Item P12BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: May 21, 2W8
Bulk Item: Yes XX No
Division: County Attorney
Staff Contact Person: Pedro Mercado
AGENDA ITEM WORDING:
Approval to execute a Declaration of Easement with the Utility Board of the City of Key West.
ITEM BACKGROUND:
The County owns the parcel of land upon which the transfer station located off Blimp Road on Cudjoe
Key is sited. The Utility Board of the City of Key West owns the parcel of property just east of the
County's parcel and located between the transfer station parcel and Blimp Road. For as long as the
transfer station has been at this location, access to the transfer station from Blimp Road has necessarily
been across the parcel owned by the Utility Board of the City of Key West. Recently, the Utility Board
entered into negotiations with the State to sell the parcel to the State as part of the State's land
conservation program. During the negotiation process, the Utility Board and the State discovered that
the County had never been granted an easement across the Utility Board property to the transfer station.
The execution of an easement will cure any impediments to the Utility Board's sale of the parcel to the
State and provide the County with a formalized easement. The easement will authorize vehicular and
pedestrian ingress and egress and placement of water, phone, electronic signal and electric utilities as
well as wastewater utility infrastructure.
PREVIOUS RELEVANT BOCC ACTION:
None
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATIONS:
APPROVAL
TOTAL COST: N/A BUDGETED: Yes No
COST TO COUNTY: N/A SOURCE OF FUNDS:
REVENUE PRODUCING: ?i es No XX AMOUNT PER MONTH
APPROVED BY: County AttyfedXX
W OMB/Purchasing _ Risk Management _
DOCUMENTATION: Inctu Not Required
DISPOSITION: AGENDA ITEM
Revised 2/05
This Instrument Was Prepared By, Record
and Return to:
Erin H. Nevius;, Esq.
EDEN & NEV[US, PL
302 Southard Street
Suite 205
Key West, FL 33040
(305)294-5588
DECLARATION OF EASEMENT
This Declaration of Easement (the "Declaration") is made and entered into as of
2008 by and between the Utility Board of the City of Key West, Florida, a utility board
created by special Act of the Florida Legislature, its successors and assigns (the "Grantor")
having an address of 1001 James Street, Key West, FL 33040, and Monroe County, Florida, a
political subdivision of the State of Florida, its successors and assigns, having an address of
1100 Simonton Street, Key West, Florida, and Clear Channel Broadcasting, Inc. a Nevada
corporation, successor by merger to Clear Channel Metroplex, Inc., a Nevada corporation,
its successors and assigns, having an address of 93351 Overseas Highway, Tavernier, FL 33070
(collectively referred to as the "Grantees").
RECITALS
A. The Grantor is the owner in fee simple of the real property described in Exhibit
"A" attached hereto and made a material part hereof (the "Easement Parcel').
B. Q.-antee Monroe County, Florida, is the owner in fee simple of the real property
described in Exhibit `B" attached hereto and made a material part hereof.
C. Grantee Clear Channel Broadcasting, Inc. is the owner in fee simple of the real
property described in Exhibit "C" attached hereto and made a material part hereof.
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D. The lands described in Exhibits "B" and "C" are collectively referred to as the
"Benefitted Parcels."
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CONSIDERATION
NOW, THEREFORE, in consideration of the sum of TEN AND NO/100 DOLLARS
($10.00) and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the following grants, agreements, covenants and restrictions are made:
TERMS, AGREEMENTS, COVENANTS AND CONDITIONS
1. Grant of Easement. Grantor hereby grants and conveys to Grantees and their
respective successors and assigns and unto the owners, lessees and occupants of all or part of the
Benefited Parcels, their heirs, legal representatives, successors and assigns, and unto their
servants, agents, employees, guests, licensees, and invitees, a non-exclusive easement across the
Easement Parcel. The easement herein granted is an appurtenant easement and is for the
purposes of ingress and egress for persons, motor vehicles, material, equipment and trailers to
and from the Benefited Parcels, and also for the purpose of providing the following utilities to
the Benefitted Parcels: electricity, telephone, telegraph, and other electronic signals, water and
wastewater. The Easement Parcel shall not be used by Grantees for the storage of vehicles,
trailers or articles of any kind, disposal of trash, including but not limited to tires, hazardous
materials, lea.chate, vehicle fluids, or any other solid gr non -solid waste. "Hazardous materials"
shall mean any hazardous or toxic substance, material or waste of any kind or any other
substance which is regulated by any environmental law. For the purposes of this Declaration of
Easement, "environmental law" shall mean all federal, state and local laws, including statutes,
regulations, ordinances, codes, rules, judgments, orders, decrees, permits, 'concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to the protection of
the environment or human health, welfare or safety, or to the emission , discharge, seepage,
release or threatened release of any contaminate, chemical, waste, irritant, petroleum product,
waste product, radioactive material, flammable or corrosive substance, explosive polychlorinated
biphenyl, asbestos, hazardous or toxic substance, material or waste of any kind into the
environment, including without limitation, ambient air, surface water, ground water, or land
including, but not limited to, the Federal Solid Waste Disposal Act, the Federal Clean Air Act,
the Federal Clean Water Act, the Federal Resource and Conservation and Recovery Act of 1976,
the Federal Comprehensive Environmental Response, Compensation and Liability Act of 1980,
the Federal Superfund Amendments and Reauthorization Act of 1986, Chapters 161, 253, 373,
376 and 403, Florida Statutes, rules of the U.S. Environmental Protection Agency, Rules of the
Florida Department of Environmental Protection, and the rules of the Florida water management
districts now or at any time hereafter in effect. The Easement Parcel shall not be used as a
staging area by the Grantees and Grantees shall not remove, damage, or destroy the gate that is
located at the; entrance of the Easement Parcel adjacent to Blimp Road. Grantees shall provide
access to Grantor, its lessee, and their respective agents, employees, guests, licensees and
invitees to the Easement Ptycel at any time by issuing Grantor a key to said gate.
2. MaintenanceRepair and Improvement of the Easement Parcel Grantees are
responsible for the improvement, upkeep, repair and maintenance of the Easement Parcel as set
forth herein, provided, however, that before undertaking any such activities, Grantees shall
obtain the prior written consent of Grantor, which shall not be unreasonably withheld.
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2.1 Exotic Plants: Grantees shall not cause invasive exotic plant species as
defined ,by the Monroe County Planning and Environmental Resources
Department to be introduced to the Easement Parcel including, but not limited to
the Brazilian pepper, Australian pine, leadtree, seaside mahoe, and Asiatic
colubrina.
2.2 Repairs Defined: The repairs and maintenance to be undertaken and
performed under this Declaration, whether necessitated by normal wear and tear,
accidental or intentional damage, or acts of nature, will include, but not be limited
to the following: improve, maintain, repair, and replace the road and/or shoulder
of the road; landscape restoration slope/shoulder mowing, litter pickup, dangerous
tree removal, landscape maintenance, tree trimming, and washout repair; repair
and maintenance of all pipes, conduits, poles, wires, and cables that transport
electricity telephone, telegraph and other electronic signals and water to and from
the Benefitted Parcels.
2.3 Condition of Property: Following the repair or maintenance of the Easement
Parcel and/or utilities aforementioned, Grantees shall restore the Easement Parcel
to the condition which existed prior to such work, including without limitation,
the restoration of all roadways, curbs and drainage, all at Grantees' sole cost and
expense.
2.4 Grantor Repairs: Grantor, Grantor's lessee, agent or invitee shall be
responsible for any and all repair of damages caused to the easement parcel as a
result of negligence in their use of the easement parcel.
2.5 Apportionment of Expenses: The Grantees agree to bear the costs and
expenses of repairs and maintenance authorized pursuant to and during the term
of this Declaration as follows: Monroe County, Florida agrees to bear 95% of the
costs and expenses. Clear Channel Broadcasting, Inc agrees to bear the remaining
5% of the costs and expenses.
2.6 Wastewater Improvements: In addition to the foregoing repairs and
maintenance, Grantee Monroe County shall have the right to install underground
sewer pipes below the surface of the Easement Parcel to transport wastewater to
the Benefitted Parcel described in Exhibit `B." Following the installation of such
underground sewer pipes, Monroe County shall restore the Easement Parcel to the
condition which existed prior to such work, including without limitation, the
restoration of all roadways, curbs and drainage. All activities performed on the
Easement Parcel pursuant to this paragraph 2.6 shall be at Grantee Monroe
County's sore cost and expense.
2.7 Record Keepine: The Grantees shall keep records of all activities performed
and costs expended pursuant to this Declaration of Easement.
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3. Contingency. This Declaration and the grant of easement rights contained herein
are contingent upon the sale of the lands which include Easement Parcel to the Board of Trustees
of the Internal Improvement Trust Fund of the State of Florida ("Board of Trustees"). Should
the sale of such lands to the Board of Trustees fail to close and title not be transferred from the
Utility Board of the City of Key West to the Board of Trustees on or before July 1, 2009, then
this Easement is terminable at will by the Utility Board of the City of Key West.
4. No Public Dedication. Nothing contained in this Declaration shall, in any way, be
deemed or constitute a gift of or dedication of any portion of the Easement Parcel to the general
public or for the benefit of the general public whatsoever, it being the intention of the parties
hereto that this grant of Easement shall be limited to and utilized for the purposes expressed
herein and only for the benefit of the persons herein named.
5. Indemnity. Grantees Clear Channel Broadcasting, Inc. hereby agrees to
indemnify and hold harmless the Grantor from any and all actions, causes of action, claims,
liabilities, demands and losses of any kind whatsoever which may be filed or made against
Grantor by reason of the Grantee Clear Channel Broadcasting, Inc. use of the Easement Parcel
and the rights granted hereunder. The failure of the Grantor to notify Grantee Clear Channel
Broadcasting, Inc. of a claim shall not release the Grantee from any of the requirements of this
section.
6. Personal In
j_ury and Property Damage Liability. Any liability of the parties for
personal injury to any worker employed to make repairs under this Declaration, or to third
persons, as well as any liability of the parties for damage to the property of any worker, or of any
third persons., as a result of or arising out of repairs and maintenance under this Declaration, will
be borne, as between the Grantees, in the same percentages as they bear the costs and expenses
of the repairs and maintenance. Any liability arising out of the installation of wastewater
improvements referenced in paragraph 2.6 of this Declaration shall be borne solely by Grantee
Monroe County. Grantee Monroe County is a state agency subject to limited liability under
§768.28, F.S., and maintains adequate insurance to respond to any liability in excess thereof.
Pursuant to F.S. 768.28, Grantee Monroe County's liability is limited to $100,000 per person ,
$200,000 per occurrence. The Grantees will be responsible for and maintain their own insurance.
7. Binding Effect. The terms and conditions of this Declaration shall run with the
Easement Parcel and shall be appurtenant to the Benefitted Parcels, and shall inure to the benefit
of and be enforceable by the Grantees and the Grantor, their respective legal representatives,
successors and assigns. The Grantor and the Grantees shall each have a right of action to enforce
by proceedings at law or in equity all conditions and covenants imposed by the provisions of this
Declaration, or any amendment thereto, including the right to prevent the violation of such
conditions and covenants agd the right to recover damages for such violation.
8. Liens. Fee title to the Easement Parcel is held by the Grantor, and Grantees shall
not do or permit anything to be done which purports to create a lien or encumbrance of any kind
against the real property interest of Grantor. Grantees may bond over and contest the validity of
any mechanic's lien in lieu of payment thereof.
IQ
9. Non -Exclusive Easement. The easement granted herein is non-exclusive, and
Grantor retains the right to engage in any activities on, over, below or across the Easement Parcel
which do not unreasonably interfere with Grantees' use of the Easement Parcel for the purposes
specified herein. Grantor further retains the right to grant compatible uses to third parties during
the term of the Declaration and the easement rights granted herein.
10. Easement Burden. It is understood and agreed that the burden upon the Easement
Parcel contemplated by this Declaration is based upon the level of usage of the Easement Parcel
imposed by the use of the Exhibit `B" lands (owned by Monroe County) as a wastewater
treatment plant and the Exhibit "C" lands (owned by Clear Channel Broadcasting, Inc.) as a
broadcasting tower site. Any increase in the burden upon the Easement Parcel is not permissible.
11. DEFAULT. In the event that either of the Grantees breaches any provision of
this Declaration, then in addition to any other remedies which are otherwise provided for in this
Declaration, the Grantor in its sole discretion may exercise one or more of the following options,
after written notice to the Grantees:
a.) Pursue a claim for damages suffered by the Grantor;
b.) Pursue any other remedies legally available;
c.) Perform, by its employees or through hired contractors, any repair,
improvement, or maintenance work and seek repayment for the cost
thereof from the Grantees;
d.) Suspend use of the Easement Parcel by the Grantees until the breach is
cured; or
e.) Terminate this Declaration of Easement and the easement rights granted
thereby.
12. No Waiver. Failure by either party to enforce any covenant, condition or
restriction contained in this Declaration in any certain instance or on any particular occasion
shall not be deemed a waiver of such right on any future breach of the same or any other
covenant, condition or restriction.
13. Severability. Invalidation of any one or a portion of these covenants, conditions
and restrictions by judgment or court order shall in no way affect any other provisions, which
shall remain in full force and effect.
14. Notices. Any notice hereunder shall be in writing and shall be deemed to have
been properly delivered when directed to the addressee as follows:
If to Grantee Monroe County:
Monroe County
1100 Simonton Street
Key West, FL 33040
Attention: County Administrator
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With a copy to
Grantee's Attorney:
If to Grantee Clear Channel Broadcasting, Inc.
With a copy to:
If to Grantor:
With a copy to
Grantor's Attorney:
Monroe County Attorneys Office
P.O. Box 1026
Key West, Fl. 33041-1026
Phone: 1-305 292 - 3470
Fax: 1-305 292 - 3516
Clear Channel Broadcasting, Inc.
93351 Overseas Highway
Tavernier, FL 33070
Clear Channel Real Estate, LLC
200 E. Basse Road
San Antonio, TX 78209
Utility Board of the City of Key West
1001 James Street
Key West, FL 33040
Attention: Lou Hernandez, Chairman
Nathan E. Eden, Esq.
EDEN & NEVIUS, PL
302 Southard Street, Suite 205
Key West, FL 33040
Any notice, request, demand, instruction or other communication to be given to any party
hereunder, shall be in writing and shall either be (i) hand delivered, (ii) sent by Federal Express
or a comparable overnight mail service, or (iii) sent by telephone facsimile transmission provided
an original copy of the transmission shall be mailed by regular mail, all at or to the respective
addresses set forth above. Notice shall be deemed to have been given upon receipt or refusal of
delivery of said notice. The addressees and addresses for the purpose of this paragraph may be
changed by giving notice. Unless and until such written notice is received, the last addressee and
address stated herein shall be deemed to continue in effect for all purposes hereunder.
15. Captions. Captions used in this Declaration are for information purposes only and
do not alter, modify or add to the terms of this Declaration.
16. Governine Law. This Declaration will be governed and interpreted pursuant to
the laws of the State off lorida. Grantor and Grantees, their successors and assigns, shall
perform all of their respective obligations under this Declaration in compliance with all
applicable laws.
0
17. Modification/Entire Agreement. This Declaration may be modified only in a
writing executed by the,parties to this Declaration or their respective successors or assigns. This
Declaration constitutes the entire agreement between all of the parties with respect to the subject
matter hereof and shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
18. Waiver of Jury Trial. Grantor and Grantees hereby knowingly, voluntarily and
intentionally, waive trial by jury in any action brought by one against the other in connection
with any matter arising out of or in any way connected with this Declaration. This waiver shall
apply to any original claim, counterclaim, cross claim, or other claim of any kind asserted by
either party in any such action. None of the parties nor any representative of any of the parties,
including counsel, has represented to the other that it would not seek to enforce this waiver of
right to jury trial in any such action. The parties acknowledge that the provisions of this section
are a material inducement to their entering into this Declaration.
Witnesses: As to the Grantor:
Printed Name:
Printed Name:
(SEAL)
ATTEST: DANNY L. KOLHAGE, CLERK
M
Deputy Clerk
Date
UTILITY BOARD OF THE CITY OF KEY
WEST, FLORIDA, A UTILITY BOARD
CREATED BY SPECIAL ACT OF THE
FLORIDA LEGISLATURE
M
Lou Hernandez, as its Chairman
As to the Grantees:
MONROE COUNTY, A POLITICAL
SUBDIVISION OF THE STATE OF
FLORIDA
By:
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By
6BUNTV ATM
VED AS T9190i
Charles "Sonny" McCoy, as Mayor
ATTORNEY
Wr
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Witnesses:
Printed Name:
CLEAR CHANNEL BROADCASTING,
INC. A NEVADA CORPORATION,
SUCCESSOR BY MERGER TO CLEAR
CHANNEL METROPLEX, INC., A
NEVADA CORPORATION
Printed Name: By:
Charles G. Dan III, Sr. Vice President
(CORPORATE SEAL)
STATE OF FLORIDA
COUNTY OF MONROE
The foregoing instrument was acknowledged before me this _ day of
2008 by Lou. Hernandez, as Chairman of the Utility Board of the City of Key West, Florida, a
utility board created by Special Act of the Florida Legislature, on behalf of said Utility Board,
who is personally known to me or produced a as identification.
Notary Public
State of Florida at Large
My Commission Expires:
THIS PORTION LEFT BLANK INTENIONALLY
STATE OF
COUNTY OF'
The foregoing instrument was acknowledged before me this _ day of
2008 by Charles G. Dan III, as Sr. Vice President, of Clear Channel Broadcasting, Inc., a Nevada
corporation, successor by merger to Clear Channel Metroplex, Inc., a Nevada corporation, on
behalf of said corporation, who is personally known to me or produced a as
identification.
Notary Public
State of Florida at Large
My Commission Expires
THIS PORTION LEFT BLANK INTENTIONALLY
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EXHIBIT"A"
LEGAL DESCRIPTION
THE EASEMENT PARCEL
(To be inserted prior to recording).
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4 _ I E / LUOJOE NEY — m mv.— "111 MAI yt�WNe.pEP}. of ENVIROXMEM.11. PROTECTION uu. r" ���ll!
EXHIBIT "A"
A 50.0 FT. WIDE EASEMENT FOR INGRESS/EGRESS, LYING 25.0 FT. EACH SIDE OF THE FOLLOWING
DESCRIBED CENTERLINE, TO WIT:
COMMENCE AT THE SOUTHWEST CORNER OF GOVERNMENT LOT 9 OF SECTION 20, TOWNSHIP 66
SOUTH, RANGE 28 EAST; THENCE RUN N00'00'52W, ALONG THE WEST LINE OF SAID SECTION 20,
A DISTANCE OF 366.35 FT. FOR A POINT OF BEGINNING; THENCE RUN N84059'42"E ALONG SAID
EASEM ENT CENTERLINE, A DISTANCE OF 2348.90 FT. TO THE INTERSECTION WITH THE WESTERLY
RIGHT-OF-WAY LINE OF "BLIMP ROAD", A 100 FT. WIDE PUBLIC RIGHT-OF-WAY AS SHOWN ON
STATE ROAD DEPARTMENT RIGHT-OF-WAY MAP SECTION 90600-2150, AND THE TERMINUS POINT
OF SAID EASEMENT CENTERLINE, BEING AND LYING IN SECTION 20, TOWNSHIP 66 SOUTH, RANGE
28 EAST MONROE COUNTY, FLORIDA.
THE PERIMETRICAL BOUNDARIES OF WHICH EXTEND TO THE INTERSECTION WITH THE W ESTERLY
LINE OF GOVERNMENT LOT 9 OF SECTION 20, TOWNSHIP 66 SOUTH, RANGE 28 EAST ON THE
WEST AND THE INTERSECTION WITH THE WESTERLY RIGHT-OF-WAY LINE OF'BLIMP ROAD" ON
THE EAST.
BSM:
DATE 5-6-05
FKE/Cudjoa Key
City of Key West UBtlty Board Parcel #10180
Proposed Ingress/Egress Easement
Page 1 of 1
EXHIBIT `B"
LEGAL DESCRIPTION OF
THE BENEFITED PARCEL
OWNED BY MONROE
COUNTY, FLORIDA
(To be inserted prior to recording).
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EXHIBIT "C"
LEGAL DESCRIPTION OF PROPERTY OWNED BY
CLEAR CHANNEL BROADCASTING, INC.
On Cudjoe Key, Monroe County, Florida, and being all of Government Lot 8 of
Section 19 in Township 66 South, Range 20 East, LESS AND EXCEPT the East 893.1
feet thereof, containing approximately (9) nine acres.
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BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: May 21, 2008
Bulk Item: Yes XX No
Division: County Attorney
Staff Contact Person: Pedro Mercado
AGENDA ITEM WORDING:
Approval to execute a Declaration of Easement with the Utility Board of the City of Key West.
ITEM BACKGROUND:
The County owns the parcel of land upon which the transfer station located off Blimp Road on Cudjoe
Key is sited. The Utility Board of the City of Key West owns the parcel of property just east of the
County's parcel and located between the transfer station parcel and Blimp Road. For as long as the
transfer station has been at this location, access to the transfer station from Blimp Road has necessarily
been across the parcel owned by the Utility Board of the City of Key West. Recently, the Utility Board
entered into negotiations with the State to sell the parcel to the State as part of the State's land
conservation program. During the negotiation process, the Utility Board and the State discovered that
the County had never been granted an easement across the Utility Board property to the transfer station.
The execution of an easement will cure any impediments to the Utility Board's sale of the parcel to the
State and provide the County with a formalized easement. The easement will authorize vehicular and
pedestrian ingress and egress and placement of water, phone, electronic signal and electric utilities as
well as wastewater utility infrastructure.
PREVIOUS RELEVANT BOCC ACTION:
None
CONTRACT/AGREEMENT CHANGES:
NIA
STAFF RECOMMENDATIONS:
APPROVAL
TOTAL COST: N/A BUDGETED: Yes No
COST TO COUNTY: NIA SOURCE OF FUNDS:
REVENUE PRODUCING:Tes No XX AMOUNT PER MONTH
APPROVED BY: County Atty OMB/Purchasing Risk Management
DOCUMENTATION: Included XX Not Required
DISPOSITION:
CA[ ILI 4XV11 r au
Revised 2/05