HomeMy WebLinkAboutcocc_daniel_corp_security_agreement_20180821 CFN 2018280453, OR BK 8333 Page 2876, Recorded 12/20/2018 at 02 : 34 PM Scott
Ellis , Clerk of Courts , Brevard County
Garganese Weiss D'Agresta
PO Box 2873
Orlando, FL 32802
13/11/0
Prepared by and Return to:
City of Cape Canaveral
Anthony A. Garganese, City Attorney
100 Polk Avenue
Cape Canaveral,Florida 32920
SECURITY AGREEMENT
This Security Agreement (hereinafter called the "Agreement") is made this 21" day of
August, 2018 by and between Daniel Corporation of Winter Park, Inc., a Florida corporation
(hereafter called "the Corporation") and the City of Cape Canaveral, a Florida municipal
corporation,hereafter called"the City").
WHEREAS, the Corporation is seeking sewer service for a 150-room hotel and other
occupied commercial development from the City; and
WHEREAS,the property for which sewer service is requested for the proposed hotel and
other occupied commercial development lies within the boundaries and service territory of the City
and consists of 2.384 acres,more or less, and is legally described on the attached EXHIBIT "A"
which is hereby incorporated herein by this reference(hereinafter called the"Property");and
WHEREAS,the Corporation has agreed to construct a private lift station and sewer lines
necessary to connect any future development on the Property into the City sewer system,as shown
on the Sewer Plans (as that term is defined below) (hereinafter called "Private Sewer
Improvements"); and
WHEREAS,the Corporation has also agreed to connect the Private Sewer Improvements
to the City's sewer system by constructing and conveying to the City a public sewer line that will
be constructed along and within the State Road AIA (Astronaut Boulevard) right of way and
beneath State Road AlA before connecting into the manhole connected into the City's L-7 lift
station at the RaceTrac Petroleum,Inc.(hereinafter called"RaceTrac")property(hereinafter called
the"Public Sewer Improvement"); and
WHEREAS, the Corporation and City agree that the Private and Public Sewer
Improvements constructed under this Agreement shall be in accordance with the construction plans
which will be diligently completed and submitted by Corporation for approval by the City in
Daniel Corporation and City of Cape Canaveral
Security Agreement
Page 1 of 11
OR BK 8333 PG 2877
accordance with the City Code subsequent to this Agreement being executed by the parties
(hereinafter called the "Sewer Plans");and
WHEREAS, due to the proximity of the Property at the northern edge of the boundaries
of the City of Cape Canaveral,the sewer infrastructure constructed by the Corporation will likely
only benefit the Property and a few other surrounding properties, and that initially the sewer
infrastructure will only serve the Property including the proposed hotel development; and
WHEREAS,as a condition of approving the site plan for the proposed hotel development
and to providing sewer service to the Property,the City requires the Corporation to provide security
for the cost of any maintenance,repair or replacement of the portion of the sewer line that will be
conveyed to the City and installed in accordance with the Sewer Plans; and
WHEREAS, this Agreement is intended to run with the land and be binding upon the
Property pursuant to the terms and conditions stated herein;
NOW,THERFORE,for value received,and in consideration of the covenants,promises,
provisions and conditions set forth in this Security Agreement,the Corporation and the City hereby
agree as follows:
1. Recitals. The recitals set forth above are hereby incorporated by reference as part of this
Agreement as though the same were set forth in full.
2. Sewer Line Construction. Upon the Effective Date of this Agreement, the Corporation
shall diligently complete and submit the Sewer Plans to the City for approval. Upon approval of
the Sewer Plans by the City, the Corporation shall permit, acquire, construct and install, at the
expense 'of the Corporation, the Public and Private Sewer Improvements and any necessary
easements. In furtherance of said permitting, acquisition, construction and installation the City
agrees to allow the Corporation to connect the Property, via the Private and Public Sewer
Improvements, into the manhole,at the RaceTrac property connected to its L-7 lift station in the
alignment along and beneath State Road AIA (Astronaut Boulevard) as required and shown on
the Sewer Plans. However,the Corporation acknowledges that the existing manhole and related
sewer line are planned to be upgraded by RaceTrac,as part of RaceTrac's planned redevelopment
project, and these upgrades will be necessary to support the Corporation's connection. As such,
in the event said existing manhole and related sewer line have not been upgraded by RaceTrac,
prior to the time the Corporation is ready and required to connect thereto to provide service to the
Daniel Corporation and City of Cape Canaveral
Security Agreement
Page 2 of 11
r
OR BK 8333 PG 2878
Property, the Corporation agrees to construct by itself, or in conjunction with RaceTrac, the
upgrades to the manhole and related sewer line including the relocation of said line if relocation is
necessary. A complete copy of the Sewer Plans shall be maintained on file at Cape Canaveral City
Hall. To the extent required by the Florida Department of Transportation (hereinafter called
"FDOT") to install the Public Sewer Improvements beneath or within the State Road AIA, the
City agrees to apply for any permit required by the FDOT for said installation provided that all
costs of the permit and the costs of design and construction of the Public Sewer Improvements are
borne and paid for by the Corporation. The Corporation shall also fully cooperate with the City
by providing all necessary information and documents required by the FDOT to support the
issuance of the required permits.
3. Conveyance of Sewer Improvements. Upon completion of the Public Sewer
Improvements in a manner satisfactory to the City, the Corporation shall convey to the City, by
bill of sale, the Public Sewer Improvements. The City agrees to accept ownership of the Public
Sewer Improvements and to, thereafter, provide sewer service to the hotel and other occupied
commercial development on the Property. The Private Sewer Improvements shall be owned,
operated and maintained by the Corporation.
4. Special Benefit—Public Sewer Improvements. The Corporation acknowledges and
agrees that the Public Sewer Improvements constructed in accordance with this Agreement will
potentially benefit only a limited number of properties including the Property. Upon conveyance
of the Public Sewer Infrastructure to the City,the Corporation also acknowledges and agrees that
the maintenance, repair, replacement or relocation of any part or portion of the Public Sewer
Improvements by the City shall provide a special benefit to the Property and all occupied buildings
constructed thereon.
5. Security. For a period of ten (10) years following the Corporation's conveyance of the
Public Infrastructure to the City, the Corporation and the City agree that the Corporation shall
provide security for the full cost of maintenance, repair, or replacement of the Public Sewer
Improvements, and the full cost of the relocation of any part or portion of Public Sewer
Improvements located within State Road AlA if relocation is required by the FDOT, in the
following forms:
Daniel Corporation and City of Cape Canaveral
Security Agreement
Page 3of11
OR BK 8333 PG 2879
a. For the first ten (10) years beginning on the date the Public Sewer Improvements
are connected to the City sewer system, an annually renewable maintenance bond from a
reputable surety, payable in whole or in part to the City as obligee, in the amount of 25% of
the cost of the Public Sewer Improvements,which cost shall be documented by the Corporation
prior to City's acceptance of the maintenance bond and improvements.No sooner than two(2)
years after the maintenance bond is initially provided to the City by the Corporation,
Corporation shall be required, upon written request by the City, to annually increase the
amount of the bond based on the increases observed in the Engineering News Record -
Construction Cost Index (CCI), to account for the inflation in the future cost of construction
of capital infrastructure projects. The condition of payment to the City under the bond shall
be the City's presentation of a good faith estimate of expenses the City has,or will,necessarily
incur for the maintenance, repair, replacement or FDOT Relocation of any part or portion of
the Public Sewer Improvements during the term of the maintenance bond. However,after two
(2) years from the date that the Public Sewer Improvements are conveyed to the City, if the
City previously allowed or allows thereafter other property owners to connect to the Public
Sewer Infrastructure,the Corporation shall only be responsible for its proportionate share of
said expenses based upon the ratio of the gallons per day of sewer capacity used by the hotel
and other occupied buildings on the Property bears to the total gallons per day of sewer capacity
used by all users of the Public Sewer Improvements. In the event that payment is not provided
by the surety, or the amount provided by the surety does not cover the Corporation's full share
of the expenses incurred by the City for the maintenance, repair, replacement or FDOT
Relocation of the Public Sewer Improvements, or any part or portion thereof, the Corporation
shall be required to pay its share of the expenses in excess of the proceeds paid to the City by
the surety. Payment shall be made to the City within sixty (60) days of receipt of a written
invoice from the City detailing the expenses incurred by the City. If Corporation fails to timely
make the payment required by this Agreement,the Corporation acknowledges and agrees that
the City shall have the right to impose a special assessment on the Property for the expenses
owed by the Corporation pursuant to this subparagraph 5(a).
b. After the ten (10) year maintenance bond period has elapsed, the 'Corporation
acknowledges and agrees to pay its proportionate share of any sewer assessment the City may
Daniel Corporation and City of Cape Canaveral
Security Agreement
Page 4 of 11
OR BK 8333 PG 2880
impose for the maintenance,repair, replacement or FDOT Relocation of any part or portion of
the Public Sewer Improvements by the City, provided the sewer assessment imposed by the
City shall not exceed its fair share of the maintenance,repair,replacement or FDOT Relocation
expense based upon the ratio of the gallons per day of sewer capacity used by the hotel and
other occupied buildings on the Property bears to the total gallons per day of sewer capacity
used by all users of the Public Sewer Improvements. Payment of the Corporation's share of
the expense shall be made to the City within sixty(60)days of receipt of a written invoice from
the City detailing the expenses incurred by the City. If Corporation fails to timely make the
payment required by this Agreement, the Corporation acknowledges and agrees that the City
shall have the right to impose a special assessment on the Property for the expenses owed by
the Corporation pursuant to this subparagraph 5(b).
c. Any special assessment imposed by the City pursuant to this Paragraph 5 for the
maintenance, repair, replacement or FDOT Relocation expenses incurred by the City for the
Public Sewer Improvements shall also include all necessary administrative, advertising and
legal costs (including reasonable attorney's fees) incurred by the City in imposing the special
assessment. The City may, at its discretion, utilize the uniform method for levying non-ad
valorem assessments, or any other lawful method, under Florida law to impose, collect and
enforce the special assessment agreed to and allowed by this Agreement. The Corporation
hereby agrees to pay the special assessment when due,and waives any and all rights,to object,
contest or protest the special assessment in any way whatsoever.
6. Effect. The Corporation shall be fully responsible for the initial construction of
the Public Sewer Improvements, and the City assumes no responsibility or obligation for said
construction until such time that the City accepts conveyance of the Public Sewer Improvements
from the Corporation, and then only in accordance with the terms and conditions of this
Agreement. The Corporation and City shall cooperate fully with each other to effectuate the terms,
conditions and intentions of this Agreement.
7. Authority.. Each party hereby represents and warrants to the other that they have
full power and authority to enter into this Agreement.The Corporation also represents that all legal
and equitable title to the Property is currently vested in and held by the Corporation and
Daniel Corporation and City of Cape Canaveral
Security Agreement
Page 5 of 11
OR BK 8333 PG 2881
Corporation is duly authorized to bind the Property to the terms, conditions, restrictions and
requirements contained in this Agreement.
8. Notices. Any notice required or allowed to be delivered hereunder shall be in
writing and shall be deemed to be delivered when: (a) hand delivered to the official hereinafter
designated, or(b)upon receipt of such notice, when deposited in the United States mail,postage
prepaid, certified or registered mail, return receipt requested, or (c) one day after deposit with a
nationally recognized overnight courier service, e.g. Federal Express, UPS, Airborne, Express
Mail etc., addressed to a party at the other address as specified below or from time to time by
written notice to the other party delivered in accordance herewith.
Corporation: Daniel Corporation of Winter Park, Inc.
Attn: President Laila Witwicky
100 E.Faith Terrace
Maitland, Florida 32751
(407)644-6900
With a copy to the owner of the Property as noted on the most recent version of the Brevard County
Property Appraiser's website.
City: City Manager
City of Cape Canaveral
100 Polk Avenue
Cape Canaveral,Florida 32920
(321) 868-1220
9. Defaults. Failure by either party to perform each and every one of its
obligations hereunder shall constitute a default, entitling the non-defaulting party to pursue
whatever remedies are available to it as expressly provided under this Agreement or Florida law
or equity including,without limitation, an action for specific performance and/or injunctive relief.
Prior to any party filing any action in a court of competent jurisdiction as a result of a default under
this Agreement,the non-defaulting party shall first provide the defaulting party with written notice
of said default.Upon receipt of said notice,the defaulting party shall be provided a thirty(30)day
opportunity in which to cure the default to the reasonable satisfaction of the non-defaulting party
prior to filing any such action. This Paragraph shall not apply to the City's right to levy, at its
discretion, a special assessment under Paragraph 5 of this Agreement.
Daniel Corporation and City of Cape Canaveral
Security Agreement
Page 6 of 11
OR BK 8333 PG 2882
10. Applicable Law; Venue. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida. The venue for any legal action instituted to
enforce or interpret any provision of this Agreement shall be in Brevard County, Florida for state
action and Orlando,Florida for any federal action.
11. Amendments. This Agreement shall not be modified or amended except by
written agreement duly executed by both parties hereto.
12. Entire Agreement. This Agreement supersedes any other agreement, oral or
written,between the City and the Corporation regarding the subject matter hereof.
13. Severability. If any provision of this Agreement shall be held to be invalid
or unenforceable to any extent by a court of competent jurisdiction, the same shall not affect in
any respect the validity or enforceability of the remainder of this Agreement, and under no
circumstances shall it affect the City's right to levy a special assessment against the Property for
any lawful purpose pursuant to law including,but not limited to,recovering the expenses incurred
by the City for the maintenance, repair or replacement of the Sewer Improvements, or any part
thereof.
14. Assignment. This Agreement shall be assignable by the Corporation and upon
assignment,the terms of this agreement shall be binding upon any assignee or successor-in-interest
to the Corporation. Upon recordation of this Agreement, this Agreement shall automatically be
binding upon and shall inure to the benefit of the successors and assigns of each of the parties. All
subsequent purchasers of all or part of the Property shall be considered assignees subject to the
requirements of this Agreement.
15. Recordation. This Agreement shall be recorded by the City within thirty(30)days
of the Corporation acquiring the Property,and this Agreement shall constitute a development order
and run with the Property unless subsequently repealed and terminated by the City. The
Corporation acknowledges and agrees that the recordation of a fully executed copy of this
Agreement against the Property is a condition precedent to the Corporation proceeding with the
implementation of the site plan development order approved by the City on
06TO 6e►2 a 3, ac)1 Y for the proposed hotel and commercial development on the
Property. The Corporation shall be responsible for obtaining, and recording at its expense, an
executed joinder to this Agreement from all mortgagees with previously recorded mortgages
Daniel Corporation and City of Cape Canaveral
Security Agreement
Page 7 of 11
OR BK 8333 PG 2883
encumbering the Property prior to the recordation of this Agreement in a form mutually acceptable
to the parties.
16. Police Powers; Operational Discretion; Sovereign Immunity. The City hereby
reserves all police powers granted to the City by law. In no way shall this Agreement be construed
as the City bargaining away or surrendering its police powers. The Property shall be subject to all
applicable City ordinances and other applicable laws. Further, nothing contained in this
Agreement shall be construed as a waiver of the City's discretion to operate and maintain its
sanitary sewer utility in a manner that the City deems is in its and its utility customers best interests
including, but not limited to, continuing to provide sewer services to the Property, without
disruption of service, from an alternative connection point to a City sewer lift station located on
the east side of State Road Al A,and thereafter abandoning in place or removing any part or portion
of Public Sewer Infrastructure located within State Road AIA. Additionally,nothing contained in
this Agreement shall be construed as a waiver of the City's right to sovereign immunity under
Section 768.28,Florida Statutes,or any other limitation on the City's potential liability under state
and federal law.
17. Interpretation. The parties hereby agree and acknowledge that they have
both participated equally in the drafting of this Agreement and no party shall be favored or
disfavored regarding the interpretation of this Agreement in the event of a dispute between the
parties.
18. Permits. Nothing herein shall limit the City's authority to grant or deny any
development permit applications or requests subsequent to the effective date of this Agreement.
The failure of this Agreement to address any particular City, county, state and federal permit,
condition, term or restriction shall not relieve the Corporation or the City of the necessity of
complying with the law governing said permitting requirements, conditions,term,or restriction.
19. Waiver. The waiver by any party of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any other provision of the Agreement
or of any future breach of the provision so waived.
20. Indemnification by Corporation. The Corporation hereby agrees to indemnify,
release and hold harmless the City and its councilmembers, employees and attorneys from and
against all claims, losses, damages, personal injuries (including, but not limited to, death) or
Daniel Corporation and City of Cape Canaveral
Security Agreement
Page 8of11
OR BK 8333 PG 2884
liability(including reasonable attorney's fees and costs through all appellate proceedings),directly
or indirectly arising from,out of or caused by the Corporation and Corporation's contractor's and
subcontractor's performance of the activities required to construct the Sewer Improvements and
hotel and commercial development project on the Property in furtherance of this Agreement. This
indemnification shall survive the termination of this Agreement.
21. Effective Date. This Agreement shall take effect on the date a copy of the Agreement
signed by the President of the Corporation is presented to and approved by the City of Cape
Canaveral City Council,which date is set forth below.
Approved by the City Council on the 21'day of August,2018
IN WITNESS WHEREOF,the Corporation and the City have executed this Agreement in a
form sufficient to bind them as of the Effective Date and the Property as of the date that this
Agreement is recorded on the Property.
CITY OF C PE CANAVERAL
By:
Bob Hoog,Ma
ATTEST:
B
Go'th'rCM ,City Clerk
1h,
At rA'f j•YOy' t _
TY SP'' t
' f
09 1=
q
APP ®?F aA FORM AND LEGALITY
RE i i
For US' ' d dance of the City of Cape Canaveral,Florida only:
An ny A. Garganese, City Attorney
Daniel Corporation and City of Cape Canaveral
Security Agreement
Page 9 of 11
OR BK 8333 PG 2885
Signed, sealed and delivered in the DANIEL CORPORATION OF WINTER
presence of the following witnesses: PARK,INC., a Florida Corporation
By:
Sign W' ness Print name: Laila Witwicky
c. Its President
Printed Name of Witness
"'C' 60-
atu e of Wi ess
,`
Printed Name of Witness
COUNTY OF ` na
J
The foregoing instrument was acknowledged before me this day of _
2- by Laila Witwicky, as President of DANIEL CORPORATION OF WINTER PARK, INC.,
a Florida corporation, on behalf of said corporation.sHe i_personally known to m or produced
as identification.'--
. '
(NOTARY SEAL)
Ry a Public Signature)
CV;f.*01 1i U Pa2
109
(Prin Name) ff
M a
Notary Public, State o ✓ 0.
Commission No.
My Commission Expires: "?J- 1 -a 0
D
Daniel Corporation and City of Cape Canaveral
Security Agreement
Page 10 of 11
OR BK 8333 PG 2886
EXHIBIT"A"
Legal Description of Property
A PARCEL OF-LAND EYING IN SECTION-155,TQ%YNSW 24
S0UTH,_RANdB-37 EAST.TAIZ AuAcSEE BASE MERIDIAN,
BREVARD COUNTY,FLORIDA,AND BRING MORE
PARTICULARLY DESCRIBED AS FOLLOWS=
COMMENCE AT THE NORTHEAST CORNER OF SECTION 15,
T4'CV,NS1-IIP•24 UTH;'RANGE=37 EAST to CERTIFIED SECTION
CORNER AS RECORDED IN 'HE:DEPARTMENT;OF'NATURAL
RESOURCES bbCUN1EN 'NC1.00187,DATED APR.IL'01,=19842
T-HENCES 004,T3511 E,ALON4 THE EAST LIFE OF SAID SECTION'
15,ADISTANCE dF 181.9.97 FEET TO A POINTON TH&NORTH
L6iE OF THE NORTH 174.90 FEET OF GOVERNMENT LOT 2 OF
,AFORESAID SECTION 15;THENCE N 8985244"W,ALONG SAID
NORTH LINE,A DISTANCE OF.1878.68 FEET TO A POINT THAT
LIES,ON THE CENTERLINE OF COLUMBIA ROAD AT ITS
SOUTHERLYEND,SAID POINT BEING THE
P.OItM.OF-BEGINI"G-THENCE CONTINUE-S 89452%40 W,A
DISTANCE 4F 896.d3-FEET TO THE EAsTERLY-1;1b&OF THE
LANDS ACQUIRED BY THE CANAVERAL PORT AUTHORITY
-THROUGH CONDEMNATION FOR ROADWAY PURPOSES;
THENCE S 30052'58"F.ALONG SAID EASTERLY LINE,A
DISTANCE,OF 204.05 FEET TO THE'SOUTH LINE OF THE
NORTH 174.90 FEET OP GOVERNMENT LOT 2 AFORESAID;
THENCKS 89,Q5T4V1 E,AL0NQSAID1-90UTH',=,,A AISFTANCE
OF 508.96 FEET;THENCE'N,00716"'E A DIPTANO&OF`1'54.
FEET;THEI' CES 8'9052'44'E,A DYSTANCE OF 282:00 FEER'T4
THS CENTRRLINE OF COLUMRIARGAD EXTENDED SOUTH,
THENCE`N 0000'00"E,ALONG SAID LIME A DISTANCE OF 20.00
FEET TO THE POIN r-OF BEGINNING.
CONTAINING 2.384 ACRES,MORE OR LESS,AND BEING
SU CT TO AN INIGRESSIE6Rft5 UTILITIES&DRAINAQE
EASEMENT ACROSS THE NORTH°20.00 FEET OF THE EAST
282.06 FEET THEREOFAND ANY,OTHER EASEMENTS AND/.OR.
RIQUTS-OF-W,AY OF RECORD:
Daniel Corporation and City of Cape Canaveral
Security Agreement
Page 11 of 11
OR BK 8333 PG 2887
ASSIGNMENT OF SECURITY AGREEMENT
For good and valuable consideration,the sufficiency and receipt of which is hereby
acknowledged by the parties hereto,DANIEL CORPORATION of WINTER PARK,a Florida
Corporation(hereinafter"Assignor")hereby assigns, sells,conveys,and transfers all of
Assignor's interest to PORT HOSPITALITY, LLC., a Florida LLC. (hereinafter"Assignee") in
that certain SECURITY AGREEMENT between the City of Cape Canaveral and Daniel
Corporation dated August 21,2018,which agreement pertains to certain obligations of the
parties relating to Daniel Corporation receiving sewer service from the City of Cape Canaveral.
Assignor agrees that all rights and obligations of Assignor arising under the above listed
Agreement or otherwise by law or by the existence of conditions precedent, which may or may
not have occurred as of the date of this Assignment,are hereby included in this Assignment and
Assignee hereby agrees to accept same as if Assignee was an original party to the aforesaid
Agreement. This Assignment shall be binding upon and inure to the benefit of Assignor and
Assignee and their respective affiliates, successors, assigns,heir and devisees and legal
representatives.
Assignor represents and warrants that the interest of Assignor in the Agreement subject to
this Assignment is free of liens, claims or encumbrances of any kind by third parties. Assignee
agrees to hold harmless and indemnify Assignor for such liens, claims or encumbrances of any
kind to which the above listed contracts are subject and which have disclosed and described by
Assignor hereinabove.
It is the intention of the parties that in the event a court of competent jurisdiction finds
that any provision or portion of this Assignment is unenforceable for any reason, the balance and
remainder of this Assignment shall remain effective and enforceable to the extent possible under
the circumstances then existing.
Assignor and Assignee agree that this Assignment shall be deemed governed by the laws
of the State of Florida and, further, each agrees to submit to the subject matter and personal
jurisdiction of the courts of that state.This Assignment supersedes all prior and contemporaneous
agreements and discussions of the parties hereto regarding the subject matter hereof and the
Agreement assigned hereby and, as written,constitutes the entire agreement of the parties.
AGREED,signed and made effective this the /jday of December 2018.
(SIGNATURES ON PAGE 2)
1
OR BK 8333 PG 2888
f - -
ASSIGNOR: BY:
President.Daniel Corporation of Winter Park
DATE: December��?018
ASSIGNEE: BY: —For Daniel Corporation of Winter Park, as Manager for Port Hospitality, LLC
DATE: DecemberA2,2018
City of Cape Canaveral consent: BY: a1 t"1 euA'V'.&-
Title:
Date: December 4 2018
2