HomeMy WebLinkAboutResolution No. 2015-01 • ( CFM 2015016575,OR BK 7289 PAGE 2379.
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Recorded 01/27/2015 at 12:01 PM,Scott Ellis,Clerk of Courts,
IL-CA � �j�f �2 3 L9 Brevard County
Pgs:11
RESOLUTION NO. 2015-01
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF CAPE CANAVERAL, FLORIDA, RELATING TO THE
GRANT OF A UTILITY EASEMENT TO THE CITY OF
CAPE CANAVERAL; PROVIDING FOR THE REPEAL OF
PRIOR INCONSISTENT RESOLUTIONS; SEVERABILITY;
AND AN EFFECTIVE DATE.
WHEREAS, Earl R. McMillin and Mary W. McMillin, his spouse, are Trustees of the
McMillin Family Trust, dated August 16, 1995, as amended (hereinafter"Trust"); and
WHEREAS, the Trust is the fee simple owner of a 100' long x 21' wide strip of real
property lying immediately west of Lots 21 and 22 of the Banana River Estates Subdivision, ("the
Property"); and
WHEREAS, the Trust desires to grant to the City a utility easement upon the Property by
virtue of that certain Sanitary Sewer Easement Agreement attached hereto as Exhibit "A"
("Easement Agreement"), in exchange for good and valuable consideration as set forth in said
Easement Agreement; and
WHEREAS, the City desires to accept said easement pursuant to the terms of the
Easement Agreement; and
WHEREAS, the City Council of the City of Cape Canaveral, Florida, hereby finds this
Resolution to be in the best interests of the public health,safety,and welfare of the citizens of Cape
Canaveral.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CAPE
CANAVERAL HEREBY RESOLVES,AS FOLLOWS:
Section 1. Recitals. The foregoing recitals are true and correct and are hereby
fully incorporated herein by this reference as part of this Resolution.
Section 2. Acceptance of Easement. The City Council hereby accepts the 100' long
x 21' wide easement upon the Property pursuant to the terms and conditions of the Easement
Agreement set forth in Exhibit"A".
Section 3. Recording. Following adoption of this Resolution by the City Council, the
City Clerk shall record the Easement Agreement in the Official Records for Brevard County,
Florida.
Section 4. Authority of Mayor. The Mayor is authorized and empowered by vote of
City of Cape Canaveral
Resolution No.2015-01
Page 1 of 2
the City Council of the City of Cape Canaveral to execute the Easement Agreement on behalf of
the City and bind the City thereto.
Section 5. Repeal of Prior Inconsistent Resolutions. All prior inconsistent
resolutions adopted by the City Council, or parts of prior resolutions in conflict herewith, are
hereby repealed to the extent of the conflict.
Section 6. Severability. If any section, subsection, sentence, clause, phrase, word or
provision of this Resolution is for any reason held invalid or unconstitutional by any court of
competent jurisdiction,whether for substantive,procedural, or any other reason, such portion shall
be deemed a separate, distinct and independent provision, and such holding shall not affect the
validity of the remaining portions of this Resolution.
Section 7. Effective Date. This Resolution shall become effective immediately upon
adoption by the Cape Canaveral City Council and recording in the Official Records for Brevard
County, Florida.
RESOLVED by the City Council of the City of Cape Canaveral, Florida, in a regular
meeting assembled on this 20th day of January, 2015.
lr
Da1 ckmGVV4QQRA
ROCKY RANDEL,S, Mayor
ATTEST:
For Against
John Bond g
ANG LA APPER , City Clerk
Bob Hoog Motion
Buzz Petsos Second
Approved as to legal form and sufficiency for Rocky Randels x
the City of Cape Canaveral only:
Betty Walsh Absent
ANTHONY A. GARGANESE, City Attorney
City of Cape Canaveral
Resolution No.2015-01
Page 2 of 2
Return to:
Angela Apperson,City Clerk
City of Cape Canaveral
105 Polk Avenue
Cape Canaveral,FL 32920
Res.No.2015-01
Parcel ID: 24-37-26-00-00262.0-0000.00 Exhibit"A"
SANITARY SEWER EASEMENT
AGREEMENT
THIS SANITARY SEWER EASEMENT AGREEMENT (hereinafter the
"Agreement") is made on the date shown in the Acknowledgement sealed by the Notary Public,
between the McMillin Family Trust, dated August 16, 1995, the address of which is P.O. Box
1086, Cape Canaveral, Florida 32920-1086 (hereinafter the "Trust"), and the City of Cape
Canaveral, a Florida municipal corporation, the address of which is 105 Polk Avenue, Cape
Canaveral, Florida, 32920 (hereinafter the"City").
RECITALS
WHEREAS, the Trust is the fee simple owner of certain real property located within the
City comprised of a 100' long x 21' wide strip of land lying immediately west of Lots 21 and 22
of the Banana River Estates Subdivision. This 100' x 21' strip is hereinafter called the
"Property;" and,
WHEREAS, a 20' x 565' right-of-way running north/south and within the City is
commonly called Holman Road. It is hereinafter referred to as the"Road;"and,
WHEREAS, the 21' wide north boundary of the Property runs east/west and abuts the
south boundary of the Road which runs east/west; and,
WHEREAS, the property is described in particular detail in the two-page Exhibit "A,"
which is a "Description" and "Sketch to Accompany Description" prepared by Allen
Engineering, Inc., which is attached hereto and fully incorporated into this Agreement; and,
WHEREAS, the City desires to acquire a perpetual, nonexclusive easement (hereinafter
the "Easement")on the Property for the uses described in this Agreement; and
WHEREAS, the Trust desires to commit to certain undertakings to the City in
consideration for the City allowing enclosure of the Easement.
NOW, THEREFORE, in consideration of the City agreeing to the items stated in
paragraphs 1 through 6 in the section entitled "CONSIDERATION, the Trust and the City
hereby agree as follows:
City of Cape Canaveral/McMillin Family Trust
Utility Easement Agreement
Page 1 of 7
Res.No.2015-01
Exhibit"A"
CONSIDERATION
1. The City cannot assign, convey or otherwise transfer the Easement, or any part thereof,
except it may transfer its interests, only in total, to a governmental entity that is a successor in
interest to the City.
2. The Easement cannot be transferred to any non-governmental entity or quasi-
governmental entity or to any person or persons.
3. The Easement is for the sole purpose of placing, constructing, repairing, operating and
maintaining one(1) sanitary sewer system.
4. The City shall not take any steps to connect the Road to any public or private right-of-
way to the south of the Property for either vehicular or pedestrian traffic via any route prior to
September 13, 2034.
5. The Trust may enclose the Property with a fence without being required to pay any fees
to the City.
6. The City shall promptly repair, or cause to be repaired, the fence and/or any gates to the
extent that any damage is caused by the City or its officers, employees, agents or contractors.
As consideration for the right to enclose the Property the Trust agrees as follows:
1. Any fence shall include double swing gates, so long as each of the two (2)gates is at least
eight feet(8') in width and provide a total fence opening of at least sixteen feet(16').
2. The Trust shall provide the City with the means of opening any locking devices placed on
the double swing gates.
3. The Trust shall keep any fence and gates it has installed in good working order.
4. The City shall have unlimited access to the Easement in order that the purposes of the
Easement may be fully effectuated.
EASEMENT
Section 1.. Incorporation. All the above provisions, the title, opening paragraph, the
Recitals and the Consideration are true and correct and are incorporated by reference.
Section 2. Grant. The Trust hereby voluntarily grants to the City and any successor
governmental entities to the City, a perpetual nonexclusive twenty-one foot(21')wide Easement
over,under, through and across the entire length of the Property.
City of Cape Canaveral/McMillin Family Trust
Utility Easement Agreement
Page 2 of 7
Res.No.2015-01
Exhibit"A"
Section 3. Purpose. The Easement is granted for the express purpose of allowing the City to
perpetually use the Property within the Easement solely for placing, constructing, repairing,
operating and maintaining one(1) sanitary sewer system through and under the Property.
Section 4. Rights and Obligations of the City. To accomplish the purposes in Section 3,
the City has the following rights:
1. To inspect, alter, improve, construct, repair, rebuild, remove, connect to,
disconnect from and maintain one(1) sanitary sewer system;
2. To excavate and refill ditches for the placement of one(1)sanitary sewer system;
3. To place fill on the Property to the extent necessary to enable equipment
necessary to perform the acts set out in Section 4(1) and (2) to be used on the
Property;
4. To do whatever is reasonably and customarily necessary for safe and efficient
performance of the acts set out in Section 4(1) and(2);
5. To protect its rights by appropriate action including,but not limited to,the right to
evict trespassers;
6. To restore or cause to be restored the surface and subsurface of the Property to the
condition it was in prior to the performance of any of the acts set out in Section
4(1)and(2);
7. To carry out all restoration in a workmanlike manner; and,
8. To pay all expenses incurred by the exercise of any of its rights or the fulfillment
of any of its obligations.
Section 5. Use of the Easement by the Trust: Any use of the Easement by the Trust, its
agents, successors or assigns shall not interfere with any of the rights of the City granted by this
Agreement. Neither the Trust nor its agents, successors or assigns shall relocate the sanitary
sewer system, construct any improvements on the Property, or install any landscaping on the
Property which the City believes may interfere with the integrity of the sanitary sewer system.
Neither the Trust nor its agents, successors or assigns, shall have any obligation to maintain the
Property in other than a wild state.
Section 6. Running with the Land. This Agreement shall remain a charge against the
Property. Therefore, this Easement shall run with the land and be automatically assigned by any
deed or other conveyance conveying the Property or any portion of the Property even though the
conveyance makes no reference to these easements as such.
1
City of Cape CanaveraVMcMillin Family Trust
Utility Easement Agreement
Page 3 of 7
Res.No.2015-01
Exhibit"A"
Section 7. Recordation. This Agreement shall be recorded in the Official Records of
Brevard County, Florida and may be re-recorded at any time to preserve the rights of either the
City or the Trust. The City shall pay any costs of the initial recordation.
Section 8. Sovereign Immunity. Nothing contained in this Agreement shall be construed as
a waiver by the City of its right to sovereign immunity per Section 768.28, Florida Statutes, or
other limitations on the potential liability of the City under state or federal law. The City is not
liable under this Agreement for punitive damages or interest for the period before judgment.
Further, the City shall not be liable for any claim or judgment, or portion thereof, to any one
person for more than two hundred thousand ($200,000.00) dollars, or any claim or judgment, or
portion thereof, which, when totaled with all other claims or judgments paid by the State of
Florida or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the
sum of three hundred thousand ($300,000.00) dollars. This Section 8 shall survive the
termination of this Agreement.
Section 9. Indemnification. To the extent provided by law and subject to the limitations set
forth in Section 8 of this Agreement, the City agrees to indemnify, defend and hold harmless the
Trust and Earl R. McMillin and Mary W. McMillin jointly or severally, from any and all claims
for losses, damages, personal injuries (including but not limited to death) or liability arising
from, out of, or caused by the City, its officers, employees, agents, or contractors, negligent or
intentional acts, errors or omissions in carrying out the placement, operation, maintenance,
construction or repair of the sanitary sewer system, except to the extent of negligence or wanton
misconduct of the Trust, Earl R. McMillin or Mary W. McMillin. This Section 9 shall survive
the termination of this Agreement.
This indemnification provision obligates the City to defend at its own expense or to
provide for such defense, of any and all claims of liability and all suits or actions of every name
and description that may be brought against the Trust and/or Earl R. McMillion and/or Mary W.
McMillin,jointly or severally, which may result under this Agreement. In all events, the Trust
and/or Earl R. McMillin and/or Mary W. McMillin shall be permitted to choose legal counsel of
its sole choice, the fees for which shall be subject to and included with this indemnification
provided that so long as the fees are not greater than a rate deemed reasonable in Brevard
County, Florida.
Section 10. Injunctive Relief. The Trust, Earl R. McMillin and Mary W. McMillin,
individual, and the City agree that in the event of default, there may not be an adequate remedy
at law and, therefore, the Trust, Earl R. McMillin and Mary W. McMillin, individually, or the
City shall be entitled to seek injunctive relief, including a mandatory injunction.
Section 11. Governing Law and Venue. This Agreement shall be governed by the laws of
the State of Florida. Venue for all disputes shall be properly placed in Brevard County, Florida.
The parties agree that the Agreement was consummated in Brevard County, Florida, and that the
site of the Easement is in Brevard County, Florida.
Section 12. Notice. All notices, demands, requests, consents, approvals or other
communications (hereinafter, "Notices") required or permitted to be given hereunder or which
City of Cape Canaveral/McMillin Family Trust
Utility Easement Agreement
Page4of7
Res. No.2015-01
Exhibit"A"
are given with respect to this Agreement shall be effective only if in writing and delivered by
personal service, delivered to an overnight courier service with guaranteed next day delivery or
mailed by certified mail, return receipt requested,postage prepaid, addressed as follows:
TO TRUST:
McMillin Family Trust
P.O. Box 1086
Cape Canaveral, Florida
32920-1086
TO CITY:
Attn: City Manager
City of Cape Canaveral
105 Polk Avenue
Cape Canaveral, Florida
32920
The Trust or the City may designate an alternative address to which Notices are to be sent by
giving Notice of the alternative address to the opposite party.
The attorneys for the Trust and the City are authorized to give any Notice permitted per this
Agreement.
Any Notice shall be deemed received as follows:
1. If delivered by personal service, on the date of delivery;
2. If delivered by overnight courier service, on the first business day immediately
following delivery to the courier service; or
3. If delivered by United States Postal Service, on the third business day after
mailing.
Section 13. Modification. This Agreement may only be modified by a properly executed
written instrument.
Section 14. Entire Agreement. This Agreement constitutes the entire agreement between the
Trust and the City and supersedes any oral or written communication between the Trust and the
City related to the subject matter of this Agreement.
Section 15. Representation. The undersigned representatives hereby represent and warrant
that this Agreement has been duly authorized by their respective agencies and that the
City of Cape Canaveral/McMillin Family Trust
Utility Easement Agreement
Page 5 of 7
Res.No.2015-01
Exhibit"A"
undersigned representatives have the authority to execute this Agreement on behalf of their
respective agencies.
IN WITNESS WHEREOF, the Grantor has hereunto set its hands and seals on the day
and year first above written.
Signed in the presence of: GRANTOR
(MCMILLIN FAMILY TRUST, dated
August 16, 1995):
ter.' (Y1 ro n A- -- . - ,e. -
Witness Earl R. McMillin, Trustee
ltness
STATE OF FLORIDA
COUNTY OF BREVARD
AM-
S Sa
The foregoing instrument was acknowledged before me this 2Z day of A01 ,
201 , by Earl R. McMillin, ["who is personally known to me or El who produced
as identification.
(Notary Seal) ite• ffireAdr--.
NOT Y PUBLIC
My Commission Expires:
Y y• ANGELA M.APPERSON
L'`:.. := MY COMMISSION#FF 095122 I Personally Known
:.......1a EXPIRES:April 13,2018
?,' ; Bonded Thru Notary Public Underwriters OR Produced Identification
Rr"
' Type of Identification Produced
I City of Cape CanaverallMcMillin Family Trust
Utility Easement Agreement
Page6of7
i
Res.No.2015-01
Exhibit"A"
Signed in the presence of:
v`n- Pr) • 'm` 0 (\ c, By:chi d 971 .
Witness Mars\ McMillin, Trustee
ltness
STATE OF FLORIDA
COUNTY OF BREVARD
(The foregoing instrument was acknowledged before me this 22 day of ,nffrurJ ,
2014, by Mary W. McMillin, Lho is personally known to me or ❑ who produced
as identification.
(Notary Seal) Mtn
NOT Y PUBLIC
My Commission Expires:
'r;'y ANGELA M.APPERSON
,., MY COMMISSION N FF 095122 Personally known
EXPIRES:April 13,2018 OR Produced Identification
•,f Rf hd;:•' Bonded Thru Notary Pubic Undeiwrilers
Type of Identification Produced
ATTEST: - 0.4, � _ '= GRANTEE(CITY):
o
C\4‘0\ GZ(74"4-‘24.a-/
Ang a Apperson, i y Clerk M.R. Randels aka"Rocky" Randels,Mayor
City of Cape Canaveral City of Cape Canaveral
City of Cape Canaveral/McMillin Family Trust
Utility Easement Agreement
Page 7 of 7
SKETCH TO ACCOMPANY DESCRIPTION
NOT A BOUNDARY SURVEY
Res. No.2015-01
HOLMAN ROAD Exhibit"A"
(40'RIGHT OF WAY PER PLAT)
0
N Point Of Commencement
N INTERSECTION OF W. LINE OF LOT 27 OF BANANA RIVER ESTATES
AND S. RIGHT OF WAY LINE OF HOLMAN ROAD (ALSO BEING THE
O .: N.W. CORNER OF LOT 27)
N
BANANA RIVER ESTATES
PLAT BOOK 10, PAGE 1
N89°3 '7-ET ,
0 5 10 20
2'�00� • Point Of Beginning
GRAPHIC SCALE (o .
4'x4"CONCRETE MONUMENT STAMPED SCOTT PRAETDRIUS'
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b- ABBREVIATIONS:
2 o LS LAND SURVEYOR
OR BK OFFICIAL RECORDS BOOK
e, II: PG PAGE
" ` POB POINT OF BEGINNING
t A\ LLEN �'° 21.00 •'�
6
A ngineering, Inc. S89'381001413 X11. SURVEYORS - ENGINEERS S893800' EXHIBIT "A"`o 106 DIXIE LANE
COCOA BEACH, FLORIDA 32931 SHEET 10F 2
c TELEPHONE: (321)783-7443 - FAX: (321)783-5902
S rn
3WEBSITE: ww.alleneng.net - EMAIL: info®alleneng.net SEE SHEET 2 FOR DESCRIPTION,
ry 2. SURVEYOR'S CERTIFICATION & NOTES
R 1, PREPARED AND CERTIFIED FOR:
0
DATE: 7-31-14 DRAWN BY: DJG CITY OF CAPE CANAVERAL
JOB NO. 140040 SCALE: 1"=20'
DESCRIPTION Res.No. 2015-01
Exhibit"A"
NOT A BOUNDARY SURVEY
DESCRIPTION: FROM QUIT CLAIM DEED RECORDED IN OR BK 6266 Page 291
That portion of Government Lot 1, Section 26, Township 24 South, Range 37 East more particularly
described as follows:
Commence of the intersection of the West line of Lot 27 of Banana River Estates Subdivision, as per plot
thereof recorded in Plot Book 10, Page 1 of the Public Records of Brevard County, Florida and the South
line of Holman Avenue, this point being the Northwest corner of Lot 27. From the aforesaid Northwest
corner of Lot 27 run South along the West line of Lots 27, 26, 25, 24, 23 and 22 a distance of
approximately 584.50 feet to the Point of Beginning (P08). The POB is marked by a 4"x4" concrete
monument stamped "Scott Proetorius"
For a first course run from the POB o distance of approximately 100.00 feet due South to a Second Point
marked by a 4"x4" concrete marker and by a rebor and cop with identification Slieger" This Second
Point being approximately 39.40 feet North of the South line of Lot 21.
For a second course run West on a line South 89 degrees, 38 minutes and 00 seconds West a distance of
approximately 21.00 feet to o Third Point marked by o rebar and cop with identification "LS 5208"
For a third course run North on a line North 00 degrees, 10 minutes and 49 seconds West a distance of
approximately 99.64 feet to a Fourth Point marked by a rebor and cap with identification "Allen".
For a fourth course run East on a line North 89 degrees, 36 minutes and 47 seconds East o distance of
approximately 21.00 feet to the POB.
Some being a strip of land approximately 100.00 feet in length North and South and approximately 21.00
feet in width Eost and West lying immediately West of OR BK 6266 PG 392.
Lots 21 and 22 of the Banana River Estates Subdivision as shown in the drawing attached hereto, mode
part hereof and marked ATTACHMENT A.
f
SURVEYOR'S NOTES:
1. THIS IS NOT A SURVEY.
2. The bearings shown hereon are based on a bearing of SOUTH, along the West line of Lot 27,
3. o = Denotes change in direction (corners found).
`"
SEE SHEET 1 FOR THE SKETCH TO ACCOMPANY THIS DESCRIPTION
SURVEYOR'S CERTIFICATION:
�� l hereby certify that the attached Property Description was prepared
EXHIBIT A under my direction, in accordance with all applicable requirements of
SHEET 2 OF 2 the "Minimum Technical Standards," for land surveying in the State of
Florida, described in Chapter 5J-17, Florida Administrative Code,
= pursuant to Chapter 472.027, Florida Statutes.
LLE\
ALLEN ENQ/NEERING, INC
` ngineering, Inc. i
o I SURVEYORS — ENGINEERS / —
O 106 DIXIE LANE 114*
COCOA BEACH, FLORIDA 32931 Not valid without the BY: /__
TELEPHONE: (321)783-7443 - FAX: (321)783-5902 signature and the original ( ROBERT M/,SA�LMON
ifEBSITE: www.alieneng.net - EMAIL: into®alleneng.net raised seal of a Florida Professignal Surveyor & Mapper
licensed surveyor and mapper. Florida /'Registration No. 4262
2. PREPARED AND CERTIFIED FOR:
0
t 1. CITY OF CAPE CANAVERAL
JOB NO. 140040 DATE: 7-31-14