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ORDINANCE NO. 0-05-04
1887301
THIS DOCUMENT HAS BEEN RECORDED
IN THE PUBLIC RECORDS OF
INDIAN RIVER COUNTY FL
BK: 1935 PG:567. Page1 of 11
08/1'12001 at 04;11 PM.
JEFFREY K BARTON. CLERK OF
COURT
AN ORDINANCE OF THE CITY OF SEBASTIAN, FLORIDA, PROVIDING
FOR THE VOLUNTARY ANNEXATION OF LAND CONSISTING OF 25.55
ACRES, MORE OR LESS, LOCATED NEAR POWERLINE ROAD SOUTH
OF BARBER STREET KNOWN AS CROSS CREEK SUBDIVISION PHASE
II; PROVIDING FOR INTERIM LAND USE AND ZONING
CLASSIFICATION; PROVIDING FOR CONFLICT; PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, Henry A. Fischer, the owner of the parcel of property described
herein, has petitioned the City for voluntary annexation of said land and due public notice
of this action has been given; and
WHEREAS, the City Council finds and determines that the land proposed to be
annexed is contiguous to the City, will not result in the creation of any enclaves, and
constitutes a reasonably compact addition to the incorporated territory ofthe City; 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 City of Sebastian, Florida, and the boundary lines of said City are hereby redefined to
include said real property:
See attached Schedule "A"
containing 25.55 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 ofthis ordinance shall be filed with
the Clerk of the Circuit Court, 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. CONFLICT. All ordinances or parts of ordinances in conflict
herewith are hereby repealed.
Section 5. SEVERABILITY. 10 the event a court of competent jurisdiction
shall hold or determine that any part of this Ordinance is invalid, unenforceable or
unconstitutional, including the agreements contained as exhibits hereto, 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 provision.
Section 6. EFFECTIVE DATE. Following its adoption and recordation of
the DECLARATTON OF COVENANT AND RESTRICTION ON LAND attached hereto as
Exhibit "B", as well as the AGREEMENT BETWEEN THE CITY OF SEBASTIAN,
FLORIDA AND HENRY A. FISCHER, PROVIDING FOR THE ANNEXATTON OF
CERTAIN LAND INTO THE CITY OF SEBASTTAN contained in Exhibit "C", this
Ordinance shall become effective concurrently with Ordinance 0-05-05.
The foregoing Ordinance was moved for adoption by Councilmember
M 0 n i e r The motion was seconded by Councilmember
Burkeen and, upon being put to a vote, the vote was as follows:
Mayor Nathan McCollum a y e
Vice-Mayor Brian Burkeen aye
Council member Lisanne Monier a y e
Councilmember Aodrea Coy nay
Councilmember Sal Neglia nay
The Mayor thereupon declared this Ordinance duly passed and adopted this 24 t h day
oflud~ 2005.
August
ATTEST:
By:
----,
Approved as to form and legality for
reliance by the City of Sebastian:
I
Rich Stringer, City Atto ey
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ORDINANCE 0-05-U:4
SCHEDULE A
From the center of Section 30, Township 31 South, Range 39 East, Indian River County,
Florida, run South 89 degrees 32 minutes 01 seconds West along the North boundary of
the Southwest quarter of Section 30 a distance of 1163.97 feet to the POINT OF
BEGINNING; thence run South 00 degrees 09 minutes 57 seconds East a distance of
1336.24 feet to the quarter-quarter line; thence run South 89 degrees 50 minutes 01
seconds West along said quarter-quarter line a distance of 835.12 feet; thence run North
00 degrees 05 minutes 51 seconds West a distance of 1331.88 feet to the North boundary
of the Southwest quarter; thence run North 89 degrees 32 minutes 01 seconds East a
distance of 833.55 feet to the POINT OF BEGINNING.
LESS AND EXCEPT the Southern fifty (50) feet of the above-described property
pursuant to Chancery Order Book 9, Page 564, in the Public Records of Indian River
County, Florida
Exhibit "8"
Page 1 of2
DECLARATION OF COVENANT AND RESTRICTION ON LAND
THIS DECLARATION, made as of the date set forth below by Henry A.
Fischer, hereinafter referred to as "Declarant", governs the use of the following described
land lying and situate in Indian River County, Florida:
See attached Schedule "A"
containing 25.55 acres more or less, and provides that
WHEREAS, Declarant is the owner of the Land as described above, which
Declarant seeks to annex into the City of Sebastian, Florida,
NOW THEREFORE, Declarant hereby declares that all of said Land described
above shall be held, sold and conveyed subject to the following restrictions and
covenants, which are for the purpose of protecting the value and desirability of the Land,
and shall run with said land and be binding upon all parties having any right, title or
interest in the Land or any part thereof, their heirs, successors and assigns, and shall
accrue to the benefit of each owner thereof:
1.
For a period of ten years from the date of annexation of the Land,
Declarant, his heirs, successors or assigns, covenant that they shall
not apply to rezone the Land, or otherwise seek to change the use
of said Land, in any manner that results in a residential use density
greater than 3 units per acre.
2.
The City of Sebastian is designated as a third-party beneficiary of
these Covenants and Restrictions, and Declarant stipulates that said
third-party beneficiary shall be entitled to refuse any application or
proposal submitted in violation of these Declarations without
recourse by Declarant.
Exhibit "B"
Page 2 of2
IN WITNESS WHEREOF the undersigned, being the Declarant herein, has
caused these presents to be executed in its name by its duly authorized officer, as of this
81 dayof~2005,
Signed, sealed & delivered
In the presence of:
Henry A, Fischer,
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Printed Namf: I
C0~ ~ t.ov--,U
Printed name: "h.....,,, L. 0"'<"...,
Witness I
~JIPleujJ
Printed Name: E~t>/I1Z-{j :5 tk~tne4J
Witness
STATE OF FLORIDA
COUNTY OF INDIAN RIVER
I HEREBY CERTIFY that on this day, before me an officer duly authorized in
the Stale and in the County aforesaid to take acknowledgements, personally appeared
Henry A Fischer, Declarant, to me known to be the person described in the foregoing_
in.tmmp"t or who provided as identification, who
executed the foregoing instrument and acknowledged before me that he executed the
same, Said person was not under oath,
WITNESS my hand and official seal this t3 L day of
\-\;u~u.rt- ,2005,
Do-r'\i> ~_ ...J:.\rn.~
Notary ic
My Commission Expires:
"'~:;'}:f;:;;;, Doris 1 Grant
ff'i;,'''!::, MYCOMMISSION# 00101489 EXPIRES
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Exhibit C
Page 1 of 6
AGREEMENT BETWEEN THE CITY OF SEBASTIAN, FLORIDA
AND HENRY A. FISCHER,
PROVIDING FOR THE ANNEXATION OF CERTAIN LAND INTO
THE CITY OF SEBASTIAN
THIS AGREEMENT is made and entered into this 2 5 t h day of Au" u s t
,2005,
between the CITY OF SEBASTIAN, FLORIDA, a municipal corporation of the State of Florida,
("Sebastian" or "City") and HENRY A. FISCHER, ("Property Owner").
WITNESSETH:
WHEREAS, Property Owner is the owner of the real property (the "Land") located in
unincorporated Indian River County, Florida, which is legally described on Exhibit "A" attached
hereto and which is intended to be developed as a part of CROSS CREEK LAKE ESTATES ("Cross
Creek"); and
WHEREAS, the Land is contiguous to the municipal boundaries of Sebastian; and
WHEREAS, Sebastian desires to annex the Land into its municipal boundaries and said
annexation would not result in the creation of any enclaves, and the annexation of the Land will be
in the best interests of Sebastian and its residents; and
WHEREAS, Sebastian can provide the necessary general government, non-proprietary
services normally being provided to its residents, such as police protection, code enforcement,
building and zoning services to the Land as needed; and
WHEREAS, in order to provide a tangible benefit to the City, the Property Owner has agreed
to improve (pave) 70th Avenue (Power Line Road) at no cost to the City all the way to CR 510 in
accordance with the provisions of this Agreement; and
WHEREAS, City and Property Owner support the annexation ofthe Land into the City and
the City is willing to enter into this Agreement pursuant to the authority of the Florida Constitution
Exhibit C
Page 2 oLZ6
(including Article Vill, Section 2(b) and 2(c) thereof), the general powers conferred upon
municipalities by statute and otherwise (including Chapter 166 and Chapter 171, Florida Statutes)
and the City's Charter; and
WHEREAS, Sebastian and Property Owner desire to establish agreements relating to land
development, upon the annexation of the Land into the City of Sebastian.
NOW THEREFORE, the parties agree as follows:
I. The foregoing recitations are true and correct and are incorporated herein by
reference.
2. Sebastian and Property Owner are proceeding with the voluntary annexation of the
Land into the City of Sebastian. Upon the annexation of the Land into the City, this Agreement shall
govern the parties' rights and obligations regarding the Land as to the matters provided for herein.
3. The parties agree to promptly and diligently pursue an amendment to Sebastian's
Comprehensive Land Use Map to accommodate the land uses of Low Density Residential (LDR).
After the Map amendment has taken effect, Sebastian agrees to cooperate with Property Owner in
the rezoning to Single Family Residential (RS-lO) and issuance of other development orders
(permits) necessary for the development of the Land. It is contemplated by the parties that the full
development of the Land will be undertaken in phases, extend over a number of years and be part
of Cross Creek.
4. The access to the Land will be through Cross Creek, which is accessed by 70th Avenue
(power Line Road). When Cross Creek was annexed into the City, there was a request by the City
that Power Line Road be improved (paved) from Barber Street South to the Southern boundary line
of the Fischer property, which was one of two landowners developing Cross Creek. At that time,
2
Exhibit C
Page 3 of 6
the City agreed that it would not require Power Line Road to be paved South of the Southern
boundary line of the Fischer property.
5. In order to provide a benefit to the City in addition to the normal benefits that will
be derived by the annexation of the Land into the City, the Property Owner has agreed to improve
(pave) 70th Avenue (Power Line Road) from the Southern boundary line of the Fischer property (as
established in the Annexation Agreement with the City by Cross Creek Lake Estates, Inc. and Daniel
Spencer, Trustee dated June 2, 2004) to CR 510 (the "Improved Road"). This will result in Power
Line Road being paved from Barber Street to CR 510 at no expense to the City.
6. The Property Owner will build the Improved Road in a manner mutually acceptable
to Indian River County and the Property Owner, with the further understanding that (I) the
Improved Road will be located and designed such that the existing power transmission poles
belonging to Florida Power & Light located either adjacentto or within the 70th Avenue (Power Line
Road) right-of-way will not need to be relocated; (2) that Indian River County will contribute a
minimum of $200,000.00 toward the actual construction costs necessary to build the Improved
Road; (3) that Indian River County will pay for any needed additional right-of-way that cannot be
obtained by voluntary donation; and (4) that Indian River County will bear the responsibility and
cost for any eminent domain proceedings that may be necessary to acquire any needed right-of-way
that cannot be obtained voluntarily. Following acquisition of any needed right-of-way, the Property
Owner will commence construction of the Improved Road as soon as all necessary governmental
approvals and permits are received.
7. This Agreement incorporates and includes all prior negotiations, correspondence,
conversations, agreements or understandings applicable to the matters contained herein and the
3
Exhibit (;
Page 4 of 6
parties agree there are no commitments, agreements or understandings concerning the subject matter
of this Agreement that are not contained in or incorporated into this document.
8. All notices, demands, requests or replies provided for or permitted by this Agreement
shall be in writing and may be delivered by one of the following methods:
A. By personal delivery.
B. By deposit with United States Postal Service as certified orregistered mail, return
receipt requested, postage prepaid, to the addresses stated below. Notwithstanding these
requirements, there must be written acknowledgment of receipt of notice. For purposes of notice,
demand, request or payment, the address of the City shall be:
The City of Sebastian
1225 Main Street
Sebastian, Florida 32958
The address of the Property Owner shall be:
c/o Henry Andrew Fischer
Fischer & Sons, Inc.
P. O. Box 780068
Sebastian, FL 32978
with a copy to:
Warren W. Dill, Esq.
Dill & Evans, P.L.
1565 U.S. Highway 1
Sebastian, FL 32958
IN WITNESS WHEREOF, the parties hereto have set their hands and seals on the day first
above written. The effective date ofthis Agreement shall be the date on which this Agreement was
approved by the City of Sebastian.
CITY 0
anager
Officer: Ai Minner
;RO~
Henry A. Fischer
4
Exhibit C
Page 5 of 6
STATE OF FLORIDA
COUNTY OF INDIAN RIVER
otary Public
My Commission Expires:
My Commission Number is:
"SEAL"
.........., AN
.~\i!l'\"-t' N V. ROUSSEAU
[.('Ji." ,.'\ MY COMMISSION # DO 089531
'ii~"'l EXPIRES: March 18. 2006
"~'p.f.~~" SonOOdThruNot!IYPublicUnderwrlters
STATE OF FLORIDA
COUNTY OF INDIAN RIVER
The foregoing instrument was acknowledged before me this --U- day of ~4
2005, by Henry A. Fischer, who is oersonallv known to me or who has produced
as identification.
~,~ %,Jk--d~
Notary Public
My Comini.ssion Expires:
My Commission Number is:
"SEAL"
.A'.t\~:~ Doris J. Grant
,:f'J;:\~ MY COMMISSION # 00101489 EXPIRES
",:.~;.1 May 1 2006
~..l,i'p"';"fr.rtl WNDEDTHRlJTRO'fFAlN INSURANCf,INC.
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5
Exhibit C
Page 6 of 6
Exhibit "A"
From the center of Section 30, Township 31 South, Range 39 East, Indian River County, Florida,
run South 89 degrees 32 minutes 01 seconds West along the North boundary of the Southwest
quarter of Section 30 a distance of 1163.97 feet to the POlNT OF BEGlNNlNG; thence run South
00 degrees 09 minutes 57 seconds East a distance of 1336.24 feet to the quarter - quarter line; thence
run South 89 degrees 50 minutes 01 seconds West along said quarter - quarter line a distance of
835.12 feet; thence run North 00 degrees 05 minutes 51 seconds West a distance of 1331.88 feet to
the North boundary of the Southwest quarter; thence run North 89 degrees 32 minutes 01 seconds
East a distance of 833.55 feet to the POlNT OF BEGlNNlNG.
LESS AND EXCEPT the Southern fifty (50) feet of the above-described property pursuant to
Chancery Order Book 9, Page 564, in the Public Records of Indian River County, Florida.
Page 1 of 1
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CIlY OF
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HOME OF PELICAN ISLAND
CERTIFICATION
I, Sally A. Maio, MMC, City Clerk, do hereby certify that the attached is a true and
correct copy of Ordinance No. 0-05-04, which was adopted at the August 24th,
2005 Sebastian City Council Meeting.
AN ORDINANCE OF THE CITY OF SEBASTIAN, FLORIDA, PROVIDING FOR THE
VOLUNTARY ANNEXATION OF LAND CONSISTING OF 25.55 ACRES, MORE OR
LESS, LOCATED NEAR POWERLlNE ROAD SOUTH OF BARBER STREET KNOWN
AS CROSS CREEK SUBDIVISION PHASE II; PROVIDING FOR INTERIM LAND USE
AND ZONING CLASSIFICATION; PROVIDING FOR CONFLICT; PROVIDING FOR AN
EFFECTIVE DATE.
I hereby affix the seal of the City of Sebastian, this 16th day of
~
Sally A. M
City Cler
City of Sebastian