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HomeMy WebLinkAboutIII (D) Approval and Authorization for Mayor and City Clerk to Execute a Non-Exclusive Temporary Easement with Rosa Rutherford re Professional Parkway/Old Winter Garden Widening Project Agenda 11-19-2002 Item III D FOLEY : LARDNER ATTORNEYS AT LAW III NORTH ORANGE AVENUE,SUITE 1800 ORLANDO.FLORIDA 32B01-2386 P.O.BOX 2193 ORLANDO,FLORIDA 32802-2193 TELEPHONE.407 423 7656 FACSIMILE 407.646.1743 V WW.FOLEYLARDNER.COM MEMORANDUM CLItNIMATTER NUMBER TO: The Honorable Mayor and City Commissioners of the City of Ocoee FROM: Mary A. Doty, Assistant City Attorney THROUGH: Paul E. Rosenthal, City Attorney DATE: November 12, 2002 RE: Professional Parkway/Old Winter Garden Road Widening Project Based on the Project design prepared by PEC, the City needs to acquire a Non- Exclusive Temporary Easement Agreement from Rosa Rutherford, a property owner along Old Winter Garden Road. Ms. Rutherford has agreed to grant this interest at no cost to the City. Attached are two original Non-Exclusive Temporary Easement Agreements which have been executed by Rosa Rutherford. City staff, however, recommends the payment of$250.00 to Ms. Rutherford to cover her costs incurred in reviewing and finalizing the agreement. RECOMMENDATION: It is respectfully recommended that the Mayor and City Commissioners approve: 1. The Non-Exclusive Temporary Easement Agreement authorizing execution thereof by the Mayor and City Clerk; and 2. The payment of$250.00 to Rosa Rutherford to cover her costs in reviewing and executing the agreement. cc: Jim Gleason, City Manager David Wheeler, City Engineer FOLEY S.LARDNER FOLEY : LARDNER ATTORNEYS AT LAW 111 NORTH ORANGE AVENUE, SUITE 1800 ORLANDO.FLORIDA 32801 2386 P-O-BOX 2193 ORLANDO. FLORIDA.32802-2193 TLLEHONE:40/.423./666 FACSIMILE.40/.648.1/43 W W W.F OLLY LARD N ER.COM MEMORANDUM CI 15NT MATTER NUMBER R22377.0568 TO: The Honorable Mayor and City Commissioners of the City of Ocoee FROM: Mary A. Doty, Assistant City Attorney4 THROUGH: Paul E. Rosenthal, City Attorney DATE: November 12, 2002 RE: Professional Parkway/Old Winter Garden Road Widening Project Based on the Project design prepared by PEC, the City needs to acquire a Non- Exclusive Temporary Easement Agreement from Rosa Rutherford, a property owner along Old Winter Garden Road. Ms. Rutherford has agreed to grant this interest at no cost to the City. Attached arc two original Non-Exclusive Temporary Easement Agreements which have been executed by Rosa Rutherford. City stall, however, recommends the payment of 5250.00 to Ms. Rutherford to cover her costs incurred in reviewing and finalizing the agreement. RECOMMENDATION: It is respectfully recommended that the Mayor and City Commissioners approve: 1. The Non-Exclusive Temporary Easement Agreement authorizing execution thereof by the Mayor and City Clerk; and 3. The payment of$250.00 to Rosa Rutherford to cover her costs in reviewing and executing the agreement. cc: Jim Gleason, City Manager David Wheeler, City Engineer FOLEY & LARDNER 006.276132.1 THIS INSTRUMENT PREPARED BY AND SHOULD BE RETURNED TO: Mary A. Doty, ISsq. FOLEY& LARDNER I I I North Orange Avenue, Suite 1800 Post Office Box 2193 Orlando,FL 32 8 02-21 9 3 (407)423-7656 For Recording Purposes Only TCE-7I4 NON-EXCLUSIVE TEMPORARY EASEMENT AGREEMENT THIS NON-EXCLUSIVE TEMPORARY EASEMENT AGREEMENT is made and entered into this day of 2002, by and between Rosa Rutherford, whose address is 11497 W. FR 76, Ashgrovc, MO 65604, (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"). WITNESS ET 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 "Easement Property"); and WHEREAS, Grantee has requested, and Grantor has agreed to grant and convey to Grantee, a non-exclusive temporary easement over, upon and across the Easement Property for the specific and limited purposes hereinafter set forth. 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 Agreement and are incorporated herein by reference. Section 2. Grantor hereby gives, grants, bargains, sells, and coveys to Grantee a non-exclusive temporary easement over, upon and across the Easement property for the purposes hereinafter stated (the "Easement"), 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 a certain roadway known as Professional Parkway/Old Winter Garden Road which is located adjacent to and in the vicinity of the Easement Property, and (b) tying in and harmonizing the Easement Property and the driveways, walkways, and other improvements thereon with the construction of the Professional Parkway/Old Winter Garden Road Widening Project (the "Project") undertaken by the City in conjunction with the aforesaid activities on the Easement Property. Notwithstanding the foregoing, this Easement is granted upon the condition that the sloping and/or grading upon the Easement Property shall not extend beyond the Easement Property and that all grading or sloping shall conform to all existing structural improvements within the Easement Property and all work will he performed in such a manner that existing structural improvements will not be damaged. Section 5. 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. Section 6. The Easement shall terminate upon the earlier of (a) the completion of the construction of the Project as certified by the City, or (b) December 31, 2005. Section 7. 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. Section S. 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 9. To the extent that any rules, regulations or ordinances of the Grantee or any previously existing development approvals or any agreement between the 2 Grantor (or its predecessors in interest) and the Grantee require that certain improvements, including but not limited to walls, signage, landscaping, irrigation and berming, be constructed or installed within all or any portion of the Easement Property, the Grantor agrees that it shall not construct or install any such improvements within the Easement Property until the earlier of (i) the date of termination of this Easement Agreement, or (ii) the written approval by the Grantee of a specific improvement within the Easement Property. The aforementioned restrictions may be waived by Grantee in whole or in part, at the Grantee's option. The Grantor may from time-to-time request the approval of Grantee to construct or install certain improvements within the Easement Property and Grantee covenants and agrees to grant such approval unless the Grantee makes a good faith determination that such improvement will interfere with the exercise by Grantee of its rights and privileges under the terms of this Easement Agreement. Grantee covenants and agrees that it will not defer or delay the issuance to Grantor of any building permits, certificates of completion or certificates of occupancy because of the inability of the Grantor to complete improvements within the Easement Property due to the restrictions imposed by this Easement Agreement; provided. however, that the Grantor shall, at Grantor's sole cost and expense, promptly complete any such deferred or delayed improvements upon the termination of this Easement Agreement or the waiver of such restriction by the Grantee. Nothing contained in this Section shall be construed to release or discharge the Grantor from any of its obligations and responsibilities with respect to improvements to be constructed or installed within the Easement Property. This Section is intended only to affect the timing of the Grantor's compliance with any such obligations and responsibilities. Section 10. The Easement 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 he modified or amended only upon the mutual written consent of Grantee and Grantor, or their respective legal representatives, successors and assigns. 3 IN WITNESS WHEREOF, the parties hereto have subscribed their names and have caused this Easement Agreement to he executed as of the day and year first above written. Signed, sealed and delivered GRANTOR: in the presence of Print Name ROSA RUTHERFORD Print Name STATE OF COUNTY OF The foregoing instrument was acknowledged before me this day of 2002, by ROSA RUTIIERFORD. She is ❑ personally known to me or has produced as identification. WITNESS my hand and official seal in the County and State aforesaid this day of 2002. Notary Public Print Name My Commission Expires: 4 Signed, sealed and delivered GRANTEE: in the presence of: CITY OF OCOEE, a Florida municipal corporation By: Print Name Name: S. Scott Vandergrift Title: Mayor Print Name Attest: Name: Jean Grafton 'fide: City Clerk [Affix Seal] FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY THE CITY OF OCOEE, FLORIDA. COMMISSION AT A MEETING HELD APPROVED AS TO FORM AND ON , 2002 LEGALITY THIS DAY OF UNDER AGENDA ITEM NO. 2002. By: Foley & Lardncr Assistant City Attorney STATE OF FLORIDA COUNTY OF ORANGE 'Ihc foregoing instrument was acknowledged before me this day of 2002, by S. Scott Vandcrgrift, as Mayor of the City of Ocoee. Ile is ❑ personally known to me or ❑ has produced as identification. WITNESS my hand and official seal in the County and State aforesaid this day of 2002. Notary Public Print Name My Commission Expires: 5