward, the Association will no longer
be responsible for keeping and maintaining the Roadway. This Agreement shall not be
construed or interpreted in any way as imposing any obligation on the City to keep and maintain
the Roadway in any condition beyond the City's customary and ordinary standards and the
requirements of applicable law. The City hereby further covenants and agrees to indemnify,
defend, and hold harmless the Association, its successors and assigns, or any of them, from any
and all claims, damages, costs, fees, expenses or other liabilities of any kind and at any level
arising out of, related to, or resulting from the City's ownership or maintenance or failure of
maintenance of the Roadway after the Closing Date. However,this limited indemnification shall
not be construed or interpreted in any way to include claims, damages, costs, fees, expenses or
other liabilities of any kind and at any level arising out of, related to, or resulting from the
Association's negligent or unlawful acts or omissions, or the Association's ownership or
maintenance or failure of maintenance of the Roadway prior to the Closing Date. The
Association hereby covenants and agrees to indemnify, defend, and hold harmless the City and
its officials and employees, or any of them, from any and all claims, damages, costs, fees,
expenses or other liabilities of any kind and at any level which were brought or could have been
brought against the Association arising out of the Association's ownership or maintenance or
failure of maintenance of the Roadway prior to the Closing Date. Neither party and its officers,
employees or agents shall be deemed to assume any liability for the acts, omissions or negligence
of any of the parties and their respective officers, employee or agents, except as provided by this
Agreement. The maintenance and indemnification obligations contained in this paragraph shall
survive and continue beyond the Closing Date.
4. Closing.
(a) Closing Date. The closing of the conveyance of the Roadway from the
Association to the City shall occur within 90 days of execution of this Agreement by the
City and the Association (herein referred to as the "Closing Date"). The closing shall
take place at a time and location mutually agreed upon by the Association and the City.
(b) Closing Documents. At the closing, the Association shall deliver to the City a
duly executed and acknowledged Special Warranty Deed conveying to the City fee
simple title owned by the Association in and to the Roadway (hereinafter referred to as
the "Deed"). The Deed will convey fee simple title to the Roadway to the City free and
clear of all liens and encumbrances except for matters appearing of record and taxes
which are not yet due and payable for 2016 (the "Permitted Exceptions"), reserving the
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right of ingress and egress on and over the Roadway for the general public including,
without limitation, the Association and its members. At the closing, the Association and
the City shall also execute and deliver a settlement statement for the closing, as well as
such other documents as may be reasonably required by the parties.
(c) Title Commitment. The Association has agreed to provide an owner's title policy
insuring the Roadway in the name of the City. Within ten(10) days after this Agreement
is approved and accepted by the City and the same is communicated to the Association,
the law firm of Dean Mead, as issuing agent for Chicago Title Insurance Company,
Fidelity National Title Insurance Company or other national title insurance company,
shall provide to the City a commitment for an owner's title policy wherein the title
insurer agrees to issue to the City,upon recording the deed conveying the Roadway, a fee
owner's policy of title insurance insuring the Roadway in an amount not less than TEN
THOUSAND AND NO/100 DOLLARS ($10,000.00). Concurrently with delivering the
title commitment, the issuing agent shall deliver to the City a copy of each of the
documents referred to in schedule B-section 2 of the title commitment.
Within ten (10) days after the City's receipt of any such title commitment, the City shall
(a) examine such commitment and (b) notify the Association, in writing, of any matters
shown in the title commitment affecting title to the Roadway (other than the Permitted
Exceptions and standard exceptions) which render the title unmarketable or will
otherwise materially adversely affect the City's purpose or use for the Roadway as that
purpose or use has been indicated within this Agreement. The Association shall then
have the right but not the obligation a period of thirty (30) days from the date of receipt
of said notice from the City within which to attempt to cure the City's objections. If the
Association is unsuccessful in curing or chooses not to cure the City's objections within
that time period, the City shall either (a) accept title to the Roadway as title then exists
without making or attempting to make any claim of offset or damages, or (b) terminate
this Agreement. In the event of termination, both parties shall be released from any and
all further obligations under this Agreement. Notwithstanding anything set forth herein
to the contrary, any matters appearing on any survey acquired or any items referred to in
schedule B-section 2 of the title commitment which are not objected to in writing within
the time period provided hereinabove shall be deemed to constitute a Permitted
Exception.
(d) Payments and Costs. No consideration shall be due or payable by the City to the
Association for the Roadway. The Association shall pay for the title insurance premium,
Florida documentary stamp taxes due with respect to the Deed, and the fees and costs for
recording any lien releases or satisfying any liens or encumbrances on the Roadway. The
City shall pay the cost of recording the Deed. Each party shall pay its own attorneys'
fees. Real property ad valorem taxes and assessments applicable to the Roadway, if any,
shall be prorated as of the Closing Date, based on the current year's tax with due
allowance made for the maximum allowable discount and applicable exemptions, if any,
allowed for said year. If closing occurs at a date when the current year's millage is not
fixed, and the current year's assessment is available, taxes will be prorated based upon
such assessment and the prior year's millage. If the current year's assessment is not
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available,then taxes will be prorated based on the prior year's tax. If the subsequent tax
bill is substantially more or less than the estimated tax upon which the proration at
closing was based, such proration shall be readjusted upon the request of either party, and
a statement to this effect shall be included in the closing statement. Any tax proration
based on an estimate shall be subsequently readjusted upon receipt of the actual tax bill,
and a statement to this effect shall be included in the closing statement. If additional
monies are due from the Association, such monies shall be promptly paid by the
Association to the tax collector. If the Roadway, upon conveyance to the City, will be
exempt from ad valorem taxation, then the prorated taxes shall be placed in escrow with
the county tax collector or otherwise deposited in a manner consistent with applicable
law.
(e) Delivery of Possession. At closing, the Association shall deliver possession of the
Roadway to the City by delivering the Deed.
5. Default. If the Association breaches any term, condition, covenant or obligation
in this Agreement, and it does not cure such breach within ten (10) days after written notice of
the breach from City, then the Association will be in default under this Agreement and the City
may, at its option and as its sole and exclusive remedy, enforce specific performance of this
Agreement; provided, however, if specific performance is not for any reason available as an
enforceable remedy, the City may pursue damages or any other remedy at law or in equity. The
City shall also be entitled to recover from the Association its reasonable attorneys' fees and court
costs, at or before the trial level and in any appellate proceeding, incurred in connection with any
suit for specific performance or other remedy occasioned by a default by the Association of its
obligations hereunder.
If the City breaches any term, condition or obligation in this Agreement, and it does not
cure such breach within ten (10) days after written notice of the breach from the Association,
then the City will be in default under this Agreement, and the Association may, at its option,
and as its sole and exclusive remedy, enforce specific performance of this Agreement;provided,
however, if specific performance is not available for any reason as an enforceable remedy, the
Association may pursue damages or any other remedy at law or in equity. The Association
shall also be entitled to recover from the City its reasonable attorneys' and paralegals' fees and
court costs, at or before the trial level and in any appellate proceedings, incurred in connection
with any suit for specific performance or other remedy occasioned by a default by the City of its
obligations hereunder.
6. Miscellaneous. This Agreement or any provision hereof may be amended or
waived only by written agreement signed by both parties. This writing constitutes the entire
agreement between the parties and supersedes and merges all prior oral or written agreements,
representations, statements, proposals and undertakings between the parties regarding the subject
matter hereof. Nothing contained herein shall be construed to imply a partnership,joint venture,
principal and agent or employer and employee relationship between the parties. No provision in
this Agreement shall provide to any person not a party to this Agreement any remedy, claim or
cause of action, or create any third-party beneficiary rights against either party. In the event that
any one or more of the provisions in this Agreement shall for any reason be held to have no force
and effect, this Agreement shall, if possible, be interpreted in a manner so as to effectuate the
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intention of the parties. Provisions contained in this Agreement that, by their sense and context,
are intended to survive the suspension or termination of this Agreement, shall so survive. This
Agreement is the subject of negotiation between the parties and should not be interpreted more
favorably toward one party over the other. The terms and provisions of this Agreement shall
bind, and inure to the benefit of, the parties hereto and their respective successors and assigns;
provided, however, neither party may assign this Agreement without the prior written consent
and approval of the other party. In connection with any litigation, including appellate
proceedings, arising out of or under this Agreement, the prevailing party in such litigation shall
be entitled to recover such party's out-of-pocket costs and reasonable attorneys' fees. This
Agreement and the interpretation and enforcement thereof shall be governed by and construed in
accordance with the laws of the State of Florida. The venue of any litigation arising out of this
Agreement shall be Brevard County, Florida.
7. Sovereign Immunity. Notwithstanding any other provision of this Agreement, the
City intends to avail itself of the benefits of Section 768.28 and of other statutes and common
law governing sovereign immunity to the fullest extent possible. However, in no event will the
City's liability under this Agreement exceed the sum of$200,000 per person or $300,000 per
occurrence. Nothing in this Agreement is intended to inure to the benefit of any third party for
the purpose of allowing any claim which would otherwise be barred under the doctrine of
sovereign immunity or by operation of law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and effective as of the day and year first above written.
PUERTO DEL RIO CONDOMINIUM
/ ASSOCIATION INC., a Florida non-profit
corporation
I
P ' tName: ' /'. „ . j .! /V� qr, ,: ..../..... .,),/ �
Name. . r / 5. , i„
Tli.�t��o' � TitlArg:rii % i� � --'-A( ��''
Print Name: 'P t 1ROM-
STATE OF FLORIDA
COUNTY OF BREVARD
Q The foregoing instrument was acknowledged before me this ILO day of SE2016,
J AND(ZA C-(01R X . Said person(check one)o is personally known to me,vt.produced a
driver's license(issued by a state of the United States within the last five(5)years)as identification, or❑
produced other identification,to wit:
,.....„-„.......___c ...t.„ .... .......4,4....„....,
Print Name: Mo%I —Thee rvAGA
Notary Public, State of Florida
+7:';',., MOLLY ABAIGAIL THOMAS Commission No.: ( ($`�'-i
,, Commission# FF 118375
• My Commission Expires: 4-3 O - 14
;,4 da My Commission Expires
%'a+°: April 30, 2018
5
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CITY OF CAPE CANAVERAL, a political
subdivision of the State of Florida
Orr` k • "�
Print Name: A. v c\ 1rc By: (/Q Y- J"11'L+CIiN,t�
Name: David L. Greene
Title: City Manager
Print Name: .JAWIft Z€f t.f -
STATE OF FLORIDA
COUNTY OF BREVARDM
The foregoing instrument was acknowledged before me this /J— day of
, 2016,by . r��cl G c , as C i l4vo of the CITY
OF CAPE CANAVERAL, a political subdivision of the State of Flonda, on behalf of said City.
Said person (check one) 1> s personally known to me, ❑ produced a driver's license (issued by a
state of the United States within the 1 st five (5) years) as identification, or o produced other
identification, to wit:
.t
Print N e: i C-EFr94/7/
Notary Public, State of Florida
•"." MIA GOFORTH .6
.���_�Na., � Commission No.:
Notary Public-State of Florida
'• !1�: • My Comm.Expire:;May 16,2017 My Commission Expires: /122y/6/2a7
— iiI
=;� �.i . Commission #EE 866939
':i"` Bonded Through National Notary Assn.
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Exhibit"A"
Legal Description and Depiction
A strip of land being 50.00 feet in width lying to the right of, as measured by right angles to and
parallel with the following described line being a portion of:
Section 15,Township 24 South, Range 37 East, Brevard County, Florida and being more
particularly described as follows:
Begin at the intersection of the East line of the plat of Angel's Isle as recorded in Plat Book 36, at
Page 77,of the Public Records of Brevard County, Florida, and the North line of Central
Boulevard, a 100.00 foot right of way, as described in Official Records Book 3057, at Page 445, of
the Public Records of Brevard County, Florida; thence North 00 degrees 50 minutes 54 seconds
West along the East line of said plat, 100.03 feet to the Northeast corner of said plat; thence North
89 degrees 24 minutes 45 seconds West, along the North line of said plat, 204.31 feet to the West
line of the East 3323.00 feet of said Section 15; thence North 00 degrees 50 minutes 54 seconds
West, along said West line, 899.87 feet to the point of termination of said 50.00 foot strip of land.
Said 50.00 foot strip of land being bound on the South by the North line of said Central Boulevard
and on the North by the North line of the South 2685.38 feet of said Section 15.
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