HomeMy WebLinkAbout2021 Settlement Agreement - Easement & Drainage RightsIN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT,
IN AND FOR INDIAN RIVER COUNTY, FLORIDA
CITY OF SEBASTIAN,
CASE NO: 312019CA000712
JUDGE: JANET C. CROOM
Plaintiff,
VS.
SEMBLER & SEMBLER, INC.
Defendant
SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is made and entered into as of the date all
signatories below have executed the Agreement ("Effective Date") by and between Plaintiff,
City of Sebastian ("City") and Defendant, Sembler & Sembler, Inc., ("Sembler'. City and
Sembler are collectively referred to herein as "the Parties".
Recitals:
This Agreement is entered into with reference to the following facts and recitals which
are true to the best of the Parties' knowledge and belief, and are made part of this Agreement:
WHEREAS Sembler owns real property located in Indian River County, Florida more
specifically described in Exhibit A attached hereto ("Sembler Property"); and
WHEREAS City owns real property located in Indian River County, Florida more
specifically described in Exhibit B attached hereto ("City Property', said property being
adjacent to the Sembler Property to the north; and
WHEREAS City filed the instant case seeking to establish prescriptive easements and
drainage rights on the Sembler Property allegedly based upon previously existing drainage
ditches along the common property lines; and
WHEREAS the Parties have a mutual interest in avoiding unnecessary litigation; and
WHEREAS the parties have come to an agreement for settlement of all issues in this
case.
NOW THEREFORE, in consideration of the mutual covenants contained herein, for ten
(10) dollars and other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties covenant and agree as follows:
Terms and Conditions:
1. Recitals. The foregoing recitals are acknowledged by the Parties as being true and
correct and are incorporated herein by this reference.
2. Court Annroval. This Agreement is contingent upon Court approval and reservation
ofjurisdiction for the enforcement thereof.
3. Easement for Drainaee Imorovements—West Tract. Sembler agrees to convey to City
an Exclusive Easement (hereinafter "Easement") for ingress/egress to and from its existing
underground drainage lines for perpetual maintenance and the placement and maintenance of
future underground drainage structures for the same purposes, as and if required. The existing
drainage improvements are currently located along the north line of the Sembler Property lying
west of Indian River Drive to the extent that such drainage lines encroach on the Sembler
Property. Within thirty (30) days from the Effective Date, City shall, at its sole expense, deliver
to Sembler a survey reflecting the location of and legal descriptions for the Easement. The
Easement description shall generally trace the encroaching lines, but is more specifically set
forth in Exhibit C. The width of said Easement shall provide reasonable ingress/egress to the
drainage improvements but shall not extend more than three (3) feet south of the actual location
of the drainage improvements. The Easement legal descriptions shall be attached to the form of
Drainage Easement attached hereto as Exhibit C.
4. Easement for Pollution Control Baffle Box —East Tract. The Easement provided by
Sembler shall include an Easement for ingress/egress to, and an Easement for the maintenance of
the existing Pollution Control Baffle Box to the extent that it encroaches on the Sembler Property
lying east of Indian River Drive ("Box Easement"). This Box easement shall also be an
exclusive easement in favor of the City. The survey and legal description for the Box Easement
shall be provided by the City's surveyor at the City's expense. The Box Easement description
shall generally trace the configuration of the encroaching Baffle Box and allow an additional
three (3) feet for maintenance/clean-out access. The Box Easement description shall be attached
to the Drainage Easement attached hereto as Exhibit C. Under no circumstances shall the City
permit City personnel or City contractors/agents, to drive upon, enter or otherwise use the
Sembler Property (East and West Tracts) outside of the Easement or Box Easements boundaries
without Sembler's permission.
5. Sembler's Use of Drainage improvements. Sembler is entitled to tie in and utilize the
City's drainage improvements, as approved and permitted by St. Johns River Water Management
District, at Sembler's expense, to serve the Sembler's Property including the Baffle Box located
east of Indian River Drive. Also, Sembler, at Sembler's expense, shall be entitled to re -install
the stormwater collection box and any other drainage improvements on the East Tract previously
removed by the City as described in Paragraph 12 of the Complaint. However, Sembler agrees
that the City's use of Easement and Box Easement conveyed to the City above shall not in any
way be impaired by Sembler's use or re -installation of these Drainage Improvements and
apparatus.
6. City to Ouit Claim Interests. City shall execute the Quit Claim Deed attached hereto
as Exhibit D conveying and relinquishing all claims in interests in the Sembler Property.
Following Court approval of this Agreement the Quit Claim Deed and Drainage Easement (with
legal descriptions attached) shall be recorded in the public records of Indian River County in that
order.
7. Lift Statinn Connection. City agrees to permit Sembler to connect, at Sembler's
expense, to the City's sewer and lift station located on the City Property adjacent to the Sembler
Property east of Indian River Drive. When connection is desired, Sembler shall give City sixty
(60) days advance notice and will provide the City engineering plans depicting the location of
connecting lines. Also, Sembler agrees that, except for the use of capacity, the City's use of its
sewer and lift station shall not in any way be impaired by Sembler's use or connection to its
sewer and lift station. The following provisions shall apply:
(a) Flow to the lift station from future development on the Sembler's Property is
estimated to be 1200 gallons per day (gpd). City shall, at all times, maintain exces lmserve
capacity sufficient to serve the Sembler Property of not less than 1200 gpd.
(b) Sembler shall submit to City a copy of such plans and specifications relating to
the connection as may be required by governmental agencies for permitting purposes.
(c) City, with the joinder of Sembler, if required, at its expense, shall promptly apply
for and diligently pursue the issuance any required permits for the connection and required
modifications of any permits associated with the lift station including, without limitation, the
Indian River County Connection Permit and FDEP Wastewater Connection Permit. Sembler
shall pay the normal and current mpact/permit/connectionlreview fees charged by City or
County associated with Sembler's project but no such fees shall be charged by the City which
pertains specifically to the connection to the lift station.
(d) Following issuance of any required permits and any required modification of
existing permits, Sembler shall, at Sembler's expense, install the lines and other facilities
necessary to connect improvements on the Sembler Property to the lift station. Sembler is
granted temporary access to the City Property for this purpose if access is necessary in order to
connect. However, Sembler must provide the City with 60 days advance notice, City will pre -
inspect the lift/sewer stations for any damages before access is granted, Sembler will not
interfere with city operations, Sembler will notify the City when connection is completed to go
back out to inspect the lift(sewer stations. Any damage caused by Sembler as a result of the
connection work will be at his expense.
(e) All connection work shall be conducted by Florida licensed contractors in a good
and workmanlike manner and in substantial compliance with plans and specifications. Following
connection, City, shall have the sole responsibility for the maintenance, repair and replacement of
the lift station. Sembler shall have sole responsibility for the maintenance, repair and
replacement of the connecting lines located on the City Property and shall be permitted access to
the City Property for these purposes.
8. Indemnification. City agrees to indemnify and hold harmless Sembler, its agents,
employees, successors and assigns, from and against claims, damages, losses and expenses
including reasonable attorney's fees arising out of (i) any damage, accident, injury or other
similar occurrences in the Easement Area due to the willful or negligent acts of the City, it's
agents or contractors; or (ii) the use, maintenance or repair of the Easement Area by City, agents,
or contractors due to negligence or willful acts. However, there is no waiver of Sovereign
Immunity as to the claims of third parties. Nothing contained in this agreement shall be
construed as the City waiving its immunity pursuant to §768.28, et seq., Florida Statutes, or any
other sovereign or governmental immunity as to the claims of third parties.
9. Successors/Assiens. This Agreement shall be binding on and inure to the benefit -the
respective Parties' successors and assigns.
10. Constmction/Countemarts. The Parties shall be deemed to have cooperated in the
drafting and preparation of this Agreement. Hence, any construction to be made of this
Agreement shall not be construed against either Party. This Agreement may be executed in
counterparts and each executed counterpart shall be effective as the original. All faxed, entailed,
or electronic signatures affirming this Agreement constitute an original signature.
11. Enforcement. In the event it is necessary for either of the Parties to seek legal action
for the enforcement of this Agreement, venue shall be proper in Indian River County, County
Court, and this Agreement shall be governed by Florida law.
12. Waiver of Jury Trial. THE PARTIES HEREBY WANE THEIR RIGHTS TO
HAVE A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
BROUGHT BY EITHER PARTY AGAINST THE OTHER PERTAINING TO ANY
MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED
WITH THIS AGREEMENT.
13. Amendment. This Agreement shall not be altered, amended, or modified by oral
representation made before or after the execution of this Agreement All amendments or
changes of any kind must be in writing, executed by the Parties and approved by the Court.
NOTHING FURTHER
IN WITNESS WHEREOF, the Parties hereto have caused this document to be executed
on the last day set forth below.
CITY:
BY: /
/AUL
City Manager
Date: fY 13 .2021
SEMBLER:
CHARLES W. SEMBLER 11, President
Date: , 2021
Cnmmenamg at the intersection of the Township line between Township
30 Southand Township 31 South and the West right-of-way line of the 66
foot wide n ;tof way of Indian River Drive (also known as Old U.S.
Highway No. 1: Old State Road 5); thence, run South 2V22' East along
said :West right-of-way a distance of 270.40 feet to the South line of
Mddieton' s Subdivision, according to the Plat thereof, recorded in Plat
Book 2, Page 56, Public Records of Indian River County, Florida; thence
ran South 8800V East, a distance of 172.4 feet, more or less, to the mean
high water line of the Indian River, and the Point of Beginning; thence,
retracing the last mentioned course, not North 88°01' West a distance of
55322 feet to the East right -of --way of the New U.S. IEghway No. 1;
thencs, run South 36n6' Fast; along said right-of-way, a distanwbf 164.37
feet; thence ran South 88W East, a distance of 483.85 feet to the Wesf-
shore of the Indian River; thence ran Northwesterly, meandering said
West shore to the Point of Beginning. LESS AND EXCEPT the right-of-
way of Indian River Drive _
All lying and being in Section 6, Township 31 South, Range 39 East, Indian
River County, Florida
Page 4 of 4
HH: 2429 Po: 1534
EXHIBIT
N
Lots 1, 2 and 3. Block 2, Niddletcn'e Subdivieim of City of Sebastian,
according Cc the map or plat tharaaf as recorded in, Plat Rook 2, Page 56,
Poblie Records of Iniian River c0ounty, Florida.
Property Appraisers Account Roa: 217310, 217320 6 217330.
Prom a point of beginning at the intersection of the amth line of
Goverment Lot 2, of Section 31, Township 30 South, Range 39 Sast, Indian
River Came, Plorids, and the Weep High Hater Mark of the West bank of
Indian Rivet, ran Hut along said Bonn line of Bower®total Let 2 a
distance of 80.05 feet, more or lee., to the Hest right-o£-say of Old D.B.
Highway No. 1, said right-af-Hey being 66 fast In width; chosen tun North
2Sc22' Hut along said East right-of-way line a distance of 71.45 fear, then
rnn Want, parallel to the Smth line of Said Oowerseental Lot 2, a distance
Of 94J9 feet; tmect run North 10645' Let a distance of 132.03 feet to the
established bulkhead lira; thence ran south 25•22' Hest along .aid bulkhead
line a distaneo of 66.43 feet1 thence ran South 70645' Went a diatabse of
145.50 feet co the point of beginning m the Mean High Water Lim of Indian
River and oo the South line of said Government not 2;
property ApptalSezb Aeoomt No. 907110
AND ALSO all of that part of Lot 1, Block 1, MItozMN'W 6USOMSION OF CITE
or Sa0a1RTIAN, according to plat thereof ....tied in Plat Book 2, Page 56,
Public Records of Indian Rivet County. Florida lying Bast of Indian River
Drive fold O.S. MWy W1) and deacribed as follow:
From a point beginning at the Mean High Water line of the Wear shorn of the
Indian River an the Township Lim between ToNaship 30 math and Township 31
Soutb, run West along said Township lim (same being the North aim of said
Lot 11 SIOak 1, MIRDLR'DNl'S S➢SDMSION OF CITY OF SWRASTLAN, a distance of
SY.OS feet mare or lee., to the net right -of -say of Indian River Drive (old
O.B. Highway No. 3) said right -of -say being 66 feet in width; then rnn
South 25022' Nast along Said East right -a[ -way a distance of go feet; them.
rnn North 00000100• Watt a distance of 113 fact more or less to the Wean
High Water Lim of the Indian River, thence madder the Mean High Water Lim
in a Northwesterly direction to the point of beginning.
Property Appraiser's Account No. 217290
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