HomeMy WebLinkAbout2010 - Restrictive Covenants - Recorded 2077484
THIS DOCUMENT HAS BEEN
RECORDED IN THE PUBLIC RECORDS
OF INDIAN RIVER COUNTY FL
This document prepared by: BK:2431 PG:1268, Pagel of 12
Kristen L.Coons,Esquire 07/12/2010 at 11:53 AM,
Florida Communities Trust JEFFREY K BARTON,CLERK OF COURT
Department of Community Affairs
2555 Shumard Oak Blvd.
Tallahassee,FL 32399
FLORIDA COMMUNITIES TRUST
SMWW1 AWARD#08-003-WW1
FCT Contract#09-CT-E1-08-F8-G1-WW 1
SEBASTIAN WORKING WATERFRONT
DECLARATION OF RESTRICTIVE COVENANTS
THIS DECLARATION is entered into by and between the FLORIDA COMMUNITIES TRUST
("FCT"),a nonregulatory agency within the State of Florida Department of Community Affairs,and
the CITY OF SEBASTIAN, a political subdivision of the State of Florida("Recipient").
THIS DECLARATION IS ENTERED INTO BASED ON THE FOLLOWING FACTS:
WHEREAS, the intent of this Declaration is to impose terms and conditions on the use of
state funds and the lands acquired with such state funds,as described in Exhibit"A"attached hereto
and made a part hereof("Project Site"), that are necessary to ensure compliance with applicable
Florida law and to otherwise implement the provisions of Sections 259.105, 259.1051 and Chapter
380, Part III, Florida Statutes;
WHEREAS, Chapter 380, Part III, Fla. Stat.,the Florida Communities Trust Act, creates a
non-regulatory agency within the Department of Community Affairs("Department")that will assist
local governments in bringing into compliance and implementing the conservation,recreation and
open space,and coastal elements of their comprehensive plans or in conserving natural resources and
resolving land use conflicts by providing financial assistance to local governments and nonprofit
working waterfront organizations to carry out projects and activities authorized by the Florida
Communities Trust Act;
WHEREAS, the people of the State of Florida are concerned about the loss of adequate
access to tidal waters for the commercial harvesting of wild and aquacultured marine organisms
within the State of Florida;
WHEREAS, FCT is funded through either Section 259.105(3)(c), Fla. Stat. of the Florida
Forever Act, which provides for the distribution of two point five percent (2.5%), less certain
reductions, of the net Florida Forever Revenue Bond proceeds to the Department, or any other
revenue source designated by the Florida Legislature, to provide land acquisition grants to local
governments and nonprofit working waterfront organizations for the acquisition of working
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WHEREAS, the State of Florida, acting by and through FCT, and the Recipient seek to
permanently preserve and conserve the Project Site as a working waterfronts since the Project Site
has significant value as working waterfront real estate to provide access to tidal waters to support or
to provide direct services to Working Waterfronts Businesses;
WHEREAS,Rule 9K-9,Florida Administrative Code("F.A.C."), sets forth the procedures
for the evaluation and selection of lands proposed for acquisition and Rule 9K-10,F.A.C. sets forth
the acquisition procedures;
WHEREAS,FCT has approved the terms under which the Project Site was acquired and the
deed whereby the Recipient acquired title to the Project Site. The deed shall contain such covenants
and restrictions as are sufficient to ensure that the use of the Project Site at all times complies with
Section 375.051, Florida Statutes and Section 9, Article XII of the State Constitution and it shall
contain clauses providing for the conveyance of title to the Project Site to the Board of Trustees of
the Internal Improvement Trust Fund("Trustees")upon the failure of the Recipient to use the Project
Site acquired thereby for such purposes;
WHEREAS,the purpose of this Declaration is to set forth the covenants and restrictions that
are imposed on the Project Site subsequent to disbursing FCT Florida Forever funds to the Recipient
for Project Costs; and,
WHEREAS,this Declaration constitutes a restriction and covenant that shall forever run with
the land and is binding upon the Recipient, its successors, and assigns in the event of any transfer,
sale or foreclosure of the Project Site.
NOW THEREFORE, in consideration of the mutual covenants and undertakings set forth
herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, FCT and the Recipient do hereby contract and agree as follows:
I. PERIOD OF AGREEMENT
1. This Declaration shall begin upon execution by both parties. The covenants and
restrictions contained herein shall run with the Project Site and shall bind,and the benefit shall inure
to, FCT and the Recipient and their respective successors and assigns.
II. MODIFICATION OF DECLARATION
1. Either party may request modification of the provisions of this Declaration at any
time. Changes which are mutually agreed upon shall be valid only when reduced to writing and duly
signed by each of the parties hereto. Such amendments shall be incorporated into this Declaration.
III. RECORDING AND APPROVAL OF DECLARATION OF RESTRICTIVE
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COVENANTS
1. Upon execution by the parties hereto,the Recipient shall cause this Declaration to be
recorded and filed in the official public records of Indian River County, Florida, and in such
manner and in such other places as FCT may reasonably request. The Recipient shall pay all fees
and charges incurred in connection therewith.
2. The Recipient and FCT agree that the State of Florida Department of Environmental
Protection shall forward this Declaration to the Department of Environmental Protection Bond
Counsel for review. In the event Bond Counsel opines that an amendment is required to this
Declaration so that the tax-exempt status of the Florida Forever Bonds is not jeopardized,FCT and
the Recipient shall amend the Declaration accordingly.
IV. NOTICE AND CONTACT
1. All notices provided under or pursuant to this Declaration shall be in writing and
delivered either by hand delivery or first class, certified mail, return receipt requested, to the
addresses specified below. Any such notice shall be deemed received on the date of delivery if by
personal delivery or upon actual receipt if sent by registered mail.
FCT: Florida Communities Trust
Department of Community Affairs
2555 Shumard Oak Blvd.
Tallahassee, FL 32399-2100
ATTN: Program Manager
Recipient:
ATTN:
2. In the event that a different representative or address is designated for paragraph 1.
above after execution of this Declaration,notice of the change shall be rendered to FCT as provided
in paragraph 1. above.
V. PROJECT SITE TITLE REQUIREMENTS IMPOSED BY CHAPTER 259,
CHAPTER 375 AND CHAPTER 380, PART III, FLA. STAT.
1. Any transfer of the Project Site shall be subject to the approval of FCT and FCT shall
enter into a new agreement with the transferee containing such covenants, clauses or other
restrictions as are sufficient to protect the interest of the State of Florida.
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2. The interest acquired by the Recipient in the Project Site shall not serve as security for
any debt of the Recipient.
3. If the existence of the Recipient terminates for any reason, title to the Project Site
shall be conveyed to the Trustees unless FCT negotiates an agreement with another local
government,nonprofit environmental organization,the Florida Division of Forestry,the Florida Fish
and Wildlife Conservation Commission, the Department of Environmental Protection or a Water
Management District who agrees to accept title and manage the Project Site.
4. In the event that the Project Site is damaged or destroyed or title to the Project Site,or
any part thereof,is taken by any governmental body through the exercise or the threat of the exercise
of the power of eminent domain,the Recipient shall deposit with FCT any insurance proceeds or any
condemnation award and shall promptly commence to rebuild,replace,repair or restore the Project
Site in such manner as is consistent with the Declaration. FCT shall make any such insurance
proceeds or condemnation award moneys available to provide funds for such restoration work. In
the event that the Recipient fails to commence or to complete the rebuilding,repair,replacement or
restoration of the Project Site after notice from FCT, FCT shall have the right, in addition to any
other remedies at law or in equity, to repair, restore, rebuild or replace the Project Site so as to
prevent the occurrence of a default hereunder.
Notwithstanding any of the foregoing,FCT shall have the right to seek specific performance of any
of the covenants and restrictions of this Declaration concerning the construction and operation of the
Project Site.
VI. MANAGEMENT OF PROJECT SITE
1. The Project Site shall be managed only for the conservation, protection and
enhancement of working waterfronts,along with other related uses necessary for the accomplishment
of this purpose. The proposed uses for the Project Site are specifically designated in the
Management Plan approved by FCT.
2. The Recipient shall ensure that the future land use designation assigned to the Project
Site is for a category dedicated to working waterfront uses,as appropriate. If an amendment to the
applicable comprehensive plan is required, the amendment shall be proposed at the next
comprehensive plan amendment cycle available to the Recipient.
3. The Recipient shall ensure, and provide evidence thereof to FCT, that all activities
under this Declaration comply with all applicable local, state, regional and federal laws and
regulations,including zoning ordinances and the adopted and approved comprehensive plan for the
jurisdiction,as applicable. Evidence shall be provided to FCT that all required licenses and permits
have been obtained prior to the commencement of any construction.
4. The Recipient shall,through its agents and employees,prevent the unauthorized use
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of the Project Site or any use thereof not in conformity with the Management Plan approved by FCT.
5. FCT staff or its duly authorized representatives shall have the right at any time to
inspect the Project Site and the operations of the Recipient at the Project Site.
6. All buildings, structures, improvements and signs shall require the prior written
approval of FCT as to purpose.Further,tree removal,other than non-native species,and major land
alterations shall require the written approval of FCT. The approvals required from FCT shall not be
unreasonably withheld by FCT upon sufficient demonstration that the proposed structures,buildings,
improvements, signs, vegetation removal or land alterations will not adversely impact the natural
resources or working waterfront aspects of the Project Site. FCT's approval of the Recipient's
Management Plan addressing the items mentioned herein shall be considered written approval from
FCT.
7. If archaeological and historic sites are located on the Project Site,the Recipient shall
comply with Chapter 267, Fla. Stat. The collection of artifacts from the Project Site or the
disturbance of archaeological and historic sites on the Project Site shall be prohibited unless prior
written authorization has been obtained from the Department of State, Division of Historical
Resources.
8. As required by Rule 9K-9, F.A.C., each year after FCT reimbursement of Project
Costs the Recipient shall prepare and submit to FCT an annual stewardship report that documents the
progress made on implementing the Management Plan.
VII. SPECIAL MANAGEMENT CONDITIONS
In addition to the Management Plan conditions already described in this Agreement,which apply to
all sites acquired with FCT funds,the Management Plan shall address the following conditions that
are particular to the project site and result from either representations made in the application that
received scoring points or observations made by FCT staff during the site visit described in Rule 9K-
9.007, F.A.C.:
1. The future land use and zoning designations of the project site shall be changed to
Working Waterfronts or other similar category.
2. A permanent recognition sign, at a minimum size of 3' x 4', shall be maintained at the
entrance area of the project site. The sign shall acknowledge that the project site was purchased
with funds from the Florida Communities Trust Program and the Recipient.
3. After closing, the existing submerged land lease will be transfer to the Recipient.
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4. Annually the Recipient will provide a letter from the Department of Environmental
Protection stating the Recipient is in compliance with Chapters 253, 258, 373 Part IV and 403
Florida Statutes and the submerged land lease for all facilities or structures on the Project Site
that are located over state sovereignty submerged land and that applicable fees or wetslip
certification forms are current or that the facilities.
5. One of the existing buildings on the project site will be used as a working waterfront
building and the other as an educational site highlighting the cultural and historic heritage of
Florida's traditional Working Waterfronts.
6. Permanent structured displays of artifacts and other items shall be provided that provides
information about the economic, cultural or historic heritage of Florida's traditional Working
Waterfronts.
7. Interpretive kiosk or signs shall be provided that educate the public about the economic,
cultural, or historic heritage of Florida's traditional Working Waterfronts.
VIII. RECORDKEEPING; AUDIT REQUIREMENTS
1. The Recipient shall maintain financial procedures and support documents, in
accordance with generally accepted accounting principles,to account for the receipt and expenditure
of funds under this Declaration. These records shall be available at all reasonable times for
inspection, review or audit by state personnel, FCT and other personnel duly authorized by FCT.
"Reasonable" shall be construed according to the circumstances,but ordinarily shall mean the normal
business hours of 8:00 a.m. to 5:00 p.m., local time, Monday through Friday.
2. If the Recipient expends a total amount of State financial assistance equal to or in
excess of$500,000 in any fiscal year of such Recipient, the Recipient must have a State single or
project-specific audit for such fiscal year in accordance with Section 215.97,Fla.Stat.,the applicable
rules of the Executive Office of the Governor and the Comptroller and Chapter 10.550 (local
government entities)or Chapter 10.650(nonprofit organizations),Rules of the Auditor General. In
determining the State financial assistance expended in its fiscal year,the Recipient shall consider all
sources of State financial assistance, including State funds received from FCT,other state agencies
and other non-state entities. State financial assistance does not include Federal direct or pass-
through awards and resources received by a non-state entity for Federal program matching
requirements. The funding for this Declaration was received by FCT as a grant appropriation.
In connection with the audit requirements addressed herein,the Recipient shall ensure that the audit
complies with the requirements of Section 215.97(7), Fla. Stat. This includes submission of a
reporting package as defined by Section 215.97(2)(d), Fla. Stat. and Chapter 10.550 (local
government entities) or 10.650 (nonprofit organizations), Rules of the Auditor General.
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3. If the Recipient expends less than$500,000 in State financial assistance in its fiscal
year, an audit conducted in accordance with the provisions of Section 215.97, Fla. Stat. is not
required. If the Recipient elects to have an audit conducted in accordance with the provisions of
Section 215.97, Fla. Stat., the cost of the audit must be paid from non-State funds (i.e.,the cost of
such an audit must be paid from Recipient funds not obtained from a State entity).
4. The annual financial audit report shall include all management letters,the Recipient's
response to all findings, including corrective actions to be taken, and a schedule of financial
assistance specifically identifying all Declaration and other revenue by sponsoring agency and
agreement number. Copies of financial reporting packages required under this Article shall be
submitted by or on behalf of the Recipient directly to each of the following:
Department of Community Affairs (at each of the following addresses):
Office of Audit Services
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
and
Florida Communities Trust
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
State of Florida Auditor General at the following address:
Auditor General's Office
Room 401, Claude Pepper Building
111 West Madison Street
Tallahassee, Florida 32302-1450
5. If the audit shows that any portion of the funds disbursed hereunder were not spent in
accordance with the conditions of this Declaration, the Recipient shall be held liable for
reimbursement to FCT of all funds not spent in accordance with the applicable regulations and
Declaration provisions within thirty (30) days after FCT has notified the Recipient of such non-
compliance.
6. The Recipient shall retain all financial records, supporting documents, statistical
records and any other documents pertinent to this Declaration for a period of five years after the date
of submission of the final expenditures report. However, if litigation or an audit has been initiated
prior to the expiration of the five-year period,the records shall be retained until the litigation or audit
p p Y p g
findings have been resolved.
7. The Recipient shall have all audits completed in accordance with Section 215.97,
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Fla. Stat. performed by an independent certified public accountant ("IPA") who shall either be a
certified public accountant or a public accountant licensed under Chapter 473, Fla. Stat. The IPA
shall state that the audit complied with the applicable provisions noted above.
IX. DEFAULT; REMEDIES; TERMINATION
1. If any essential term or condition of the Declaration of Restrictive Covenants is
violated by the Recipient or by some third party with the knowledge of the Recipient,the Recipient
shall be notified of the violation by written notice given by personal delivery, registered mail or
registered expedited service. The recipient shall diligently commence to cure the violation or
complete curing activities within thirty(30)days after receipt of notice of the violation. If the curing
activities can not be reasonably completed within the specified thirty (30) day time frame, the
Recipient shall submit a timely written request to the FCT Program Manager that includes the status
of the current activity, the reasons for the delay and a time frame for the completion of the curing
activities. FCT shall submit a written response within thirty(30)days of receipt of the request and
approval shall not be unreasonably withheld. It is FCT's position that all curing activities shall be
completed within one hundred twenty (120) days of the Recipient's notification of the violation.
However, if the Recipient can demonstrate extenuating circumstances exist to justify a greater
extension of time to complete the activities, FCT shall give the request due consideration. If the
Recipient fails to correct the violation within either(a)the initial thirty(30)day time frame or(b)the
time frame approved by FCT pursuant to the Recipient's request,fee simple title to all interest in the
Project Site shall be conveyed to the Trustees unless FCT negotiates an agreement with another local
government,nonprofit environmental organization,the Florida Division of Forestry,the Florida Fish
and Wildlife Conservation Commission, the Department of Environmental Protection or a Water
Management District,who agrees to accept title and manage the Project Site. FCT shall treat such
property in accordance with Section 380.508(4)(e), Fla. Stat.
X. LEGAL AUTHORIZATION
1. The Recipient certifies with respect to this Declaration that it possesses the legal
authority to receive funds to be provided under this Declaration and that,if applicable,its governing
body has authorized, by resolution or otherwise, the execution and acceptance of this Declaration
with all covenants and assurances contained herein. The Recipient also certifies that the undersigned
possesses the authority to legally execute and bind the Recipient to the terms of this Declaration.
XI. STANDARD CONDITIONS
1. This Declaration shall be construed under the laws of the State of Florida,and venue
for any actions arising out of this Declaration shall lie in Leon County. If any provision hereof is in
conflict with any applicable statute or rule,or is otherwise unenforceable,then such provision shall
be deemed null and void to the extent of such conflict and shall be severable,but shall not invalidate
any other provision of this Declaration.
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2. No waiver by FCT of any right or remedy granted hereunder or failure to insist on
strict performance by the Recipient shall affect or extend or act as a waiver of any other right or
remedy of FCT hereunder,or affect the subsequent exercise of the same right or remedy by FCT for
any further or subsequent default by the Recipient.
3. The Recipient agrees to comply with the Americans With Disabilities Act (Public
Law 101-336, 42 U.S.C. Section 12101 et seq.), if applicable, which prohibits discrimination by
public and private entities on the basis of disability in the areas of employment, public
accommodations,transportation, State and local government services, and in telecommunications.
4. A person or affiliate who has been placed on the convicted vendor list following a
conviction for a public entity crime or on the discriminatory vendor list may not submit a bid on a
contract to provide any goods or services to a public entity,may not submit a bid on a contract with a
public entity for the construction or repair of a public building or public work,may not submit lease
bids on leases of real property to a public entity, may not be awarded or perform work as a
contractor, supplier, subcontractor,or consultant under a contract with a public entity,and may not
transact business with any public entity in excess of Category Two for a period of 36 months from
the date of being placed on the convicted vendor list or on the discriminatory vendor list.
5. No funds or other resources received from FCT in connection with this Declaration
may be used directly or indirectly to influence legislation or any other official action by the Florida
Legislature or any state agency.
This Declaration including Exhibit"A" embodies the entire agreement between the parties.
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•
IN WITNESS WHEREOF, the parties hereto have duly executed this Declaration.
Witness: CITY OF SEBASTIAN, a political
subd' isi s of the State of Florida
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Print . 14u.Gc✓E
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Print Nam- A, i
Approy9iA to Fo and Legality:
By: Fo
Print Name: 12.00 4 pr A . G I NSBNiQC
STATE OF FLORIDA
COUNTY OF INDIAN RIVER
The foregoing instrument was acknowledged before me this Z 3 rd day of (,tn ,
2010,by /1( /Y(in n er on behalf of the Local Government,and who is personally
known to me.
NOTUiV PUlLIC JEANETTE WILLIAMS
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Commission OD 630052 •{TE t Public Expires February 2011
srATEaPRON BaMedTlw Troy Fen Insurance B0038S7019 Print Name: Jeanette lid i( l'arcs
Commission No. DD(030052
My Commission Expires: 212g///
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Witness: FLORIDA COMMUNITIES TRUST
7(474.-tz.e7
By:
Print e: 'r` „ Ken Reecy,Community Pr ram Manager
/ Florida Communities Trust
Date:
Print Name:
Approv ;ias t orm and Legality:
By:
Kristen L. Coons, Trust Counsel
STATE OF FLORIDA
COUNTY OF LEON
The foregoing instrument was acknowledged before me this d t y I
2010,by Ken Reecy,Community Program Manager,Florida Communities Trust, ho is personally
known to me.
otary Public
Print Name:
Commission No.
My Commission Expires:
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• • EXHIBIT"A"
DANCU PARCEL
Lots 1, 2 and 3,Block 2,Middleton's Subdivision of City of Sebastian, according to the map or plat thereof as recorded in
Plat Book 2,Page 56,Public Records of Indian River County, Florida.
TOGETHER WITH
From a point of beginning at the intersection of the South line of Government Lot 2, of Section 31, Township 30 South,
Range 39 East,Indian River County,Florida and the Mean High Water Mark of the West bank of Indian River,run West
along said South line of Governmental Lot 2 a distance of 80.05 feet,more or less,to the East right-of-way of Old U.S.
Highway No. 1, said right—of—way being 66 feet in width;thence run North 25 degrees 22 minutes West along said East
right-of-way line a distance of 71.45 feet;then run East, parallel to the South line of said Governmental Lot 2, a distance of
94.89 feet;thence run North 70 degrees 45 minutes East a distance of 132.03 feet to the established bulkhead line;thence
run South 25 degrees 22 minutes East along said bulkhead line a distance of 66.43 feet;thence run South 70 degrees 45
minutes West a distance of 145.50 feet to the point of beginning on the Mean High Water Line of Indian River and on the
South line of said Government Lot 2;
AND ALSO all of that part of Lot 1,Block 1,MIDDLETON'S SUBDIVISION OF CITY OF SEBASTIAN, according to
plat thereof recorded in Plat Book 2,Page 56, Public Records of Indian River County,Florida lying East of Indian River
Drive(Old U.S. Hwy#1) and described as follows:
From a point beginning at the Mean High Water line of the West shore of the Indian River on the Township Line between
Township 30 South and Township 31 South, run West along said Township line(same being the North line of said Lot 1,
Block 1, MIDDLETON'S SUBDIVISION OF CITY OF SEBASTIAN, a distance of 80.05 feet more or less,to the East
right-of-way of Indian River Drive(Old U.S. Highway No. 1) said right-of-way being 66 feet in width;thence run South 25
degrees 22 minutes East along said East right-of-way a distance of 90 feet;thence run North 80 degrees 00 minutes 00
seconds East a distance of 113 feet more or less to the Mean High Water Line of the Indian River;thence meander the
Mean High Water Line in a Northwesterly direction to the point of beginning.
DABROWSKI PARCEL
The South 13 feet of Lot 1 and all of Lot 2,Block 1,Middleton's Subdivision, according to the Plat recorded in Plat Book
2, Page 56,Public Records of Indian River County,Florida, more particularly described as follows:
Beginning at the intersection of the South line of Middleton's Subdivision and the East right-of-way line of Indian River
Drive(being a point 37.15 feet due East of the centerline of Indian River Drive), the Point of Beginning: Thence Northerly
118 degrees 41 minutes 37 seconds along the East right-of-way, a distance of 184.75 feet more or less to a concrete
monument marked "x";thence run East 10' North of due East to the high waterline of the Indian River;thence Southerly
along the high water line of said Indian River to a point intersecting the Easterly projected South line of Middleton's
Subdivision and the high water line of the Indian River;thence West to the point of beginning. Being a part of
Government Lot 1, Section 6, Township 32 South, Range 39 East.
Together with an upland, submerged land, littoral rights, shore rights and riparian rights lying to the East thereof to the
center of the Indian River to the extent that same appertain to the property above described.
END OF LEGAL DESCRIPTION
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