Item 3AAGENDA ITEM # 3A
MAY 10, 2010
Apri130, 2010
MEMORANDUM
TO: The Honorable Mayor
and Members of the City Commission
FROM: Jim Hanso
ity anager
SUBJECT: Follow-up eport
Ordinance on User Fees for Parks and Recreation Facilities; At the last commission meeting
when the first reading of an ordinance was held to amend the user fees for Parks and Recreation
facilities, a question was raised about groups included under the definition of "Neighborhood or
Homeowner Associations". Commissioners were advised to contact the City Manager if they
had any amended wording to recommend. As of the date of this writing, no input has been
received from Commissioners on this subject.
Unless the ordinance is amended, it would be the staff's intent to use the following definitions
commonly available on the Internet:
Neighborhood Association.
1. "A neighborhood association is a voluntary membership organization which deals with
social, political, zoning and other issues which would typically affect the member's
properties and usually do not maintain commonly owned property." American Bar
Association website.
2. A neighborhood association is a group of residents or property owners who advocate
for or organize activities within a neighborhood. An Association may have elected
leaders and voluntary dues. A neighborhood is typically a geographically localized
community than a larger city, town, or suburb." Wikipedia.
Homeowner Associations. HOA's are typically formal organizations which may or may
not be incorporated asnon-profit organizations. HOA's are often established by
developers, and membership and dues may be required. HOA's typically have common
property that is maintained by the organization. HOS'a often focus on the enforcement of
coverance and restrictions within their geographical boundaries."
AGENDA ITEM # 3A
MAY 10, 2010
Agreement with the Estates of Atlantic Beach. At the last meeting, the City Attorney was
requested to provide an opinion about whether or not the wording in the Agreement with The
Estates required the City to remove trees. A second question was raised about whether or not the
City would be covered by the title insurance policy of The Estates in certain situations. Alan
Jensen has provided a written opinion on these subjects and a copy is attached for your
information.
Construction of a Dog Park; The City has been advised by the church that the easement
requested to allow public access for use of the Hopkins Creek Retention Pond as a dog park is
still being reviewed and not yet ready for approval. Consequently, it has not been included on
the agenda for the May 10, 2010 commission meeting for approval. Construction of the park is
being held until that easement has been approved.
Rpr 30 10 10:57a Rlan Jensen 904-246-9960
ALAN C. JENSEN
Attorney at Law
935 Vorth Third Street
Jacksonville Beach, Florida 32250
Mailing Address:
Post Office Box 54457
Jacksonville Beach, FL 32240-0457
April 30, 2010
MEMO TO: James R. Hanson, City Manag
FROM: Alan C. Jensen; City Attorney
RE: The Estates of Atlantic Beach
[. TREE REMOVAL
p.l
AGENDA ITEM # 3A
MAY 10, 2010
Telephone: (904) 246-2500
Facsimile: (904) 246-9960 (cal[first)
E-Mail: Alan(ci;.AJensenLaw.eom
A few have questioned whether the City has an obligation under the original agreement signed with
The Estates of Atlantic Beach ("EAB") to remove trees in connection v~~ith the installation of a
sewer force main through the easement granted by EAB to the City, and for any future road
construction to be done by EAB in connecting its real property to Selva Marina Drive for the
purposes of ingress and egress. It has been stated that the agreement does not specifically require
the City to remove any trees, and you have asked for lny opinion in that regard.
It is my opinion that the agreement requires the City to remove any trees necessary for the
installation of the sewer farce main and for the right-of--way for future road construction by EAB.
AZy opinion is based on the following:
1. The agreement clearly states that the easement is being provided to the City "...for
the purpose of the City installing and maintaining a sewer force main.''
(a) There is no question that the City is going to be doing the work associated
with the installation and maintenance of the sewer force main.
(b) The installation and maintenance of the sewer force main would include any
necessary tree removal.
2. The agreement also provides that the City is to work with EAB "...to locate the
sewer force main in the easement so as to avoid as many trees, and especially large trees, as
economically possible so as to save as many large trees as possible...".
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James R. Hanson, City Manager AGENDA ITEM # sA
April 30, 2010 MAY Io, Zoio
Page 2
(a) Clear intent that trees would have to be removed in the installation of the
sewer force main.
(b) The City is also required to "...pay for any tree mitigation costs resulting
from the removal of any trees for the sewer line and right-of way for future road construction"
[emphasis added
(c} The City is also required to maintain the easement "...so as to prohibit the
growth of any new trees which would require additional tree mitigation costs.''
3. It is blackletter law that in interpreting the meaning of a contract, a court would Iook
to the intent of the parties. There is no question that both parties to this agreement intended for the
City to remove the trees in connection with the installation and maintenance of the sewer force
main and the construction of the road far purposes of connecting the property to Selva Marina
Drive and the resulting ingress and egress to said properly from Selva Marina Drive.
4. Exhibit "A" attached to the agreement is the Grant of Easement to be signed by
EAB in favor of the City. Said Grant of Easement was executed on September 17, 2009, and
recorded in the official records of Duval County, Florida. Said Grant of Easement provides, in part,
as follows:
(a) Tliat it is necessary for the City to have an easement for the construction,
installation and maintenance of a sewer force main.
(b) That the Grant of Easement does not prohibit EAB from constructing a
street on its property 1~~thin the easement at any time in the future.
5. The proposed Modification Agreement between the City and EAB, which was
solely to facilitate installation of the sewer force main by directional drilling so that as few trees as
possible would be removed pursuant to the terms of the agreement; and to correct an error in the
legal description attached to the original agreement, confums the clear intent of the parties by
stating that the City agreed, among other things, to remove certain trees and to pay the tree
mitigation costs in connection with the use of the easement and future road construction.
Therefore; the original agreement requires the City to remove any trees necessary- for the installation
and maintenance of the sewer force main and to remove any trees necessary in the right-of--way for
future road construction by EAB. The City is also required under the original agreement to pay any
tree mitigation costs resulting from-the removal of such trees.
2
Rpr 30 10 10:57a Rlan Jensen 904-246-9960 p.3
James R. Hanson, City Manager AGENDA ITEM # 3A
April 30, 2010 MAY Io, aolo
Page 3
II. TITLE INSURANCE
A question also came up regarding the owner's title insurance policy with 41d Republic National
Title Insurance Company and whether the City would ~ covered under that title insurance policy
for any damages it might incur if the sewer force main was installed and subsequently EAB was
determined not to own the property.
It is my opinion that the City would not be directly covered by the owner's title insurance policy for
any damages incurred by the City. However, in the event there were damages to the City resulting
from EAB not having title to the property, then in that event the City would have a claim against
EAB for its damages. It is my understanding that the owner's title insurance policy insures them
against actual monetary loss or damage sustained or incurred by them by reason of the matters
insured against by the title insurance policy. The first page of the title insurance policy states that
the owners are insured in regard to the {i) ``title to the estate or interest described in Schedule A
being vested other than as stated herein" and (2} "any defect in or lien or encumbrance on the title"
and (3) "unmarketability ofthe title."
Therefore, it is my understanding that if the City were to incur losses or damages resulting from
EAB not having title to the property, the City would have a claim against EAB for its losses or
damages, and that EAB has insurance to cover any such losses or damages.
However, based upon the information provided by the officers and directors of RCBS Corporation
that no further actions regarding any rights or future litigation regarding the property owned by
EAB will be taken, it appears that the parties with standing to challenge EAB's title to its property,
including that part received from the City of Jacksonville pursuant to the reverter clause, will be
taking no action. This obviously substantially lessens any possibility that it will ever be determined
that EA$ does not own the subject property.
Please contact me with any questions regarding the above opinions.
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