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HomeMy WebLinkAboutItem 09 (a) Foote Property - Preliminary/Final Subdivision Plan AGENDA ITEM COVER SHEET Contact Name: Contact Number: Meeting Date: November 1 , 2005 Item # -9 Q /J./J-,f Reviewed By: Catherine Armstrofrg( VC-D rt t D' t PI ' M epa men Irec or: anmng anager X 1020 City Manager: Subject: Prelimi~ary/Final Subdivision Plan for Foote Residential Property Issue: Should the Mayor and City Commissioners approve the Preliminary/Final Subdivision Plan for the Foote Residential Property (and one waiver) subject to the right-of-way vacations for Cumberland Avenue and Washington Street? / Background I Discussion: The Foote property is located on the northwest corner of Bluford Avenue and Orlando Avenue. The developer is proposing to develop the property with four residential single-family lots averaging % acre in size. Septic tanks will be provided for the four lots and water will be provided by the City of Ocoee. The developer is dedicating ten feet of right-of-way along Bluford Avenue to the City for future roadway ,improvements, Of these ten feet, five feet will be comprised for a sidewalk installed by the developer, The applicant is requesting one waiver in regards to providing reclaimed water service, The City Engineering Department advised the developer to request this waiver because the City has no intentions to provide reclaimed water lines within the near future, The applicant is also processing two right-of-way vacations for Washington Street and Cumberland Avenue. Recommendation: Staff respectfully recommends that the Mayor and City Commissioners approve the Preliminary/Final Subdivision Plan for the Foote Residential Property, as date stamped received by the City on September 30, 2005, including the waiver request, subject to the approval of the ROW vacations for Cumberland Avenue and Washington Street and the execution of the Drainage and Stormwater Agreement and Non-Exclusive Temporary Construction Easement Agreement. Attachment: Staff Report Location Map Future Land Use Map Zoning Map Drainage and Stormwater Agreement Non-Exclusive Temporary Construction Easement Agreement Financial Impact: None known, Type of Item: D Public Hearing D Ordinance First Reading D Ordinance First Reading D Resolution i:8J Commission Approval D Discussion & Direction For Clerk's Deot Use: D Consent Agenda i:8J Public Hearing D Regular Agenda o Original Document/Contract Attached for Execution by City Clerk o Original Document/Contract Held by Department for Execution Reviewed by City Attorney Reviewed by Finance Dept. Reviewed by ( ) ~ N/A ~ N/A ~ N/A City Manager Robert Frank Commissioners Danny Howell. District 1 Scott Anderson. District 2 Rusty Johnson. District 3 Nancy J, Parker. District 4 Mayor S, Scott Vandergrift STAFF REPORT TO: Catherine Armstrong, Planning Manage FROM: THROUGH: Russ Wagner, AICP, Community Development Director ~ DATE: October 20, 2005 RE: Foote Residential Property Preliminary/Final Subdivision Plan Project # LS-2005-003 Commission District - Rusty Johnson ISSUE Should the Mayor and City Commissioners approve the Preliminary/Final Subdivision Plan for the Foote Residential property? BACKGROUND / DISCUSSION The Foote property is located on the northwest comer of Bluford Avenue and Orlando Avenue. To the south is the City of Ocoee Fire Station #1. The subject property comprises 2.72 acres, is zoned Single Family R-1AA and is designated as Low Density Residential on the Future Land Use Map (FLUM). The site is undeveloped with scattered oak trees. To the north of the subject property is the 60' right-of-way associated with Washington Street which is proposed to be vacated with the development of the Foote Property. Additionally, to the west of the subject property is 60' of right-of-way associated with Cumberland Avenue, which is also proposed to be vacated with the development of the subject property. The 60' will comprise the majority of Lot 4. The Foote property is proposed to be developed with four residential single-family lots averaging ~ acre in size each. The minimum lot size for the respective zoning district (R-1AA) is 9,000 square feet; front setback is 25 feet; side setback is 7.5 feet and rear setback is 30 feet. Minimum living area proposed by the developer is 1,400 square feet. Septic tanks will be provided for the four lots, and water will be provided by the City of Ocoee. The developer is dedicating 10 feet of right-of-way along Bluford Avenue to the City of Ocoee for future roadway improvements. Of these 10 feet, 5 feet will be comprised of a sidewalk installed by the developer. Access into lot #1-3 will be from Orlando Avenue and lot #4 will gain access from the north side of the property at Cumberland Avenue. Five-foot sidewalks are proposed along the property frontage on Orlando Avenue. Water retention is proposed via a master stormwater pond. This pond will tie into the existing City of Ocoee water retention pond located adjacent to the fire station. The applicant is requesting one waiver as follows: Article 2, Section 174-7B: Single-family home development approved for construction after June 7, 1994, shall include reclaimed water distribution mains and shall connect to the system when reclaimed water service becomes available. The justification for the waiver is based on discussions with the City Engineering Department, which indicated that the City has no intention to provide reclaimed water lines within the near future. As mentioned previously, the applicant is also processing two right-of-way vacation requests for the 60 feet of Washington Street and 60 feet of Cumberland Avenue. This application is being processed simultaneously with the PreliminarylFinal Site Plan and will be both heard by the City Commission on November 1,2005. DEVELOPMENT REVIEW COMMITTEE RECOMMENDATION The Development Review Committee (DRC) met on September 28, 2005 and reviewed the Preliminary/Final Subdivision Plan. Staff discussed with the applicant outstanding comments from the City Attorney relating to the Drainage and Stormwater Agreement between the applicant and the City of Ocoee. It was determined that the Public Works Department should coordinate the outstanding comments with the applicant in order to revise them prior to the City Commission meeting on November 1, 2005. The Utilities Department raised concerns regarding the lack of an additional fire hydrant at the end of Orlando Avenue. The applicant agreed to provide the additional fire hydrant. The DRC voted unanimously to recommend approval of the Preliminary/Final Subdivision Plan including the proposed waiver, subject to the approval of the ROW vacations for Cumberland Avenue and Washington Street; Public Works Department working out the Drainage and Stormwater Agreement with the applicant; and subject to the installation of the fire hydrant at the end of Orlando Avenue. The applicant has revised the plans on September 30, 2005 showing the new fire hydrant. PLANNING AND ZONING COMMISSION DISCUSSION On October 11, 2005, the Planning and Zoning Commission held a public hearing to consider the proposed Preliminary/Final Subdivision Plan for the Foote Residential Property. There was no one from the public to speak regarding this request. The City staff and the applicant of the project answered several questions regarding access into the home sites, traffic flow and stormwater drainage. A concern was raised about removing some existing traffic signage ("Do Not Enter") in order to facilitate the proposed subdivision. Staff agreed to research the plans in order to ensure that signage is removed accordingly. The Planning and Zoning Commissioners also raised concerns about the proposed residential lots being on individual septic system instead of sanitary sewer system. Additionally, it was pointed out that the City's Fire Station is connected to a sewer system. Therefore, the Planning and Zoning Commission inquired about the possibilities of connecting the residential lots to the sewer system. Staff agreed to research the matter with the City Engineering Department. After finishing its deliberations, the Planning and Zoning Commission voted to approve (7-1) the Foote Residential Property Preliminary/Final Subdivision Plan, as date stamped by the City received September 30, 2005, including the proposed waiver, subject to the approval of the ROW vacations for Cumberland Avenue and Washington Street and the execution of the Drainage and Stormwater Agreement and the Non-Exclusive Temporary Construction Easement Agreement. Additionally, the City Engineering Department offered the following response to the sewer availability question: The Foote Property located at the comer of Bluford Avenue and Orlando Avenue was not required to connect to the City sewer due to the lift station located at Fire Station #1 being located and sized in a manner that makes connecting to the lift station in feasible. The fire station is the only property in the area that is connected to City sewer, and at the time the fire station was designed, there were no plans for development of the Foote Property. ST AFF RECOMMENDATION Based on the recommendation of the DRC and Planning and Zoning Commission, Staff respectfully recommends that the Mayor and City Commissioners approve the Preliminary/Final Subdivision Plan for the Foote Residential Property, as date stamped received by the City on September 30,2005, including the one waiver request, subject to the approval of the ROW vacations for Cumberland Avenue and Washington Street and the execution of the Drainage and Stormwater Agreement and the Non-Exclusive Temporary Construction Easement Agreement. 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[~ . . . .. .- - - s -~ ."jl t"l H LJ ~. L ~ .~ :=c 1.00- - fJ --.......t - ..... IT 'T - ;:a g) !- .cr: 2 I-- I t::~ ~ ~Z~ - D ~ , - . " -. . - -- '" JlJLJ .>' . - ,A.t\ - V - " ~ t... ~ ~ ~ ~ - PJ !l. ( 11\) =:::: )> ,. ~..... I " - III I ~ - A. ..,. - _ A/)- . , ~M{ JM ( .A en"TI C 0 ", 0 ",.... o (1) c :xl ~ (1) o.tn :;. c.: c.c(1) Na o -. ~!. -. "'C ~ ", c.co :s:"C Q) (1) "C~ '< THIS INSTRUMENT PREPARED BY: Nicholas N, Palmer, Esq. FOLEY & LARDNER LLP III North Orange Avenue, Suite 1800 Post Office Box 2193 Orlando, FL 32802-2193 (407) 423-7656 AFTER RECORDING RETURN TO: For Recording Purposes Only Engineering Department CITY OF OCOEE ISO N. Lakeshore Drive Ocoee, Florida 34761 DRAINAGE AND STORMW A TER AGREEMENT THIS DRAINAGE AND STORMWATER AGREEMENT (this "Agreement") is made and entered into this _ day of ,2005 by and between GEORGE E. FOOTE, JR., whose address is 6635 Edgewater Drive, Orlando, Florida 32810 (together with his successors and assigns, hereinafter referred to as the "Owner") and the CITY OF OCOEE, a Florida municipal corporation, whose address is 150 North Lakeshore Drive, Ocoee, Florida 34761 (hereinafter referred to as the "City"). WI TN E~~E T H: WHEREAS, the Owner is the fee simple owner of real property lying and being situate in Orange County, Florida, more particularly described in Exhibit "A" attached hereto and incorporated herein (the "Foote Property"); and WHEREAS, the City is the fee simple owner of real property lying and being situate in Orange County, Florida, more particularly described in Exhibit "8" attached hereto and incorporated herein (the "Retention Pond Land"); and WHEREAS, the City has prior to the date hereof constructed a retention pond on a portion of the Retention Pond Land (the "Existing Retention Pond") that provides certain drainage and stormwater benefits to the City; and WHEREAS, Klima Weeks Civil Engineering, Inc., (the "Applicant"), as the authorized representative of the Owner, has applied to the City for approval of a preliminary/final subdivision plan for the Foote Property (the "Application"); and WHEREAS, as part of the Application review process, the Applicant has proposed to direct drainage and stormwater flow from the Foote Property to the Existing Retention Pond; and ORLA_38135Q,2 WHEREAS, to accomplish the foregoing, the Existing Retention Pond must be expanded, modified and improved (the "Expanded Retention Pond") on the Retention Pond Land; and WHEREAS, the City is willing to permit such changes to the size, configuration, and use of the Existing Retention Pond consistent with the design, engineering and construction details contained in the Approved Final Subdivision Plan (defined below), and subject to the terms, conditions and limitations of this Agreement; and WHEREAS, in furtherance of the foregoing, the City Commission of the City on , 2005 approved, subject to the execution of this Agreement, the preliminary/final subdivision plan for the Foote Property as prepared by the Applicant and date stamped as received by the City on , 2005, with such additional revisions thereto as may be reflected in the minutes of said City Commission meeting (the "Approved Final Subdivision Plan"); and WHEREAS, the Approved Final Subdivision Plan includes the design, engineering and construction details for the Expanded Retention Pond on the Retention Pond Land; and WHEREAS, the parties hereto acknowledge that each has all authority, right, and power necessary to enter into this Agreement, and that this Agreement is a valid, binding contract in accordance with its terms; and WHEREAS, the parties now wish to reduce their understanding to writing III this Agreement with respect to the matters set forth herein. NOW, THEREFORE, in consideration of the covenants stated herein and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto agree as follows: SECTION 1. Recitals, The foregoing recitals are true and correct and are incorporated herein by reference, SECTION 2. Development in Accordance with Approved Final Subdivision Plan. The Owner, through himself, his agent, contractors, consultants or his employees, and at no cost to the City whatsoever, shall construct the Expanded Retention Pond in accordance with the Approved Final Subdivision Plan and all permits and approvals issued by the City and other governmental entities. SECTION 3. Modification to Existin2: Retention Pond. (a) Easement. Contemporaneous with the execution hereof, the City shall grant a non-exclusive temporary construction easement to the Owner over the Retention Pond Land to construct and expand the Expanded Retention Pond in accordance with the Approved Final Subdivision Plan. The easement shall be in a form acceptable to the City and shall be recorded, at Owner's expense, in the Public Records of Orange County, Florida. (b) Construction and Bond. Prior to the commencement of any such construction activities, the Owner shall provide a completion and payment 2 ORLA_381350.2 bond in an amount equal to 115% of the estimated cost of completing construction of the Expanded Retention Pond and otherwise be in compliance with the requirements of the City's Land Development Code. The City shall cooperate in obtaining all necessary permits and in taking all other actions necessary to facilitate the construction of the Expanded Retention Pond. (c) Existin2 Draina2e. During the course of construction of the Expanded Retention Pond, the Owner agrees to take all actions that are necessary to assure that the Existing Retention Pond continues to provide drainage and stormwater capacity for the City of Ocoee Fire Department and other property adjacent thereto. (d) Fill Material. The Owner, at Owner's expense, shall be responsible for the removal from the Retention Pond Land of any fill material generated as a result of the construction of the Expanded Retention Pond. (e) Liens and Encumbrances. The Owner shall keep the Retention Pond Land free and clear of all liens and encumbrances. SECTION 4. Maintenance of Expanded Retention Pond. (a) Operation and Maintenance of Existin2 Retention Pond. From the date that the Owner commences construction of the Expanded Retention Pond until the date on which a Certificate of Completion is issued by the City for the Expanded Retention Pond (the "Construction Period"), the Owner shall adequately and lawfully operate, maintain and repair, at its expense, the Existing Retention Pond and the Expanded Retention Pond in accordance with applicable state and local laws and in accordance with this Agreement. (b) Operation and Maintenance of Expanded Retention Pond. At the time the City issues a Certificate of Completion for the Expanded Retention Pond, the City will assume operation and maintenance responsibilities with respect to the Expanded Retention Pond. Thereafter, the Owner shall be relieved of all operation and maintenance responsibility for the Expanded Retention Pond, subject to the provisions of Paragraph 4( d) hereof. (c) Control bv City. During the Construction Period, should the Owner fail to properly operate, maintain or repair the Existing Retention Pond, the Retention Pond Land, or the Expanded Retention Pond in accordance with all applicable requirements or fail to maintain insurance as set forth below, then the City shall have the right to take such actions as are reasonably necessary to correct the violations and may charge the Owner. The Owner shall reimburse the City for the reasonable and actual costs thereof within thirty (30) days of receipt of an invoice for any such expenses incurred by the City. (d) Failure of Pond. If at any time after the Construction Period, the Expanded Retention Pond fails to function in any manner whatsoever, including but not limited to design failures, the City may do either of the following, in its sole and absolute discretion: 3 ORLA_381350.2 (i) The City may take such actions as are reasonably necessary to correct the failures and may charge the Owner. The Owner shall reimburse the City for the reasonable and actual costs thereof within thirty (30) days of receipt of an invoice for any such expenses incurred by the City. (ii) The City may require the Owner to take such actions as are reasonably necessary to correct the failures of the Expanded Retention Pond to the City's reasonable satisfaction. If the City desires to require action by the Owner hereunder, it will provide written notice to the Owner describing the failures of the Expanded Retention Pond. The Owner agrees to complete all actions required to correct the failure of the Expanded Retention Pond within ninety (90) days of receiving such notice and will be responsible for all costs associated therewith. (e) Insurance. The Owner shall at all times during the Construction Period maintain liability insurance with respect to the Retention Pond Land in the amount of $1,000,000.00 (or such greater amount as may reasonably be required by the City) naming the City as an additional insured. The City shall be provided with a Certificate of Insurance which provides that such insurance will not be cancelled without at least thirty (30) days notice to the City. SECTION 5. Future Modifications to Expanded Retention Pond. The City, at its sole option, may elect to have the Expanded Retention Pond further modified and/or enlarged in the future without any requirement to amend the Approved Final Subdivision Plan and without the consent and approval of the Owner, so long as the resulting pond as modified in the future continues to store, handle and attenuate the drainage and stormwater flow from the Foote Property. SECTION 6. On-Site Facilities. This Agreement shall not be construed to relieve the Owner of his independent obligations to design, engineer, permit and construct, at his sole cost and expense, such on-site collection systems as may be necessary to connect other lands to the retention pond and certain other drainage facilities and appurtenances as set forth in the Approved Final Subdivision Plan, and to convey stormwater from the Foote Property to said facilities. SECTION 7. Exclusive Benefit. This Agreement is for the exclusive benefit of the Foote Property. SECTION 8. Mutual Use. The City and the Owner mutually agree to abide by all applicable laws, statutes, ordinances, rules and regulations relating to their respective uses of the Retention Pond Land and the Expanded Retention Pond. SECTION 9. Use without Interference. Except as expressly set forth herein, the City reserves the right to utilize the Retention Pond Land for any purpose, including but not limited to 4 ORLA_381350.2 public recreation uses, which does not interfere with the use of the Retention Pond Land by Owner for the purposes set forth herein. SECTION 10. Release. The Owner hereby releases and discharges the City from any and all liability , claims, rights, demands, causes of action, judgments, executions, debts and obligations of whatsoever kind or nature, whether based on tort, contract, or any other form of relief, which the Owner has ever, now has, or may ever have, whether or not such claims are known or unknown, which arise directly or indirectly from any failure of the Expanded Retention Pond to function in any manner whatsoever, including but not limited to design or maintenance failures. SECTION 11. Indemnity. The Owner agrees to indemnify, defend and hold harmless the City 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 Owner's use of the Retention Pond Land, the construction of the Expanded Retention Pond, or from the exercise by the Owner of any rights granted by this Agreement. SECTION 12. Covenant Runnin2 with the Land. This Agreement shall run with the Foote Property and shall inure to and be for the benefit of the parties hereto and their respective successors and assigns and any person, firm, corporation, or entity who may become the successor- in-interest to the Foote Property or any portion of thereof. SECTION 13. Notice. Any notice delivered with respect to this Agreement shall be in writing and be deemed to be delivered (whether or not actually received) (i) when hand delivered to the person(s) hereinafter designated, or (ii) the business day immediately following the date on which such notice is sent by next-day delivery or courier service, addressed to a party at the address set forth opposite the party's name below, or to such other person or address as the applicable party shall have specified, from time to time, by written notice to the other party delivered in accordance herewith: Owner: George E. Foote, Jr. 6635 Edgewater Drive Orlando, FL 32810 City: City of Ocoee Attention: City Manager 150 North Lakeshore Drive Ocoee, FL 34761-2258 SECTION 14. Attornevs' Fees. In the event that either party finds it necessary to commence an action against the other party to enforce any provision of this Agreement or because of a breach by the other party of any terms hereof, the prevailing party shall be entitled to recover from the other party its reasonable attorneys' fees, paralegal fees and costs incurred in connection therewith, at both trial and appellate levels, including bankruptcy proceedings, without regard to whether any legal proceedings are commenced or whether or not such action is prosecuted to judgment. 5 ORLA_381350.2 SECTION 15. Amendments. No amendment, modification or other change in this Agreement shall be binding upon the parties unless in writing an executed by all the parties hereto. SECTION 16. Specific Performance. Both the City and the Owner shall have the right to enforce the terms and conditions of this Agreement by an action for specific performance. SECTION 17. Applicable Law. This Agreement and the provisions contained herein shall be construed, controlled and interpreted according to the laws of the State of Florida, with venue in the Circuit Court in and for Orange County, Florida. SECTION 18. Time is of the Essence. Time is hereby declared of the essence to the lawful performance of the duties and obligations contained in this Agreement. SECTION 19. Further Documentation. The parties agree that at any time following a request therefore by another party, each shall execute and deliver to the other party such further documents and instruments, in form and substance reasonably necessary to confirm and/or effectuate the obligations of each of the parties hereunder. SECTION 20. A2reement: Amendment. This Agreement, along with the Approved Final Subdivision Plan, constitute the entire agreement between the parties, and supersedes all previous discussions, understandings and agreements, with respect to the subject matter hereof. Amendments to and waivers of the provisions of this Agreement shall be made by the parties only in writing by formal amendment. SECTION 21. Captions. Captions of the Sections and Subsections of this Agreement are for convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of the Agreement. SECTION 22. Severability. If any word, sentence, phrase, paragraph, provision, or portion of this Agreement is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portion hereof so long as the purpose and intent of this Agreement can still be achieved. 6 ORLA_381350.2 SECTION 23. Effective Date. The Effective Date of this Agreement shall be the day this Agreement is last executed by a party hereto and such date shall be inserted on Page 1 of this Agreement. SECTION 24. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. SECTION 25. Recordation of A2reement. The parties hereto agree that an executed original of this Agreement shall be recorded by the City, at the Owner's expense, in the Public Records of Orange County, Florida. The City will, from time to time upon request of the Owner, execute and deliver letters affirming the status of this Agreement. IN WITNESS WHEREOF, the Owner and the City have caused this instrument to be executed by their duly authorized elected officials, partners, and/or officers as of the day and year first above written. 7 ORLA_381350.2 Signed, sealed and delivered in the presence of: Print Name: Print Name: Signed, sealed and delivered in the presence of: Print Name: Print Name: FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, APPROVED AS TO FORM AND LEGALITY THIS DAY OF ,2005 FOLEY & LARDNER LLP City Attorney ORLA_381350.2 OWNER: George E. Foote, Jr. CITY: CITY OF OCOEE, a Florida municipal corporation By: S. Scott Vandergrift, Mayor Attest: Beth Eikeneberry, City Clerk APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON , 2005 UNDER AGENDA ITEM NO. 8 STATE OF COUNTY OF I HEREBY CERTIFY that on this day before me, an officer duly authorized in the State and County aforesaid to take acknowledgements, personally appeared GEORGE E. FOOTE, JR., and that he acknowledged executing the same in the presence of two subscribing witnesses freely and voluntarily. He [] is personally known to me, or [] produced as identification. WITNESS my hand and official seal in the County and State last aforesaid this _ day of ,2005. 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) STATE OF FLORIDA COUNTY OF ORANGE I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State and County aforesaid to take acknowledgments, personally appeared S. SCOTT VANDERGRIFT and BETH EIKENBERRY, well known to me to be the Mayor and City Clerk, respectively, of the CITY OF OCOEE, a Florida municipal corporation, and that they severally acknowledged executing the same in the presence of two subscribing witnesses freely and voluntarily under authority duly vested in them by said municipality. They are personally known to me. WITNESS my hand and official seal in the County and State last aforesaid this _ day of , 2005. 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): 9 ORLA_381350.2 ORLA_381350.2 EXHIBIT" A" Lot 6, Block 4, Map of Ocoee as recorded in Plat Book A, Pages 100 & 101 of the Public Records of Orange County, Florida 10 EXHIBIT "B" Lot 8 and Lot 11, Block 4, lying East of the abandoned CSX railroad and the west 30.00 feet of vacated Cumberland Avenue lying adjacent thereto, Map of Ocoee as recorded in Plat Book A, Pages 100 & 101 of the Public Records of Orange County, Florida. 11 ORLA_381350.2 Engineering Department City of Ocoee 150 N. Lakeshore Drive Ocoee, Florida 34761 TillS INSTRUMENT PREPARED BY: Nicholas N. Palmer, Esq. FOLEY & LARDNER LLP III North Orange Avenue, Suite 1800 Post Office Box 2193 Orlando, Florida 32802-2193 (407) 423-7656 TillS INSTRUMENT SHOULD BE RETURNED TO: NON-EXCLUSIVE TEMPORARY CONSTRUCTION EASEMENT AGREEMENT THIS NON-EXCLUSIVE TEMPORARY CONSTRUCTION EASEMENT AGREEMENT (this "Easement Agreement") is made and entered into this _ day of , 2005, by and between the CITY OF OcOEE, a Florida municipal corporation, whose address is 150 North Lakeshore Drive, Ocoee, Florida 34761 (hereinafter referred to as the "Grantor"), and the GEORGE E. FOOTE, JR., whose address is 6635 Edgewater Drive, Orlando, Florida 32810 (hereinafter referred to as the "Grantee"). WIT N E SSE T 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 this reference (the "Easement Property"); and WHEREAS, pursuant to the terms of that certain Drainage and Stormwater Agreement entered into between the parties hereto of even date herewith, 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. ORLA_379479.1 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 (the "Easement"), all subject to the terms, conditions and limitations set forth herein. Section 3. Grantee's use of the Easement Property shall be for the purpose of Grantee, through himself, his agents, contractors, consultants and employees, performing such activities on the Easement Property as Grantee may deem reasonably necessary in connection with the construction of improvements to the existing retention pond located on the Easement Property (the "Pond Improvements") in accordance with the design, engineering and construction details contained in the Preliminary /Final Subdivision Plan for the Foote Property, as prepared by Klima Weeks Civil Engineering, Inc., date stamped received by the Grantor on , 2005, and approved by the City Commission of the City of Ocoee on , 2005. Section 4. 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 5. This Easement shall terminate upon the earlier of (a) the issuance of a Certificate of Completion with respect to the Pond Improvements by Grantor, or (b) twelve (12) months from the date hereof. Upon termination of this Easement, Grantee shall record a Notice of Termination in the Public Records of Orange County, Florida. Section 6. Grantee shall, at his sole cost and expense, restore any improvements located on or adjacent to the Easement Property that are damaged by Grantee or his agents, contractors, consultants or employees incident to the construction of the Pond Improvements to a condition which approximates as closely as is reasonably practicable the condition of said improvements prior to being damaged by Grantee. Section 7. Grantee agrees to indemnify and hold harmless Grantor from and against any and all claims, actions, causes of action, loss, damage, injury, liability, cost or expense, including without limitation attorneys' fees and paralegal 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 8. 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 9. 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. ORLA_379479.1 -2- 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 in the presence of: Print Name: Print Name: FOR RELIANCE ONLY BY THE CITY OF OcOEE, FLORIDA; APPROVED AS TO FORM AND LEGALITY THIS DAY OF ,2005 FOLEY & LARDNER LLP By: City Attorney Signed, sealed and delivered in the presence of: Print Name: Print Name: ORLA_379479.1 GRANTOR: CITY OF OcOEE, a Florida municipal corporation By: S. Scott Vadergrift, Mayor Attest: Beth Eikenberry, City Clerk (SEAL) APPROVED BY THE OcOEE CITY COMMISSION AT A MEETING HELD ON 2005, UNDER AGENDA ITEM NO. GRANTEE: George E. Foote, Jr. -3- .' STATE OF FLORIDA COUNTY OF ORANGE I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State and County aforesaid to take acknowledgments, personally appeared S. SCOTT V ANDERGRIFT and BETH EIKENBERRY, well known to me to be the Mayor and City Clerk, respectively, of the CITY OF OcOEE, a Florida municipal corporation, and that they severally acknowledged executing the same in the presence of two subscribing witnesses freely and voluntarily under authority duly vested in them by said municipality. They are personally known to me. WITNESS my hand and official seal in the County and State last aforesaid this _ day of , 2005. 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): STATE OF FLORIDA COUNTY OF ) ) I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State aforesaid and in the County aforesaid, to take acknowledgements, personally appeared before me GEORGE E. FOOTE, JR. who 0 is personally known to me, or who 0 produced as identification, and who acknowledged that he/she executed the foregoing instrument freely and voluntarily for the uses and purposes expressed therein. WITNESS my hand and official seal in the County and State last aforesaid this _ day of , 2005. 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): ORLA_379479.1 -4- .' EXHIBIT" A" Lot 8 and Lot 11, Block 4, lying East of the abandoned CSX railroad and the west 30.00 feet of vacated Cumberland A venue lying adjacent thereto, Map of Ocoee as recorded in Plat Book A, Pages 100 & 101 of the Public Records of Orange County, Florida. ORLA_379479.1 -5-