HomeMy WebLinkAboutIII(F) Approval And Authorization For Mayor And City Clerk To Execute Temporary Construction Easement Agreement With Rimos Holdings, Inc. For Parcels 706 And 708 AGENDA 11-05-96
Item III F
FOLEY & LARDNER
ATTORNEYS AT LAW
CHICAGO - POST OFFICE BOX 2193 SAN DIEGO
JACKSONVILLE ORLANDO, FLORIDA 32802-2193 SAN FRANCISCO
LOS ANGELES 111 NORTH ORANGE AVENUE,SUITE 1800 TALLAHASSEE
MADISON ORLANDO,FLORIDA 32801-2386 TAM PA
MILWAUKEE TELEPHONE(407)423-7656 WASHINGTON D.C.
SACRAMENTO FACSIMILE(407)648-1743 WEST PALM BEACH
WRITER'S DIRECT LINE
MEMORANDUM
TO: The Honorable Mayor and City Commissioners of
the City of Ocoee
FROM: Mary A. Doty, Assistant City Attorney
THRU: Paul E. Rosenthal, City Attorney
DATE: October 31, 1996
RE: Story Road/Kissimmee Ave. and Marshall Farms Road/Maguire
Road Intersection Improvement Project: Rimas Holdings,
Inc. Temporary Construction Easements, Parcels 706 and
708
Pursuant to Agenda Item VI(E) of the August 20, 1996 agenda,
the Ocoee City Commission authorized the Mayor to execute Temporary
Construction Easement Agreements for Parcels 706 and 708, owned by
Rimas Holdings, Inc. Temporary construction easements on Parcels
706 and 708 were needed to tie-in the two driveways on the Rimas
Holdings property with the proposed roadway improvements.
Upon receipt of the City's offer to purchase the easements for
$250. 00 each, the property owner notified the City Engineer that
the City's proposed plans would interfere with the present use of
the property. Rimas Holdings operates a car hauling business which
uses very large car carrier semi-rigs. These vehicles have only
six inches of clearance. The City's roadway plans included some
increased elevation of Maguire Road which would inhibit the ability
of these rigs to access the Rimas Holdings property. The City
staff investigated the matter and concluded that Rimas had raised
valid concerns regarding the Project impact.
Professional Engineering Consultants has prepared a revised
plan which would eliminate the access issues raised by Rimas
Holdings. The proposal involves a substantial amount of paving to
be done on the Rimas driveways and parking lot in order to
eliminate any radical changes in grade. The proposal also includes
the installation of two trench drains and associated piping to
eliminate any drainage issues caused by the increased elevation of
ESTABLISHED 1 8 4 2
A MEMBER OF GLOBALEX WITH MEMBER OFFICES IN BERLIN,BRUSSELS,DRESDEN,FRANKFURT,LONDON,PARIS,SINGAPORE,STUTTGART AND TAIPEI 617
the roadway. PEC has estimated the cost of implementing this
proposal to be $28, 600.00. The construction of these improvements
will also necessitate the relocation of some chain link fencing on
the Rimas Holdings property. It is recommended that the City
reimburse Rimas Holdings for the cost of the fence relocation in an
amount not to exceed $2, 100.
Attached is a proposed Temporary Construction Easement
Agreement which incorporates the revised plan prepared by PEC and
will allow the City to proceed with the Project without an adverse
impact on the Rimas property. The property owner has agreed to
waive payment by the City, of any compensation for the use of the
easement in light of the substantial improvements the City will be
constructing on its property. Rimas Holdings has, however,
insisted on payment of its reasonable attorneys' fees in an amount
not to exceed $2,760.00.
These temporary construction easements are the last two
parcels needed in order to begin construction of the Project. The
City's original plans would have virtually eliminated the ability
of the property owner to access the property as it is presently
used due to the increased elevation of Maguire Road. Although the
property owner would have no entitlement to business damages in a
condemnation due to length of occupation requirements, it is the
opinion of counsel that the diminished access would have resulted
in a substantial severance damage award. By statute, the City
would have also been responsible for expert costs and attorneys'
fees. It is estimated that the owner's potential damages plus
costs and attorneys' fees would well• exceed the amount of money
proposed to be spent in eliminating any adverse impact of the
Project on the Rimas property.
The City Manager and City Engineer concur with our
recommendation that the City enter into the proposed Temporary
Construction Easement Agreement and proceed based upon the revised
plan.
Due to logistical complications, the Agreement has not yet
been executed by Rimas Holdings. The attached letter from Marchena
& Graham, counsel for Rimas, indicates that the terms of the
agreement have been agreed to by Rimas Holdings and that the
President of Rimas Holdings intends to execute the Agreement upon
his return to Florida.
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Recommendation:
It is respectfully recommended that the Mayor and City
Commissioners approve the Temporary Construction Easement Agreement
between Rimas Holdings, Inc. and the City with respect to Parcels
706 and 708 and authorize execution thereof by the Mayor and City
Clerk.
MAD/lw
Enclosure
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10/31/1996 18:12 4072818564 MARCHENA AND GRAHAM PAGE 02
MARCHENA AND GRAHAM,P.A.
ArroxxaY3 AT LW
233 SOUTH SRMORAN BLVD.
ORLANDO,FLORIDA 32807
ALBERTO S.HusTAMANTE,III TELEPHONE(407)63.4566
KEITH A.GRAHAM TELECOPIER(407)281-5564
MARCOS R.MARC8RNA
October 31, 1996
Y.A.E6friataideit4Hig
Mary A.Doty, Esquire
Foley&Lardner
111 N. Orange Avenue, Suite 1800
Post Office Box 2193
Orlando, Florida 32802
RE: City of Ocoee/Rimas Holdings
Dear Mary:
This letter will confirm our telephone conversation wherein I informed you that my
clients had reviewed and agreed to the terms of the proposed Non-Exclusive Temporary
Easement Agreement which included my latest revisions. As we further discussed, the City
of Ocoee will reimburse my clients the amount of$2,100.00 for relocating the fence across
the front of the property and$2,760.00 for attorneys fees incurred in my representation. The
fence reimbursement check should be made payable to Rimas Holdings,Inc. and the attorneys
fee check should be made payable to March na and Graham,PA and both should be directed
to my attention You may communicate directly with Penny Masney at (407)877-8882,
during my absence on November 1, 1996 to attempt to forward the completed agreement to
Richard Masney,who is the President and Secretary of Rimas Holdings, Inc., for execution.
Very truly yours, •
Keith A. Graham
KAG/faw
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THIS INSTRUMENT WAS PREPARED BY
AND SHOULD BE RETURNED TO:
Mary A. Doty, Esq.
FOLEY & LARDNER
111 North Orange Ave. , Ste 1800
PO Box 2193
Orlando, FL 32802-2193
(407)423-7656
NON-EXCLUSIVE TEMPORARY EASEMENT AGREEMENT
THIS NON-EXCLUSIVE TEMPORARY EASEMENT AGREEMENT is made and
entered into this day of , 1996, by and
between Rimas Holdings, Inc. , a Florida corporation, whose address
is P.O. Box 1595, Winter Garden, FL 34777 (hereinafter referred to
as the "Grantor") , and the CITY OF OCOEE, a Florida municipal
corporation, whose address is 150 N. Lakeshore Drive, Ocoee, FL
34761 (hereinafter referred to as the "Grantee") .
WITNESSET H:
WHEREAS, Grantor is the owner of that certain real property
located in Orange County, Florida, as more particularly described
in Exhibit A attached hereto and incorporated herein by reference
(the "Parent Tract") ; and
WHEREAS, the City is a Florida municipal corporation that is
authorized to exercise condemnation powers pursuant to Chapter 166,
Florida Statutes; and
WHEREAS, the City is constructing the Story Road/Kissimmee
Avenue and Marshall Farms/Maguire Road Intersection Improvement
Project ("the Project") and in connection therewith needs to
acquire from the Grantor a non-exclusive temporary easement over,
upon and across a portion of the Parent Tract as depicted on
Exhibit B (the "Easement Property") for the specific and limited
purposes hereinafter set forth; and
WHEREAS, the City has advised Grantor that if the City and the
Grantor do not enter into an agreement for the purchase and sale of
an easement across the Easement Property that the City intends to
use its power of eminent domain to condemn its required easement
interest in the Easement Property; and
WHEREAS, the City acknowledges that the acquisition by the
City of an easement across the Easement Property may affect the
ability of Grantor and its licensees to access the Parent Tract .
with tractor/trailer car hauler rigs, which is Grantor's present
use of the Parent Tract; and
WHEREAS, Grantor, under threat of condemnation, has agreed to
convey to the City an easement across the Easement Property, under
the terms and conditions stated below, so that the City may
complete the Project and mitigate any and all damages to the Parent
Tract caused or which may be caused by the City's construction of
the Project; and
WHEREAS, the City has represented to the Grantor that the
improvements and alterations to be constructed as part of the
Project will result in the Parent Tract having access and drainage
which is at least equal to the existing access and drainage on the
Parent Tract; and
WHEREAS, the City acknowledges and agrees that the Grantor has
not hired an engineer and is relying upon the City's
representations in entering into this agreement.
NOW, THEREFORE, in consideration of the mutual covenants,
promises, terms and conditions set forth herein, and for other good
• and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
Section 1. The above recitals are true and correct, form
a material part of this Easement Agreement and are incorporated
hereby by reference.
Section 2. Grantor hereby gives, grants, bargains, sells
and conveys to Grantee a non-exclusive temporary easement over,
upon and across the Easement Property for the purposes hereinafter
stated, all subject to the terms, conditions and limitations set
forth. herein.
Section 3 . Grantor hereby warrants and guarantees to
Grantee that Grantor has fee title to . the Easement Property,
subject to easements, reservations, restrictions and rights-of-way
of record, if any, and the Grantor has full power and authority to
grant this Easement as to the Easement Property.
Section 4. Grantee's use of the Easement Property shall
be for the purpose of -Grantee, through itself, its agents,
contractors, consultants and employees: (a) performing such
activities on the Easement Property as Grantee may deem reasonably
necessary in connection with the design, engineering and
construction of improvements to the Easement Property as set forth
in Section 5 below; (b) tying in and harmonizing the Easement
Property and the driveways, walkways and other improvements thereon
with the construction of the Project undertaken by the City in
conjunction with the aforesaid activities on the Easement Property;
and (c) performing such activities on, the Easement Property as
Grantee may deem reasonably necessary to mitigate any and all
damages caused to the Parent Tract by the City's construction of
the Project. Notwithstanding the foregoing, this Easement is
granted upon the condition that the sloping, grading and paving
upon the Easement Property shall not extend beyond the Easement
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Property and that all work will be performed in such a manner that
existing structural improvements will not be damaged.
Section 5. As full and complete compensation to the
Grantor for the value of the easement interest in the Easement
Property, the City shall perform the following as part of the
construction of the Project:
a. Paving of the Easement Area as shown
on Plan Sheet 17 of the Project
Plans prepared by Professional
Engineering Consultants, Inc.
attached as Exhibit B.
b. Installation of trench drains and
piping on the Easement Property as
shown on Exhibit B.
c. Installation of curbing on the
Easement Property shown on Exhibit
B.
d. Payment by the City of the actual
cost of any existing fence .
relocation necessitated by the
Project in an amount not to exceed
$2, 100.00.
Section 6. This Easement is non-exclusive, and Grantor
reserves to itself, its successors and assigns, the non-exclusive
right to use, pass and repass over and upon the Easement Property.
Each party shall use the rights granted and reserved by this
Easement Agreement with due regard to the rights of the other party
to use and enjoy the Easement Property. Notwithstanding anything
to the contrary in this agreement, Grantee shall conduct its
activities in such a manner as to allow continuous access of
tractor/trailer car hauler rigs by Grantor and its licensees during
construction.
Section 7. This Easement Agreement shall terminate upon
the completion of the improvements on the Easement Property set
forth in Section 5 above and the tying in and harmonizing the
driveway connections and improvements to that portion of Maguire
Road adjacent to the Easement Property.
Section 8. Grantee shall, at its sole cost and expense,
restore any improvements on the Easement Property that are damaged
by Grantee incident to its construction of the Project to a
condition which approximates as closely as is reasonably
practicable the condition of said improvements prior to being
damaged by Grantee; provided, however, that Grantee shall not be
3
responsible for replacement or relocation of the Fence located on
the Easement Property.
Section 9. To the extent permitted by law, the Grantee
agrees to indemnify and hold harmless the Grantor from and against
any and all claims, actions, causes of action, loss, damage,
injury, liability, cost or expense, including without limitation
attorneys' fees (whether incurred before, during or after trial, or
upon any appellate level) , arising from the Grantee's use of the
Easement Property or from the exercise by the Grantee of any rights
granted by this Easement Agreement.
Section 10. This Easement Agreement shall be binding
upon and inure to the benefit of the parties specified herein,
their respective legal representatives, successors and assigns, and
the benefits and burdens hereof shall -run with the Easement
Property.
Section 11. This Easement Agreement may be modified or
amended only upon the mutual written consent of Grantee and
Grantor, or their respective legal representatives, successors and
assigns.
Section 12. By executing this agreement Grantor does
not waive any claims it has for any loss of property rights which
are not specifically included in this Non-Exclusive Temporary
Easement Agreement.
IN WITNESS WHEREOF, the parties hereto have subscribed their
names and have caused this Easement Agreement to be executed as of
the day and year first above written.
Signed, sealed and delivered GRANTOR:
in the presence of:
RIMAS HOLDINGS, INC.
a Florida corporation
Printed Name:
By:
Printed Name:
Name:
Title:
[Corporate Seal]
4
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this
day of 1996 by as
of Rimas Holdings, Inc. , a Florida corporation.
Such person (notary must check applicable box) :
❑ is/are personally known to me.
❑ produced a current Florida driver's license as identification.
❑ produced as identification.
[AFFIX SEAL]
Signature of Notary
Name of Notary (typed,Printed or Stamped)
Commission Number(if not legible on seal):
My Commission Expires(if not legible on seal):
Signed, sealed and delivered GRANTEE:
in the presence of:
CITY OF OCOEE, a Florida
municipal corporation
Printed Name:
By:
Printed Name: Name: S. Scott Vandergrift
Title: Mayor
Attest:
Name: Jean Grafton
Title: City Clerk
[Affix Seal]
FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY
THE CITY OF OCOEE, APPROVED AS COMMISSION AT A MEETING HELD
TO FORM AND LEGALITY THIS ON , 1996
DAY OF , 1996: UNDER AGENDA ITEM NO.
By:
City Attorney
5
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this
day of 1996 by S. Scott Vandergrift and Jean Grafton
as Mayor and City Clerk, respectively, of the City of Ocoee,
Florida. Such person: (notary must check applicable box)
❑ is/are personally known to me.
❑ produced a current Florida driver's license as identification.
❑ produced as identification.
[AFFIX SEAL]
Signature of Notary
Name of Notary (Typed,printed or stamped)
Commission Number(if not legible on seal):
My Commission Expires(if not legible on seal):
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From the Southeast corner of the Northeast 1/4 of the
Southeast 1/4 of Section 19, Township 22 South, Range
g8 East,. Run South 89°23'12" West along the 40 acre
line a distance• of 1057.78 feet for a point of
beginning; run thence South 89°23'12"West a distance
of 218.04 feet; thence North 22°51'31" East a distance
of 394.58 feet to a point on the South right-of-way
line of Maguire Road Extension; thence South 67°08'29"
East along said right-of-way line a distance of 200
feet; thence South 22°51'31" West a distance of 307.74
feet to the point of beginning.
EXHIBIT A