HomeMy WebLinkAboutLandscape, Drainage and Utility Easement Agreement - City Signed 11-29-18 This instrument prepared by:
Laura Minton Young,Esq.
Dean Mead
7380 Murrell Road, Ste.200
Viera,Florida 32940
LANDSCAPE,DRAINAGE AND UTILITY EASEMENT AGREEMENT
THIS LANDSCAPE,DRAINAGE AND UTILITY EASEMENT AGREEMENT(this"Easement")
is made as of the day of ,2018(the"Effective Date")by and between the
CITY OF CAPE CANAVERAL,a Florida municipal corporation("Grantor"),and PUERTO DEL RIO
CONDOMINIUM ASSOCIATION,INC.,a Florida not-for-profit corporation ("Grantee").
RECITALS
WHEREAS,Grantor is the owner of that certain real property located in Brevard County,Florida,and
more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference (the
"Property"and "Easement Area"); and
WHEREAS,Grantor desires to grant to Grantee an easement over the Property for landscape,drainage
and utility purposes that do not conflict with the City's right-of-way, as more particularly set forth below.
AGREEMENT
NOW THEREFORE, in consideration of Ten and 00/100 Dollars ($10.00) and other good and
valuable consideration,the sufficiency and receipt of which are hereby acknowledged by the parties,Grantor
and Grantee hereby agree as follows: •
1. Recitals: The above recitals are true and correct and incorporated into this Easement by this
reference.
2. Grant of Easement: Grantor hereby grants a perpetual,non-exclusive easement over,under,
and across the Easement Area to Grantee for landscape, drainage, and utility purposes. The foregoing
perpetual,non-exclusive easement over and across the Easement Area shall include a perpetual,non-exclusive
easement for ingress and egress over,upon and across the Easement Area so as to provide access to and from
the Easement Area for the full use and benefit thereof. The easement rights referenced hereinabove shall
specifically include the rights in favor of Grantee to (i) plant, mow, cultivate, relocate, irrigate, maintain,
replace, and care for all existing landscaping and'associated features within the Easement Area, and (ii)
construct,maintain,replace,improve,relocate and repair existing underground utilities(together with ground-
mounted electrical transformers;ground-mounted appurtenances to underground utilities such as valve boxes,
CATV junction boxes and other similar low-profile installations) and existing underground drainage
improvements within the Easement Area;provided,however,that such plantings and installations within the
Easement Area shall not unreasonably affect Grantor's ability to maintain the Easement Area for public right-
of-way and utility purposes or the visibility of Grantor's improvements hereafter located on the Property. If
Grantee desires to install any new landscaping and associated features, underground utilities or drainage
facilities within the Easement Area after the effective date of this Easement, such installation shall be in
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accordance with plans and specifications approved and permitted by the Grantor in advance and in writing by
Grantor, which approval shall not be unreasonably withheld, conditioned or delayed unless the proposed
installation unreasonably affects Grantor's ability to maintain the Easement Area for public right-of-way and
. utility purposes.
The easements with respect to the Easement Area are non-exclusive, and Grantor and its
assigns and successors-in-interest and/or title,shall have the non-exclusive right to(i)use,pass and repass over -
and upon the Easement Area, to install, maintain, repair, replace, remove and/or relocate utilities in, over,
under,upon and/or across the Easement Area or any part thereof;provided,however,that any utilities installed,
repaired, replaced and/or relocated in, over, under,upon or across the Easement Area shall be so installed,
repaired,replaced and/or relocated so not to unreasonably affect Grantee's existing landscape, drainage and
utilities.
Each party shall use the rights granted and reserved by this Easement with respect to the
Easement Area with due regard for the rights of the other party to use and enjoy the Easement Area.
Moreover,Grantee hereby agrees to use the easement rights granted herein so as not to unreasonably interfere
with the conduct of Grantor's activities on and about the Property. Further, Grantor shall not (i) destroy,
damage or remove any landscaping, trees, grass, plants or plant materials which may be placed by Grantee
within the Easement Area,or(ii)unreasonably obstruct,impede or interfere with the rights of Grantee as to the
Easement Area and Grantee's rights of ingress and egress thereto.
3. Maintenance and Insurance: During the term of this Easement,Grantee shall be responsible,
at its sole expense, for maintaining, repairing, and replacing (the foregoing being referred to herein as
"maintenance-related activities")any and all existing or future improvements installed by Grantee within the
Easement Area. To the extent Grantee fails to perform such above-referenced maintenance-related activities
and fails to commence such activities within fourteen(14)days following Grantor's written notice thereof to
Grantee,Grantor shall have the right,but not the obligation,to perform such unperformed maintenance-related
activities at Grantee's expense and receive a reimbursement of such expense(as evidenced by payment receipts
for such expenses) within thirty (30) days after making a written request to Grantee for reimbursement.
Notwithstanding the foregoing,in the event of an emergency situation,Grantor shall have the right to perform
emergency maintenance-related activities within the Easement Area if such maintenance-related activities are
. not commenced by Grantee within twenty-four (24) hours following Grantor's written notice thereof to
Grantee, and Grantor shall be entitled to a reimbursement of its reasonable expenses incurred in connection
therewith(as evidenced by payment receipts for such expenses)within thirty(30)days after making a written
request to Grantee for reimbursement. Any amounts due to Grantor pursuant to this Easement which are not
paid when due shall accrue interest at the maximum allowable rate under Florida law from the date due until
paid in full by Grantee.
Prior to Grantee's entry upon the Easement Area pursuant to the terms of this Easement,
Grantee shall obtain, or shall cause its general contractor to obtain, general liability insurance to afford
protection against any and all claims for bodily injury,death or property damage arising directly or indirectly
out of Grantee's use of the Easement Area,and deliver a Certificate of Insurance for such insurance coverage
to Grantor. Such insurance policies shall(i)be provided by an insurance:company duly authorized to provided
insurance coverage in the State of Florida and having an A.M. Best rating of at least B+, (ii) be in an
occurrence limit of not less than$1,000,000.00 and in the aggregate of not less than$2,000,000.00,and(iii)
provide for Grantor to be named as an additional insured party. Grantee shall deliver an up-to-date Certificate
of Insurance for such insurance coverage to Grantor upon Grantor's request.
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4. Damage: In the event that Grantee or its respective officers, directors, employees, agents,
consultants, materialmen, contractors or subcontractors(and their subcontractors, employees, materialmen)
cause damage to the Easement Area or any of the improvements located within the Easement Area,or cause
damage to the Property or any improvements located thereon, Grantee, at Grantee's sole cost and expense,
agrees to commence and diligently pursue the restoration of the same and the improvements and/or Property so
damaged to the original condition and grade, including, without limitation, repair and replacement of any
landscaping,hardscaping, plantings, ground cover, roadways, driveways, sidewalks, parking areas, fences,
walks,utility lines and other structures or improvements,within thirty(30)days after receiving written notice
of the occurrence of any such damage. If Grantee fails to repair or restore such damage within the such cure
period, Grantor shall have the right, but not the obligation, to repair or restore such damage at Grantee's
expense and receive a reimbursement of its reasonable expenses incurred in connection therewith(as evidenced
by payment receipts for such expenses)within thirty(30)days after making a written request to Grantee for
reimbursement.
5. Compliance with Applicable Laws: In connection with Grantee's use of the Easement Area,
Grantee shall comply with all applicable laws,ordinances,rules,regulations,permits and approvals relating to
such use ("Laws"). If Grantee is deemed to be in violation of any Laws by an applicable governmental
authority, it shall provide written notice thereof to Grantor. If Grantee is deemed to be in violation of any
Laws. Grantee shall cure such violation within thirty(30) days after the imposition of such violation by the
applicable governmental authority(or,if such violation cannot be reasonably cured within such 30-day period,
then such violation must be cured within a commercially reasonable period after the imposition of such
violation by the applicable governmental authority), unless such violation is required to be cured within a
shorter timeframe by the applicable government authority imposing the violation,in which case, such shorter
cure period shall apply(such applicable cure period being referred to herein as the"Cure Period"). If Grantee
fails to cure any violation of Laws within the applicable Cure Period,Grantor shall have the right,but not the
obligation,to cure such violation at Grantee's expense and receive a reimbursement of its reasonable expenses
incurred in connection therewith(as evidenced by payment receipts for such expenses)within thirty(30)days
after making a written request to Grantee for reimbursement.
6. Indemnity: Grantee shall hold harmless,defend,and indemnify Grantor from and against any
and all actions, causes of action, claims, demands, liabilities, judgments, costs, expenses whatsoever
(including,without limitation attorneys' fees at trial and appellate levels)arising directly or indirectly from,
due to, or caused by the activities of Grantee or Grantee's respective officers, directors, employees, agents,
consultants, materialmen, contractors or subcontractors (and their subcontractors, employees,materialmen)
within or upon the Easement Area, except to the extent caused directly or indirectly by the negligence or
willful act of Grantor or Grantor's corporate affiliates or their respective officers,directors,employees,agents
or contractors. Subject to Grantor's right to sovereign immunity under Section 768.28,Florida Statutes,,and
other limitations imposed on the Grantor's potential liability pursuant to law, Grantor shall hold harmless,
defend, and indemnify Grantee from and against any and all actions, causes of action, claims, demands,
liabilities,judgments, costs, expenses whatsoever (including, without limitation attorneys' fees at trial and •
appellate levels)arising directly or indirectly from,due to,or caused by the activities of Grantor or Grantor's
respective officers,directors,employees,agents,consultants,materialmen,contractors or subcontractors(and
their subcontractors,employees,materialmen)within or upon the Easement Area,except to the extent caused
directly or indirectly by the negligence or willful act of Grantee or Grantee's corporate affiliates or their
respective officers,directors,employees;agents or contractors. Nothing contained herein shall be construed as
a waiver of Grantor's right to sovereign immunity under section 768.28,Florida Statutes.
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7. No Liens: Grantee shall not allow any liens to be filed against the Easement Area or Property
which arise out of the exercise of Grantee's rights hereunder. If any lien is filed against the Easement Area or
Property, Grantee shall immediately satisfy the lien at its sole cost and expense or transfer the lien to other
security in accordance with applicable law. In no event shall Grantor be responsible for satisfying any lien
which maybe filed against Easement Area or Property by virtue of the exercise of Grantee's rights hereunder.
Grantee shall notify every contractor,subcontractor and materialman performing any work and supplying any
materials to or within the Easement Area that the rights granted to Grantee pursuant to this Easement shall not
be subject to liens for improvements to or other work performed by or on behalf of Grantee
8. Notices: Any notice, request, demand, instruction or other communication (hereinafter
referred to as a "Notice")to be given to any party with respect to this Easement may be given either by the
party or its legal counsel and shall be deemed to have been properly sent and given when delivered by hand or
when sent by certified mail,return receipt requested,by reputable courier service,or by email. If delivered by
hand,a Notice shall be deemed to have been sent,given and received when actually received by the addressee.
If sent by certified mail,a Notice shall be deemed to have been sent and given when properly deposited with
the United States Postal Service with the proper address and postage paid therewith, and shall be deemed to
have been received on the third(3rd)business day following the date of such deposit,whether or not actually
received by addressee. If sent by courier service,a Notice shall be deemed to have been sent and given when
delivered to said courier service with the proper address and delivery charges either prepaid or charged to a
proper account,and shall be deemed to have been received when actually received by the addressee. If sent by
email, a Notice shall be deemed to have been sent, given and received on the date delivered by email,with a
copy sent by overnight delivery, as evidenced by written receipt therefore or email confirmation of delivery
whether or not actually received or opened by the person to whom addressed. Any party may change the
address to which notices are to be sent to such party by sending a Notice to each other party specifying such
change of address. The addresses to which Notices shall be sent are:
To Grantor: City of Cape Canaveral
Attn: City Manager
100 Polk Avenue
Cape Canaveral,. Florida 32920
Email Address: d.greene@cityofcapecanaveral.org
With a copy to: Garganese,Weiss,D'Agresta & Salzman,P.A.
Attn: Anthony Garganese, Esq.
111 N. Orange Avenue, Suite 2000
P.O. Box 2873
Orlando,Florida 32802-2873
Email Address: agarganese@orlandolaw.net
To Grantee: Puerto Del Rio Condominium Association, Inc.
8934 Puerto Del Rio Drive
Cape Canaveral,Florida 32920
Attn: Sandra Gordon,President
Email Address: sspdr@att.net
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With a copy to: Dean,Mead
7380 Murrell Road, Suite 200
Viera,Florida 32940
Attn: Laura Minton Young, Esq.
Email Address: LYoung@deanmead.com
If any party hereto is represented by legal counsel, such legal counsel is authorized to deliver any Notice
directly to the other party on behalf of his or her client,and the same shall be deemed proper notice hereunder
. if delivered in the manner specified above. If any party designates more than one recipient for Notices, and,
pursuant this Easement, a Notice is received or deemed to have been received by different recipients at
different times, then the Notice shall be deemed to have been given on the earliest date that any required
recipient received such Notice.
9. Covenants Running with the Land: The terms of this Easement are covenants running with
the land and shall be binding upon the successors in interest and assigns of Grantor and Grantee.
10. Governing Law: The provisions of this Easement shall be governed by Florida law. The
parties agree that venue shall be exclusively in Brevard County,Florida,for all State Court Actions or disputes
which arise out of or based upon this Easement, and in Orlando, Florida for all Federal Court actions or
disputes which arise out of or are based upon this Easement. In the event of a dispute between Grantor and
Grantee relating to this Easement, each party shall bear their own attorney's fees and costs..
11. Miscellaneous: This Easement contains the entire understanding of the parties with respect to
the matters set forth herein and no other agreement, oral or written, not set forth herein, nor any course of
dealings of the parties, shall be deemed to alter or affect the terms and conditions set forth herein. If any
provision of this Easement,or portion thereof,or the application thereof to any person or circumstances,shall,
to the extent be held invalid,inoperative or unenforceable,the remainder of this Easement,or the application
of such provision or portion thereof to any other persons or circumstances, shall not be affected thereby, and
each provision of this Easement shall be valid and enforceable to the fullest extent permitted.by law. The
section headings in this Easement are for convenience only,shall in no way define or limit the scope or content
of this Easement,and shall not be considered in any construction or interpretation of this Easement or any part
hereof. Where the sense of this Easement requires,any reference to a term in the singular shall be deemed to
include the plural of said term,and any reference to a term in the plural shall be deemed to include the singular
of said term. Time is of the essence of this Easement.
12. Counterparts: This Easement may be executed by Grantor and Grantee in counterparts.
[SIGNATURES OF GRANTOR AND GRANTEE ARE ON THE FOLLOWING PAGES]
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V0408125.v2
IN WITNESS WHEREOF,the Grantor has caused this instrument to be executed in its name,
and its corporate seal to be hereto affixed,by its proper officer thereunto duly authorized on the day and year
first above written.
.t GRANTOR:
. ' CITY OF CAPE CANAVERAL, a Florida
R municipal co go oration
ATTEST: -.. v, ; 3 >,.
By: / By /
Damel`LeFever, Deputy G ty Clerk Bob Hoog, Mayor
(CITY SEAL)
STATE OF FLORIDA
COUNTY OF BREVARD
The foregoing instrument was acknowledged before me this day of /IJ/ ,,,,j)
2018,by Bob Hoog, Mayor of the CITY OF CAPE CANAVERAL, a Florida municipal
corporation, on behalf of said City. Said person (check one) s personally known to me, ❑
produced a driver's license (issued by a state of the United States within the last five (5) years) as
identification, or Li produced other ide - to wit:
ce_ _ Y'
Pun MaPOMO o 0,,,., Print ame: �A
Rpz'1Faaqu,eVieS -��V N ry Public, State of Florida
Meg 09#NOISSIMOO ommission No. a- 6" e2 C-9,3
Ssoa 3 � '' My Commission Expires: 9//7/ 2-O 2-2
[SIGNATURE OF GRANTEE IS ON THE FOLLOWING PAGE]
Page 6 of 8
V0408125.v2
Signed, sealed and delivered GRANTEE:
in the presence of:
PUERTO DEL RIO CONDOMINIUM
ASSOCIATION, INC., a Florida non-profit
corporation.
Print Name: By:
Name:
Title:
i
Print Name:
STATE OF FLORIDA
COUNTY OF BREVARD
The foregoing instrument was acknowledged before me this day of
2018, , as of PUERTO DEL RIO
CONDOMINIUM ASSOCIATION, INC., a Florida non-profit corporation, on behalf of said
corporation. Said person (check one) ❑ is personally known to me, ❑ 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:
Print Name:
Notary Public, State of Florida
Commission No.:
My Commission Expires:
•
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Exhibit"A"
Description of the Property and Easement Area
A STRIP OF LAND 50.00 FEET IN WIDTH AND BEING A PORTION OF THE LANDS AS
DESCRIBED IN OFFICIAL RECORDS BOOK 5768, PAGES 6717 THROUGH 6743 OF THE
PUBLIC RECORDS OF BREVARD COUNTY, FLORIDA, LYING IN SECTION 15,
TOWNSHIP 24 SOUTH, RANGE 37 EAST, BREVARD COUNTY, FLORIDA AND BEING
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGIN AT THE-NORTHEAST CORNER OF LOT 1, ANGEL'S ISLE AS RECORDED IN
PLAT BOOK 36, PAGE 77 OF THE PUBLIC RECORDS OF BREVARD COUNTY,
FLORIDA; THENCE N89°27'20"W ALONG THE NORTH LINE SAID ANGEL'S ISLE, A
DISTANCE OF 204.31 FEET TO A POINT ON THE WEST LINE OF THE EAST 3323.00
FEET OF SAID SECTION 15; THENCE N00°53'39"W ALONG THE SAID WEST LINE, A
DISTANCE OF 899.89 FEET; THENCE DEPARTING SAID WEST LINE N89°06'21"E, A
DISTANCE OF 50.00 FEET; THENCE S00°53'39"E PARALLEL WITH AND 50.00 FEET
EAST OF THE SAID WEST LINE, A DISTANCE OF 851.13 FEET TO A POINT 50.00 FEET,
BY PERPENDICULAR MEASURE,NORTH OF THE NORTH LINE OF SAID ANGEL'S
ISLE; THENCE S89°27'20"E PARALLEL WITH AND 50.00 FEET NORTH OF THE NORTH
LINE OF SAID ANGEL'S ISLE, A DISTANCE OF 204.35 FEET, TO A POINT 50.00 FEET,
BY PERPENDICULAR MEASURE, EAST OF THE EAST LINE OF SAID ANGEL'S ISLE;
THENCE S00°50'54"E PARALLEL WITH AND'50.00 FEET EAST OF THE SAID EAST
LINE, A DISTANCE OF 124.76 FEET TO THE NORTH RIGHT OF WAY LINE OF
CENTRAL BOULEVARD, A 100 FOOT WIDE RIGHT OF WAY AS DESCRIBED IN
OFFICIAL RECORDS BOOK 3057, PAGE 445; THENCE N89°27'20"W ALONG THE SAID
NORTH RIGHT OF WAY LINE, A DISTANCE OF 30.35 FEET TO A POINT ON THE
NORTHEASTERLY LINE OF THE LANDS AS DESCRIBED IN OFFICIAL RECORDS
BOOK 782, PAGES 146 THROUGH 150; THENCE N32°11'45"W ALONG THE SAID
NORTHEASTERLY LINE, A DISTANCE OF 14.88 FEET TO THE NORTHEASTERLY
CORNER OF SAID LANDS; THENCE S57°48'22"W, ALONG THE NORTHERLY LINE OF
SAID LANDS, A DISTANCE OF 13.96 FEET TO THE EAST LINE OF SAID LOT 1 OF
ANGEL'S ISLE; THENCE N00°50'54"W ALONG THE EAST LINE OF SAID LOT 1, A
DISTANCE OF 69.78 FEET TO THE POINT OF BEGINNING.
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