HomeMy WebLinkAboutO-19-04 Graves Bros AnnexationFiling # 109579826 E-Filed 06/30/2020 09:54:50 AM
IN THE CIRCUIT COURT FOR THE
NINETEENTH JUDICIAL CIRCUIT IN AND
FOR INDIAN RIVER COUNTY, FLORIDA.
APPELLATE DIVISION
Circuit Case No. I9-AP-142
Petition for Writ of Certiorari
PELICAN ISLAND AUDUBON
SOCIETY, GRAHAM COX,
AND DONNA HALLERAN,
Petitioners, Not final until time expires for filing motion
V. for rehearing, and if filed, disposed of.
CITY OF SEBASTIAN,
Respondent.
Decision filed June 30, 2020.
Petition for writ of certiorari to the Sebastian City Council.
George Glenn, Jr., Vero Beach, for petitioners.
Laura Wendell, Weiss Serota Helfman Cole & Bierman, P.L., Fort Lauderdale, for respondent.
PER CURIAM.
This case involves the Sebastian City Council's ("City Council") ordinance for voluntary
annexation of I,I 18 acres of privately owned land. The Petitioners, landowners within the city
limits, seek this court's review under §171.081(1), Fla. Still. (2019). We find that the Petitioners
have standing to bring this action. See Marlacha Civic Association, Inc. v. City of Cape Coral,
273 So. 3d 243, 246 (Fla. 2d DCA 2019) (citing City of Tampa v. Hillsborough County, 504
So.2d 10, 11 (Fla. 2d DCA 1986).
During this first tier review, the circuit court must determine whether procedural due
process was accorded, whether the essential requirements of the law have been observed, and
whether the administrative findings and judgment are supported by competent substantial
evidence. County of Polusia v. City of Dellona, 925 So. 2d 340, 343 (Fla. 5th DCA 2006) (citing
Droward County v. G.D.V. Intern., Ltd., 787 So. 2d 838, 843 (Fla. 2001). The reviewing court
cannot reweigh evidence or substitute its view for that of the agency. Id.
We agree with the Petitioners' sole argument that the City Council departed from the
essential requirements of law by failing to provide an accurate map of the land to be annexed in
the public notice, as required by statute. §171.044(2), Fla. Smt. (2019) states:
...The description shall include a map clearly showing the area
and a statement that the complete legal description by metes and
bounds and the ordinance can be obtained from the office of the
city clerk.
(Emphasis added). The Florida Supreme Court has stated that the word "shall" is mandatory in
nature. Wheaton v. Wheaton, 261 So. 3d 1236, 1243 (Fla. 2019). The City Council concedes that
the public notice map was missing a five acre parcel, but it argues that the flaw is de minimus.
The complete map was attached to the ordinance. We find that the City Council was required to
include a complete map in the public notice showing the area to be annexed in its entirety, and
the five acre missing parcel was not de minimus. Therefore, the petition for writ of certiorari is
granted, and the City Council's ordinance is quashed.
We grant the Petitioners' motion for appellate attorney's fees. § 171.081, Fla. Stat. (2019).
Determination of amount will be determined by Judge Jeffrey Hendriks.
The Petitioners' motion for appellate costs is not properly before this court, so it is denied
without prejudice to be refiled in the lower tribunal. See Arthur v. Arthur, 54 So. 3d 454, 460
(Fla. 2010). If the motion to tax appellate costs is timely filed in the lower tribunal, appellate
costs must be taxed in favor of the party who prevailed in the appeal. Perez v. Fay, 198 So. 3d
681, 683 (Fla. 2d DCA 2015) (citing Fla. R. App. P. 9.400(a)).
The petition for writ of certiorari is granted, and the City Council's ordinance is
quashed.
HEISEY, MEADOWS, JJ., and HENDRIKS, Acting Circuit Judge, concur.
`a
Conies of above decision
were furnished to the attomevs/oarties
of record on the same date
the decision was filed.
3120190051303
RECORDED IN THE PUBLIC RECORDS OF
JEFFREY R SMITH, CLERK OF COURT
INDIAN RIVER COUNTY FL
BK: 3234 PG: 1725 Page 1 of 19 a292019 2:02 PM
ORDINANCE NO. 0-19-04
AN ORDINANCE OF THE CITY OF SEBASTIAN, FLORIDA,
PROVIDING FOR THE VOLUNTARY ANNEXATION FOR LAND
CONSISTING OF 1,118 ACRES, MORE OR LESS, LOCATED
SOUTH OF COUNTY ROAD 510 ROW, WEST OF LANDS
ADJACENT TO THE 74TH AVE ROW, NORTH OF 69TH STREET
ROW, AND EAST OF 82r'o AVE ROW; PROVIDING FOR THE
EXTENSION OF THE CORPORATE LIMITS AND BOUNDARIES
THEREOF; PROVIDING FOR INTERIM LAND USE AND
ZONING CLASSIFICATION; PROVIDING FOR SCRIVENER'S
ERRORS; PROVIDING FOR CONFLICT AND SEVERABILITY;
AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the owners of real property in unincorporated Indian River County,
contiguous to the existing corporate limits and boundaries of the City of Sebastian, and
being reasonably compact, petitions the governing body of the City of Sebastian to be
voluntarily annexed into the municipality; and
WHEREAS, the City Council of the City of Sebastian, Florida finds and
determines that the annexation of said parcel is in the best interest of the City,
NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF
THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, as follows:
Section 1. PROPERTY. The following described property now lying and
being in an unincorporated area of Indian River County, Florida, is hereby annexed into
the corporate limits of the City of Sebastian, Florida and the boundary lines of said City
are hereby redefined to include said real property as shown on "Exhibit 1" containing
1,118 acres, more or less.
Section 2. INTERIM LAND USE AND ZONING CLASSIFICATION.
The interim land use and zoning classifications for this property shall be consistent with
the provisions of state law.
Section 3. FILING. A certified copy of this ordinance shall be filed with
the Clerk of the Circuit Court, as well as the Chairman of the County Commission of
Indian River County, Florida, and with the Florida Department of State within seven days
of adoption.
Section 4. NOTICE. That notice of this ordinance has been posted in
accordance with Section 171.044, Florida Statutes.
Section 5. SCRIVENER'S ERRORS. Sections of this ordinance may be
renumbered or re -lettered and corrections of typographical errors which do not affect the
intent may be authorized by the City Manager, or the City Manager's designee, without
need of public hearing, by filing a corrected or re -codified copy of same with the City
Clerk.
Section 6. CONFLICT. All ordinances or parts of ordinances in conflict
herewith are hereby repealed.
Section 7. SEVERABILITY. In the event a court of competent jurisdiction
shall hold or determine that any part of this Ordinance is invalid, unenforceable or
unconstitutional, the remainder of the Ordinance shall be invalidated and it shall be
presumed that the City Council of the City of Sebastian did not intend to enact this
Ordinance without such invalid or unconstitutional provisions.
Section 8. EFFECTIVE DATE. Following its adoption and recordation,
including the Annexation Agreement attached hereto as Exhibit 2, executed by all
parties, this Ordinance shall become effective.
The foregoing Ordinance was moved for adoption by Councilmember
Hill The motion was seconded by Councilmember
Iovino and, upon being put to a vote, the vote was as follows:
Mayor Jim Hill ave
Vice Mayor Linda Kinchen aye
Councilmember Ed Dodd aye
Councilmember Albert Iovino aye
Councilmember Bob McPartlan ave
The Mayor thereupon declared this Ordinance duly passed and adopted this 28" day of
August, 2019.
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PROPOSED PROPERTY ANNEXATION
SECTION 1, TOWNSHIP 32 SOUTH, RANGE 38 EAST AND PART OF SECTION 36, TOWNSHIP 31 SOUTH, RANGE 38 EAST,
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DESCRIPTION
SECTION 1, TOWNSHIP 32 SOUTH, RANGE 38 EAST
APART OF SECTION 36. TOWNSHIP 31 SOUTH, RANGE 38 EAST
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INDIAN RIVER COUNTY, FLORIDA
PROPOSED PROPERTY ANNEXATION
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Exhibit 1
DESCRIPTION OF PROPOSED PROPERTY ANNEXATION
SECTION 1, TOWNSHIP 32 SOUTH, RANGE 38 EAST AND PART OF SECTION 36, TOWNSHIP 31 SOUTH, RANGE 38 EAST,
INDIAN RIVER COUNTY, FLORIDA
DESCRIPTION OF PROPOSED LAND ANNEXATION
ALL THAT LAND LYING IN SECTION 1, TOWNSHIP 32 SOUTH,
RANGE 38 EAST AND PART OF SECTION 36, TOWNSHIP 31
SOUTH, RANGE 38 EAST, INDIAN RIVER COUNTY, FLORIDA,
BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE COMMON SECTION CORNER OF
SECTION 25, 26, 35 AND 36, TOWNSHIP 31 SOUTH, RANGE 38
EAST, INDIAN RIVER COUNTY, FLORIDA, MARKED BY A FOUND
20d NAIL WITH NO IDENTIFICATION RECORDED WITH THE
FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
CERTIFIED CORNER RECORD DOCKET NUMBER 063806, RUN
NORTH 89'56'13" EAST ALONG THE NORTH LINE OF SAID
SECTION 36, TOWNSHIP 31 SOUTH, RANGE 38 EAST A
DISTANCE OF 125.00 FEET; THENCE LEAVING SAID NORTH
SECTION LINE RUN SOUTH 00'04'07" WEST A DISTANCE OF
40.01 FEET TO THE POINT OF INTERSECTION OF THE SOUTH
RIGHT OF WAY LINE OF WABASSO ROAD / S.R. 510 / 85TH
STREET, RIGHT OF WAY MAP SECTION 88510-2601, AS
RECORDED IN OFFICIAL RECORDS BOOK 181, PAGE 593 AND
658 OF THE PUBLIC RECORDS OF INDIAN RIVER COUNTY,
FLORIDA AND THE EAST RIGHT OF WAY LINE OF THE
SEBASTIAN IMPROVEMENT DISTRICT LATERAL 'C' CANAL /
82nd/ AVENUE, 250.00 FEET WIDE RIGHT OF WAY AS
RECORDED IN DEED BOOK 32 , PAGE 177 OF THE PUBLIC
RECORDS OF INDIAN RIVER COUNTY, FLORIDA, SAID POINT
OF INTERSECTION BEING THE POINT OF BEGINNING OF THE
FOLLOWING DESCRIBED PROPERTY ANNEXATION;
FROM THE POINT OF BEGINNING RUN NORTH 89'56'13" EAST
ALONG THE AFORESAID SOUTH RIGHT OF WAY LINE OF
WABASSO ROAD / S.R. 510 / 85TH STREET, A DISTANCE OF
2435.37 FEET TO THE WEST RIGHT OF WAY LINE OF THE
SEBASTIAN IMPROVEMENT DISTRICT 'LATERAL 'L' CANAL-,
150.00 FEET WIDE RIGHT OF WAY AS RECORDED IN OFFICIAL
RECORDS BOOK 210, PAGE 300 OF THE PUBLIC RECORDS OF
INDIAN RIVER COUNTY, FLORIDA; THENCE RUN SOUTH
00'10'09" WEST ALONG SAID WEST RIGHT OF WAY LINE A
DISTANCE OF 1416.65 FEET TO THE WESTERLY EXTENSION
OF THE SOUTH RIGHT OF WAY LINE OF AFORESAID LATERAL
'L' CANAL 150.00 FEET WIDE RIGHT OF WAY; THENCE RUN
SOUTH 89*34*14' EAST ALONG SAID WESTERLY EXTENSION
AND SOUTH RIGHT OF WAY LINE A DISTANCE OF 1347.63 FEET
TO THE WEST RIGHT OF WAY LINE OF SAID LATERAL 'L'
CANAL 125.00 FEET WIDE RIGHT OF WAY; THENCE RUN
SOUTH 00'10'26" WEST ALONG THE WEST RIGHT OF WAY LINE
OF SAID LATERAL 'L' CANAL A DISTANCE OF 640.57 FEET TO
THE SOUTH RIGHT OF WAY LINE OF SAID LATERAL 'L' CANAL;
THENCE RUN SOUTH 89'10'01" EAST ALONG SAID SOUTH
RIGHT OF WAY LINE A DISTANCE OF 664.73 FEET TO THE
WEST RIGHT OF WAY LINE OF SAID LATERAL 'L' CANAL;
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THENCE RUN SOUTH 00'05'15' WEST ALONG SAID WEST
RIGHT OF WAY LINE A DISTANCE OF 1940.26 FEET TO THE
WESTERLY EXTENSION OF THE SOUTH RIGHT OF WAY LINE
OF THE SEBASTIAN IMPROVEMENT DISTRICT LATERAL'R-14E
CANAL' 100.00 FEET WIDE RIGHT OF WAY AS RECORDED IN
CHANCERY ORDER BOOK 9, PAGE 564 OF THE PUBLIC
RECORDS OF INDIAN RIVER COUNTY, FLORIDA; THENCE RUN
SOUTH 8944'16" EAST ALONG SAID WESTERLY EXTENSION
AND SOUTH RIGHT OF WAY OF LATERAL 'R-14E' CANAL A
DISTANCE OF 740.98 FEET TO THE COMMON RANGE LINE OF
RANGE 38 EAST AND RANGE 39 EAST, ALSO BEING THE EAST
LINE OF AFORESAID SECTION 36, TOWNSHIP 31 SOUTH,
RANGE 38 EAST; THENCE RUN SOUTH 00'11'28' WEST ALONG
SAID EAST LINE OF SECTION 36 AND RANGE LINE A DISTANCE
OF 1280.06 FEET TO THE SOUTHEAST CORNER OF SAID
SECTION 36 ALSO BEING THE SOUTHWEST CORNER OF
SECTION 31, TOWNSHIP 31 SOUTH, RANGE 39 EAST MARKED
BY A FOUND 4'x4" CONCRETE MONUMENT WITH NO
IDENTIFICATION RECORDED WITH THE FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION CERTIFIED
CORNER RECORD DOCKET NUMBER 078031; THENCE RUN
SOUTH 89'50'19" EAST ALONG THE SOUTH LINE OF SAID
SECTION 31 A DISTANCE OF 4.05 FEET TO THE NORTHWEST
CORNER OF SECTION 6, TOWNSHIP 32 SOUTH, RANGE 39
EAST, ALSO BEING THE NORTHEAST CORNER OF SECTION 1,
TOWNSHIP 32 SOUTH, RANGE 38 EAST MARKED BY A FOUND
4"A" CONCRETE MONUMENT WITH ALUMINUM DISK STAMPED
'CARTER ASSOCIATES, INC PRM LB 205' RECORDED WITH
THE FLORIDA DEPARTMENT OF ENVIRONMENTAL
PROTECTION CERTIFIED CORNER RECORD DOCKET NUMBER
078026, SAID DESCRIBED SECTION CORNERS COMPRISED AS
DOUBLE CORNERS EAST TO WEST ON THE COMMON
TOWNSHIP LINE OF TOWNSHIP 31 AND 32 SOUTH WITH THE
COMMON RANGE LINE OF RANGE 38 AND 39 EAST; THENCE
RUN SOUTH 00'13'25" WEST ALONG SAID COMMON RANGE
LINE, AND EAST LINE OF AFORESAID SECTION 1, TOWNSHIP
32 SOUTH, RANGE 38 EAST, ALSO BEING THE WEST LINE OF
THE INDIAN RIVER FARMS WATER CONTROL DISTRICT "DIKE /
LEVEE" 100.DO FEET WIDE RIGHT OF WAY AS RECORDED IN
DEED BOOK 48, PAGE 23 OF THE PUBLIC RECORDS OF ST.
LUCIE COUNTY, FLORIDA, A DISTANCE OF 2657.45 FEET TO
THE EAST QUARTER CORNER OF SAID SECTION 1; THENCE
RUN SOUTH 00'01'45" WEST ALONG SAID EAST LINE OF
SECTION 1 AND RANGE LINE A DISTANCE OF 2590.99 FEET TO
THE INTERSECTION OF THE NORTH RIGHT OF WAY LINE OF
AFORESAID LATERAL'L' CANAL, 125.00 FEET WIDE RIGHT OF
WAY AS RECORDED IN OFFICIAL RECORDS BOOK 210, PAGE
300, SAID INTERSECTION POINT BEING NORTH 00'01'45- EAST
62.50 FEET FROM THE FOUND 4'x4" CONCRETE MONUMENT
WITH DISK STAMPED "RLS 1192" MARKING THE COMMON
SECTION CORNER OF SECTIONS i AND 12, TOWNSHIP 32
SOUTH, RANGE 38 EAST AND SECTIONS 6 AND 7 OF
CARTER ASSOCIATES, INC.
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TOWNSHIP 32 SOUTH, RANGE 39 EAST, RECORDED WITH THE
FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
CERTIFIED CORNER RECORD DOCKET NUMBER 063825:
THENCE RUN SOUTH 89'53'29" WEST ALONG SAID NORTH
RIGHT OF WAY LINE A DISTANCE OF 754.22 FEET TO THE
WEST RIGHT OF WAY LINE OF AFORESAID LATERAL V CANAL;
THENCE RUN SOUTH 00'0T44" WEST ALONG SAID WEST
RIGHT OF WAY LINE A DISTANCE OF 17.50 FEET TO THE
NORTH RIGHT OF WAY LINE OF THAT CERTAIN ROAD RIGHT
OF WAY DEED RECORDED IN OFFICIAL RECORDS BOOK 220,
PAGE 469 OF THE PUBLIC RECORDS OF INDIAN RIVER
COUNTY, FLORIDA; THENCE RUN ALONG SAID NORTH RIGHT
OF WAY LINE THE FOLLOWING COURSES: SOUTH 89'5329"
WEST A DISTANCE OF 275.00 FEET; THENCE RUN SOUTH
00'07'44' WEST A DISTANCE OF 10.00 FEET; THENCE RUN
SOUTH 89'5329" WEST A DISTANCE OF 300.00 FEET; THENCE
RUN SOUTH 00'OT44" WEST A DISTANCE OF 5.00 FEET;
THENCE RUN SOUTH 89'5329" WEST A DISTANCE OF 100.00
FEET; THENCE RUN SOUTH 00'0744' WEST A DISTANCE OF
5,00 FEET; THENCE RUN SOUTH 89'5T29" WEST A DISTANCE
OF 3768.00 FEET TO THE AFORESAID EAST RIGHT OF WAY
LINE OF THE SEBASTIAN IMPROVEMENT DISTRICT LATERAL
'C' CANAL 225.00 FEET WIDE RIGHT OF WAY AS RECORDED IN
DEED BOOK 32, PAGE 177; THENCE RUN NORTH 00'07'03"
EAST ALONG SAID EAST RIGHT OF WAY LINE A DISTANCE OF
263727 FEET TO THE INTERSECTION OF THE EAST / WEST
QUARTER SECTION LINE OF AFORESAID SECTION 1; THENCE
CONTINUE NORTH 00'07'03' EAST ALONG SAID EAST RIGHT
OF WAY LINE A DISTANCE OF 2679.25 FEET TO THE
INTERSECTION WITH THE NORTH LINE OF SAID SECTION 1
AND SOUTH LINE OF AFORESAID SECTION 36, TOWNSHIP 31
SOUTH, RANGE 38 EAST, ALSO BEING THE COMMON
TOWNSHIP LINE OF TOWNSHIP 31 AND 32 SOUTH; THENCE
CONTINUE ON SAID EAST RIGHT OF WAY LINE RUN NORTH
00'04'07' EAST A DISTANCE OF 1279.32 FEET TO THE
INTERSECTION WITH THE SOUTH RIGHT OF WAY LINE OF THE
SEBASTIAN IMPROVEMENT DISTRICT LATERAL 'C-3E CANAL
100.00 FEET WIDE RIGHT OF WAY AS RECORDED IN DEED
BOOK 32, PAGE 177, PUBLIC RECORDS OF INDIAN RIVER
COUNTY, FLORIDA; THENCE RUN SOUTH 89'50'51' EAST
ALONG SAID SOUTH RIGHT OF WAY LINE A DISTANCE OF 12.51
FEET; THENCE CONTINUE NORTH 00'04'0T' EAST ALONG
AFORESAID EAST RIGHT OF WAY LINE OF SAID LATERAL 'C'
CANAL, NOW BEING 250.00 FEET WIDE RIGHT OF WAY, A
DISTANCE OF 3997.98 FEET TO THE AFORESAID SOUTH RIGHT
OF WAY LINE OF WABASSO ROAD / C.R.510 / 85TH/ STREET
AND POINT OF BEGINNING.
THE ABOVE DESCRIBED PROPOSED LAND ANNEXATION
CONTAINING 48,689,617.86 S.F. OR 1117.76 ACRES (INCLUDES
CANAL RIGHTS OF WAYS)
THIS DESCRIPTION IS NOT A BOUNDARY SURVEY
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DESCRIPTION
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SECTION 1, TOWNSHIP 32 SOUTH, RANGE 3S EAST
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A PART OF SECTION 36, TOWNSHIP M SOUTH , RANGE 38 EAST
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INDIAN RIVER COUNTY, FIORIDA
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PROPOSED PROPERTY ANNEXATION
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AFTER RECORDING RETURN TO:
Jeanette Williams, CMC
City Clerk
City of Sebastian
1225 Main Street
Sebastian, Florida 32958
ANNEXATION AGREEMENT
THIS ANNEXATION AGREEMENT (the "Agreement") is made and entered into this
29t}r day of August 2019, by and between the CITY OF SEBASTIAN, a Florida municipal
corporation, whose mailing address is 1225 Main Street, Sebastian, Florida 32958 (the "City")
and, GRAVES BROTHERS COMPANY, whose mailing address is 2770 Indian River Blvd., Suite
201, Vero Beach, Florida 32960 (the "Owner").
WHEREAS, the City is a Florida municipal corporation located within Indian River
County, Florida; and
WHEREAS, the Owner listed herein is the fee simple title holder to certain real property
currently located within the unincorporated area of Indian River County; and
WHEREAS, the real property at issue is approximately 1,118 acres, which is reasonably
compact, is contiguous to the municipal boundary of the City, will not result in the creation of
enclaves, and is more particularly described in Exhibit 1, attached hereto and hereinafter
referred to as "property'; and
WHEREAS, the Owner desires to annex the property described in Exhibit 1 into the
municipal boundaries of the City; and
WHEREAS, the Owner will initially maintain the agriculture use of the property, but
desires to eventually develop the property for other certain uses as provided herein; and
WHEREAS, the Owner has applied to the City to change the Comprehensive Plan
Future Land Use Map on the property to facilitate the development of the property in the
future; and
Exhibit2 Too Ordinance No. 0-19A4
ANNEXATION AGREEMENT
Page 1 of 13
WHEREAS, contingent upon approval of the annexation petition, Owner has applied to
the City to assign a Comprehensive Plan Future Land Use Map as set forth in Ordinance No. 0-
19-05, which is incorporated herein by reference; and
WHEREAS, the Parties desire to enter into this Agreement in order to memorialize their
understanding and agreements with respect to the annexation of the property, and with respect
to the future development and use of the property; and
WHEREAS, upon compliance with the obligations of this Agreement, the development
of the property will be consistent with the City's Comprehensive Plan and land development
regulations; and
WHEREAS, the City has found and determined that the City's interest will be
best served by annexing the property into its municipal boundaries and by entering into
this Agreement to ensure that development of the property is in accordance with the
City's Comprehensive Plan (CP) and Land Development Code (LDC); and
WHEREAS, the
property is
particularly
suited for inclusion in to
the City due
to its proximity to
existing traffic corridors and transportation
systems, and
annexation will yield
significant
benefits to
the City in the form
of measured
development, increased employment opportunities and employment base, an increased tax
base, and permanent conservation and preservation of natural ecosystems; and
WHEREAS, the City is entering into this Agreement pursuant to the authority of the
Florida Constitution (including Article VIII, Section 2(b) and (c) thereof), the general powers
conferred upon municipalities by statute and otherwise (including Chapter 166, Florida
Statutes), and the City's Charter; and
WHEREAS, all the requirements set forth in Section 171.044, Florida Statutes, and as
otherwise set forth in Florida law and the City's Codes and Ordinances, for the voluntary
Exhibit 2 To Ordinance No. O-19-04
ANNEXATION AGREEMENT
Page 2 of 13
annexation of real property have been fulfilled, or will be fulfilled through compliance with this
Agreement.
NOW THEREFORE, in consideration of the exchange of mutual promises set forth
herein, and other good and valuable consideration, the receipt and sufficient of which is hereby
acknowledged, the City and the Owner agree as follows:
1. Recitals. The forgoing recitations are true and correct, and are incorporated
herein by reference; and all exhibits to this Agreement as hereby deemed to be a part hereof.
2. Owners. The Owner represents that they hold fee simple title to the real
property and have lawful authority to petition for the voluntary annexation of the property set
forth herein.
3. Annexation.
(a) The City hereby acknowledges that Owner has submitted a petition
requesting the voluntary annexation of the real property by the City in accordance with Section
171.044, Florida Statutes, and the City agrees to consider and act upon the Annexation Petition.
The Owner commits and agrees that while the Annexation Petition is voluntary, Owner is
prohibited from withdrawing its petition and that to do so would result in a breach of this
Agreement if annexation of the property is approved at second reading of the annexation
ordinance on August 28, 2019, or such other date for second reading as established by the
Sebastian City Council, but not later than August 28, 2020. The Owner and the City agree that
the annexation ordinance shall be properly noticed in accordance with Section 171.044(2),
Florida Statutes, and scheduled for second reading on August 28, 2019.
(b) In the event the Department of Economic Opportunity fails to support
approval of the Future land Use for the property, or the City fails to adopt the future land use
set forth in this Agreement, the Owner reserves the right to request the City to take all necessary
Exhibit 2 To Ordinance No. 0-19-M
ANNEXATION AGREEMENT
Page 3 of 13
steps to promptly and expeditiously de -annex the property; and the City agrees it will take
those steps necessary to fulfill this request to the extent legally permissible. Upon de -annexation
(contraction) this Agreement shall terminate.
4. Development of the Annexed Property.
(a) Development Plans for property. The City finds and agrees that residential
uses of varying densities, commercial uses, office uses, warehouse/industrial uses, schools,
institutional uses, civic uses, and utility uses are appropriate uses of the property and that such
uses will benefit the City's residents.
(b) Owner recognizes that this Agreement does not authorize approval of
any specific development plan or proposal.
(c) Planned Unit Development. The parties agree that any future rezoning shall
be consistent with the City's Comprehensive Plan, as existing or as amended, and shall be
accomplished only through a Planned Unit Development (PUD) or a Master Planned Unit
Development (MPUD).
(d) The Owners agree to make provision for a mixed -use "Town Center" area
and housing types shall be mixed to meet various income levels and lifestyle choices as part of
the development in accordance with the PUD as approved by the City.
(e) Extractions. The Owner agrees that, the allocation and donation of
institutional lands necessary for governmental services such as post offices, public safety,
schools etc., and the dedication of ROW to the appropriate entity to promote an interconnected,
extended and improved grid road system, along with a well -planned transportation system of
roads and streets throughout the development, in coordination with Indian River County, to
specifically include 81st Street, 77th Street, and 73rd Street, as well as 74th Avenue; shall be
Exhibit 2 To Ordinance No. 0-19-04
ANNEXATION AGREEMENT
Page 4 of 13
identified by concurrency analysis in accordance with the City of Sebastian land development
codes and ordinances, at the time of development. .
(f) Conservation. The Owner agrees that, dedication of conservation lands shall
be made to the appropriate entity at the time of development to include any natural areas of
significant importance, and the provision of greenway trails to promote a system of connectivity
and access consistent with the City's Comprehensive Plan and land development codes at the
time of rezoning and development.
(g) The Owner agrees that, the allocation of parks and recreational lands
consistent with the City's Comprehensive Plan and land development codes specifically: a
minimum of 2 acres/1000 residents of publicly accessible recreation lands, and a minimum of 2
acres/100o residents of other recreational lands, will be required at the time of development.
(h) The Owner agrees and will provide buffers adjacent to low density areas
outside of the PUD Overlay to include increased greenspace along the site's south property line
and the part of the east property line south of Liberty Park TND.
(i) As a condition of the PUD process the open space requirements shall be as
defined in Section 54 of the City's Land Development Code.
5. Transportation: At time of development, the Owner or its successor shall work
together with the City to establish a satisfactory, well planned roadway network.
Transportation concurrency shall be satisfied at the time required by constructing
improvements or execution of a mutually agreeable Proportionate Fair Share Agreement; or a
mutually agreeable Developer's Agreement; or a mutually agreeable Impact Fee Assessment.
6. Wetlands: The City acknowledges and agrees that at the present time, the
applicable rules and regulations of the St. John's River Water Management District govern all
wetland jurisdictional determinations and any related wetlands mitigation, and that any
Exhibit 2 To Ordinance No. 0-19-04
ANNEXATION AGREEMENT
Page 5 of 13
wetland permit issued by the St. John's River Water Management District for any portion of the
property shall satisfy all City wetland permitting requirements for the portion of the property
subject to such permit.
7. Improvements: Neither the City nor the County shall not be required or
obligated in any way to construct or maintain or participate in the construction or maintenance
of any improvements (except for maintenance of improvements dedicated to and accepted by
the City at its sole discretion). The Owner, its grantees, successors or assigns in interest, or an
association, as applicable, shall be responsible for the maintenance of all improvements not
dedicated to and accepted by the City.
8. land Use. The future land use of the property is set forth in Ordinance No.
0-19-05, which is incorporated by reference as though fully set forth herein.
9. Utilities.
(a) Pursuant to the Interlocal Agreement between Indian River County and the
City, water and wastewater utilities will be provided exclusively by Indian River County.
Drainage and Stormwater shall be handled by the Sebastian River Improvement District If
either the County or the SKID fails to comply with their lawful obligation to provide such
services, the Owner will be free to seek other alternatives. To the extent not funded by others,
the Owner shall be responsible for funding design, permitting and construction of the
Infrastructure in order to serve the needs of the future development of the property at full
build -out and in accordance with the level of service established by the City's Comprehensive
Plan, as amended from time to time. This Infrastructure shall be built to the City and permitting
agencies' reasonable and customary standards. It is recognized by the Parties that said
Infrastructure may be constructed in phases commensurate with the creation of demand by
development.
Exhibit 2 To Ordinance No. 0-19-04
ANNEXATION AGREEMENT
Page 6 of 13
(b) As a condition of future developments, sufficient land area shall be allocated
for infrastructure required to support the development and mandate hook-up to central potable
water and wastewater systems for all new developments. These services shall be provided by
the County or alternative services as set forth herein; however, no septic systems would be
allowed in accordance with City policy and land development codes.
10. No Waiver of Police Power. As provided above and otherwise herein, the
parties recognize and agree that certain provisions of this Agreement will require the City
and/or its boards, departments or agencies, acting in their governmental capacity, to consider
certain changes in the City's Comprehensive Plan, zoning ordinances or other applicable City
codes, plans or regulations, as well as to consider other governmental actions as set forth in this
Agreement. All such considerations and actions shall be undertaken in accordance with
established requirements of state statute and City ordinances, including applicable notice and
hearing requirements, in the exercise of the City's jurisdiction under the police power. Nothing
in this Agreement is intended to limit or restrict the powers and responsibilities of the City in
acting on applications for comprehensive plan changes and applications for other development.
The parties further recognize and agree that these proceedings shall be conducted openly, fully,
freely and fairly in full accordance with law and with both procedural and substantive due
process to be accorded the applicant and any member of the public.
11. Covenants Runnine with the Land and Successors and Assiens. The
obligations imposed and entitlements created pursuant to this Agreement shall run with and
bind the property as covenants running with the land and this Agreement shall be binding
upon and enforceable by and against the Parties hereto, their personal representatives, heirs,
successors, grantees and assigns.
12. The City acknowledges its intention, in good faith, to fulfill the following,.
Exhibit 2 To Ordinance No. 0.19-04
ANNEXATION AGREEMENT
Page 7 of 13
(a) Coordinate the pro -rats funding of the interchange, bridge crossings, or
roadways with adjacent property owners/developers when such other properties are benefited
by these improvements.
(b) Implement a "cost -recovery" agreement when the Owner funds more than
its pro-rata share of an improvement.
(c) Work with the Owner to secure appropriate impact fee credits based upon
fair share apportionment payments and/or actual construction of improvements.
(d) Review and process any permit applications or other requests for approval
submitted to the City to ensure that development within the property proceeds in a timely
manner. The City further agrees to assist during the review processes of any other
governmental approvals and permits for the property.
13. General Terms:
(a) The terms "contribute", "dedicate", "dedication", "convey", "conveying", or
"conveyance" as used in this Agreement relating to a municipal or governmental trarisfer, shall
mean to transfer ownership to the City or other governmental body, without any cost to or
payment by the City or other governmental body, such dedication or conveyance shall be a gift
by the Owner, without any compensation.
(b) Preparation of this Agreement has been a joint effort of the parties and the
resulting document shall not, solely as a matter of judicial construction, be construed more
severely against one of the parties than the other.
(c) Owner, upon execution of this Agreement, shall pay to the City the cost of
recording this Agreement in Indian River County, Florida.
(d) This Annexation is subject to various provisions contained in Chapter 171
Florida Statutes, Municipal Annexation or Contraction. A portion of the boundary of the
Exhibit 2 To Ordinance No. 0-19-04
ANNEXATION AGREEMENT
Page 8 of 13
property is contiguous to the City. "Contiguous" is defined in Section 171.031(11) Florida
Statute, to mean "that a substantial part of a boundary of the territory sought to be annexed by a
municipality is coterminous with a part of the boundary of the municipality." Should there be
any legal challenge to the annexation of the property, whether based on contiguity, enclaves or
any other theory, the Owner agrees to assume all risk associated with the challenge. The Owner
further agrees to indemnify and hold harmless the City from all claims, suits and judgments in
any way arising out of or relating to the annexation of the property. This indemnity and hold
harmless shall extend to all costs, fees and expenses, including, but not limited to, reasonable
attorneys' fees and expert witness fees incurred by the City in the investigation or defense of
any challenge to the annexation whatsoever, including but not limited to Chapter 164, Chapter
171 and any legal challenge filed in Court, including all levels of court and any attorneys' fees
that the City may be ordered to pay pursuant to Section 171.081 Florida Statutes (collectively a
"Third Party Claim"). Promptly after receipt of notice of the making or commencement by any
thud party of any claim, action, lawsuit, or proceeding as to which indemnification may be
sought (a "Third Party Claim"), the City shall notify Owner. Failure to do so shall not relieve
Owner from any liability that it may have under this section unless Owner is prejudiced by the
lack of such notice; provided that, in such case Owner shall not be responsible for that portion
of the liability caused by the prejudice resulting from the lack of notice. if any such Third Party
Claim is brought against the City, Owner shall be entitled to participate and, to the extent they
may elect by written notice delivered promptly to the City after receiving notice from the City,
to assume the defense with counsel reasonably satisfactory to the City. The parties agree to
cooperate fully in connection with the defense, negotiation, or settlement of any such legal
proceeding, claim, or demand. The City shall have the right to employ counsel in any such case,
with counsel reasonably acceptable to the Owner, and the fees and expenses of this counsel
Exhibit 2 To Ordinance No. 0-19-04
ANNEXATION AGREEMENT
Page 9 of 13
shall be at the expense of the City, subject to reimbursement from Owner. In any of these
events, fees and expenses of the City's counsel shall be home by Owner. Owner may not settle
any Third Party Claim without the consent of the City. After any final judgment or award has
been rendered by a court, arbitration board, or administrative agency of competent jurisdiction
and the time in which to appeal from it has expired, a settlement has been consummated, or
Owner and the City arrive at a mutually binding agreement with respect to each separate
matter alleged to be indemnified by Owner, the City shall forward to Owner notice of any sums
due and owing by it with respect to the matter, and Owner immediately shall pay all of the
sums owing, by wire transfer or certified or bank cashier's check, to the City.
14. Attomevs' Fees. Should any party to this Agreement bring an action against any
other party to enforce any provision of the Agreement, the prevailing party in said action shall
be entitled to recover its reasonable attorneys' fees and court costs in all trial and appellate
proceedings.
15. Notices. Every notice, demand, consent, approval or other document or
instrument required or permitted to be given to any party to this Agreement shall be in writing
and shall be delivered in person or sent by registered or certified mail, postage prepaid, return
receipt requested, to the following address (or such other address as any party may designate
from time to time in writing).
For City: For Own".
Paul Carlisle, City Manager
Jeff E. Bass
1225 Main Street
President
Sebastian, Florida 32958
Graves Brothers Company
with a copy to:
2770 Indian River Blvd., Suite 201
Vero Beach, Florida 32960
City Attorney
with a copy to:
1225 Main Street
Sebastian, Florida 32958
Registered Agent on file.
Exhibit 2 To Ordinance No.0-19-M
ANNEXATION AGREEMENT
Page 10 of 13
16. Effective Date and Duration. This Agreement shall become effective upon
execution by both parties.
17. Miscellaneous.
(a) Entire Agreement. This Agreement contains and sets forth all the promises,
covenants, agreements, conditions and understandings between the Parties with respect to the
subject matter of this Agreement.
(b) Terms and Words. All terms and words used in this Agreement regardless of
the number and gender in which used, shall be deemed to include any other gender or number
as the context or the use thereof may require.
(c) Severability. If any provisions of this Agreement are held to be invalid, void
or unenforceable, the remaining provisions of this Agreement shall not be affected or impaired
and each remaining provision shall remain in full force and effect. In the event that any term or
provision of this Agreement is determined by appropriate judicial authorities to be illegal void
or otherwise invalid, said. provision shall be given its nearest legal meaning or be construed as
deleted as such authority determines and the remainder of this Agreement shall be construed to
be in full force and effect.
(d) Headings. Captions and paragraph headings contained in this Agreement
are for convenience and reference only and in no way define, describe, extend or limit the scope
or intent of this Agreement, nor the intent of any provision hereof.
(e) Governing Law. This Agreement shall be construed and interpreted
according to the laws of the State of Florida and venue with respect to any litigation between
the Parties related to this Agreement shall be Indian River County. Florida.
(f) Permits. Conditions. Terms. or Restrictions. The failure of this Agreement to
address a particular permit, condition, term, or restriction existing at the time of execution of
Exhibit 2 To Ordinance No. 0-19-04
ANNEXATION AGREEMENT
Page 11 of 13
this Agreement shall not relieve Owner of the necessity of complying with the law governing
said permitting requirement, condition, term, or restriction.
(g) Amendments. This Agreement shall not be changed, modified or amended
except by an instrument in writing and executed by the parties owning the affected portion of
the property with the same formality and or equal dignity herewith.
(h) Recording. This Agreement shall be recorded by the City, at Owner's
expense, in the Official Records of Indian River County, Florida.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
day and year first above written.
ATTEST:
�n� lMMc/- l_�rk
anette Williams, ,01 Ry Clerk
STATE OF FLORIDA
COUNTY OF INDIAN RIVER
CITY OF SEBASTIAN, FLORIDA
1225 Main Street
Sebastian, FL 32958
Jim Iit , ayor
As proved by theagYFon•dse
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(SEAL)
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2019
The foregoing instrument was acknowledge before me this a 4 day of , u.51 2019, by Jim Hill,
Mayor of the City of Sebastian, Florida who is personally kno to me.
SEAL ra �
N0TARY PC /
Print Name:[JB RrN-t-�N& 6-7E5-�A
Commission No. C!,'grl I W5
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Exhibit 2 To Ordinance No. 0-19-04
ANNEXATION AGREEMENT
Page 12 of 13
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STATE OF FLORIDA
COUNTY OF INDIAN RIVER
OWNER:
GRAVES BROTHERS COMPANY
By:
Jeff Bass, President
The foregoing instrument was acknowledge before me this a 4 "day of sa , 2019, by Jeff Bass,
President of the Graves Brothers Company who is personally known to me.
SEAL' r• \ .�
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Commission No, FF 0165�11-F
My Commission Expires: MPr -26.?_0-2-0
Exhibit 2 To Ordinance No. 0-19-04
ANNEXATION AGREEMENT
Page 13 of 13