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HomeMy WebLinkAboutKingsbury, Laverne & June Settlement Agreement - 2005 03 15 Prepared by and return to: Jeffrey P. Buak, Assistant City Attorney City of Winter Springs 1126 East State Road 434 Winter Springs, Florida 32708 SETTLEMENT AGREEMENT THIS SETTLEMENT AGREEMENT is made and entered into the last date signed below by and between the CITY OF WINTER SPRINGS, a Florida municipal corporation ("City"), having a mailing address of 1126 East State Road 434, Winter Springs, Florida 32708, and LAVERNE W. KINGSBURY and JUNE L. KINGSBURY, a married couple ("Kingsbury"), having a mailing address of 150 Tuskawilla Road, Winter Springs, FL 32708 (hereinafter "Agreement"). WITNESSETH: WHEREAS, Kingsbury is the owner of property addressed as 150 Tuskawilla Road, Winter Springs Florida, and generally located at the southwest comer of Tuskawilla Road and Blumberg Boulevard, and is identified by the Seminole County Property Appraiser's Office as Parcel J.D. 26-20-30-5AR-OBOO-00U3; and WHEREAS, chain-link fencing, owned by Kingsbury, located adjacent to Blumberg Boulevard was removed, without Kingsbury's consent, during the construction of the Winter Springs Town Center; and WHEREAS, the City and Kingsbury have agreed any claim of damages by Kingsbury can be fully resolved and settled by the installation of a new fence, as described herein, upon the City's right-of-way adjacent to and bordering the Kingsbury property along both Blumberg Boulevard and Tuskawilla Road; and WHEREAS, the City believes this Agreement to be in the best interest of the public health, safety, and welfare. NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions and restrictions contained herein, together with other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Incorooration of Recitals. The foregoing recitals are hereby incorporated herein by this reference. Page 1 2. Fence Replacement. The City hereby acknowledges and agrees that a six (6) foot high chain-link styled fenced, owned by Kingsbury and located adjacent to Blumberg Boulevard was removed during the construction of the Winter Springs Town Center, and while the City does not admit responsibility or liability for the removal, the parties have agreed to amicably resolve any such claims for damages by Kingsbury through the installation of a replacement fence upon the City's right-of-way adjacent to and bordering the Kingsbury property fronting on both Blumberg Boulevard and Tuskawilla Road, as more specifically provided in the "scope of work" attached hereto as Exhibit "A," the same being incorporated herein by this reference. The replacement fence shall be constructed of a white vinyl picket-type fencing, no less than four (4) feet in height, and substantially similar to the fencing depicted in Exhibit "B," which is attached hereto and incorporated herein by this reference. The City agrees the installation of this replacement fencing shall be completed expeditiously, however, delays in acquiring materials and labor may arise and could potentially prolong construction efforts. 3. Temporary Construction Easement. Kingsbury hereby voluntarily grants and conveys to City, its agents, employees, contractors, or subcontractors a temporary construction easement over, under, and across a portion ofthe real property, generally described as Tax Parcel Number 26-20-30-5AR-OBOO-00U3 ofthe nature and character and to the extent hereinafter set forth ("Easement"). This Easement is granted for the express purpose of allowing City temporary access to the Kingsbury property to construct a replacement fence, as described above. It is also the express purpose ofthis Easement to provide City unconditional ingress and egress to, over, and across the Kingsbury property lying within ten (10) feet of the location of the proposed fence for the purposes stated herein. A Memorandum of Easement referencing this Agreement shall be recorded, at the City's expense, in the Public Records of Seminole County, Florida, following the effective date of this Agreement. A termination of Easement shall be recorded, at the City's expense, in the Public Records of Seminole County, Florida at such time as the fences has been constructed and installed by the City. 4. Removal of Existine: Fence. Kingsbury hereby grants City permission to remove and dispose of the existing chain-link fencing located adjacent to Tuskawilla Road at time of construction of the replacement fencing. 5. General Release. Kingsbury, for and in consideration of installation of the replacement fencing, as described above, does hereby freely and voluntarily, on behalf of Page 2 themselves, their successors and assigns, hereby individually and for their heirs, executors, administrators, personal representatives, successors and assigns hereby release, acquit and forever discharge the City, its officers, employees, boards, board members, committees, committee members, agents, lawyers, successors, and assignees thereof, and all other persons, firms, corporations, or legal entities of City who are in privity therewith or might be liable in any way, from any and all claims, actions, causes of action, legal, equitable or administrative proceedings, demands, rights, damages, losses, costs, expenses, attorneys' fees and compensation of whatsoever kind or nature which Kingsbury now has or which may hereafter accrue on account of or in any way growing out of any and all known or unknown, foreseen and unforeseen, developed and undeveloped loses, injuries or damages, and the consequences thereof arising, or to arise from and resulting, or to result from, any and all decision, advice, recommendations, or actions made by City at any time with regards to the removal of the above described chain-link fencing. Further, Kingsbury hereby acknowledges full and final settlement and satisfaction of any and all claims, actions, causes of action, legal, equitable or administrative proceedings, demands or rights of whatsoever kind or nature which we may have against City, by reason of the above mentioned damages, injuries or losses. Kingsbury's General Release of the City shall become effective at such time as the City completes the installation of the replacement fencing. In making this release, it is understood and agreed that Kingsbury relied wholly upon their own judgment, belief and knowledge of the nature, extent and duration of said losses, injuries or damages and that no representations or statements regarding said loses, injuries or damages or regarding any other matters made by the person(s), firm(s), corporation(s) or legal entities of whatsoever kind or nature who are hereby released or by any other person or persons representing him, her, it or them, has influenced Kingsbury to any extent whatsoever in making this Release. This release shall survive the termination of this Agreement provided the City has not defaulted under the terms and conditions contained herein. 6. ' Attornevs Fees. In the event of any legal action arising under this Agreement between the parties, the parties agree to incur their own attorney's fees, court costs and expenses, through all appellate proceedings. 7. Successors. The covenants, terms, conditions, rights, and restrictions of this Easement shall be binding upon, and inure to the benefit of the parties hereto and their respective personal representatives, heirs, successors and assigns and shall continue as a servitude running in perpetuity with the Property. 8. Entire Agreement. This Easement constitutes the full and entire agreement between the parties hereto and supercedes any oral or written prior communications between the Page 3 parties related to the subject matter contained in this Easement. The laws of Florida shall govern this Agreement. 9. Sovereie:n Immunitv. Nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under state or federal law. 10. Modification. This Agreement shall only be modified by a written instrument executed by the parties hereto or any successor, assigns, heirs, or representatives thereto. 11. Permits. City shall be solely responsible for complying with any local, state, or federal permit requirements, obligations, and duties (if any) related to the construction, of the replacement fencing located within the Kingsbury property. 12. Cooperation. City and Kingsbury shall cooperate fully with each other to effectuate the terms, conditions and intentions of this Agreement. Further, each party agrees to adjust, initial, re-execute and re-deliver any and all documents subject to this Agreement if deemed necessary or desirable by one or the other of the parties. 13. Authority and Assie:nment. Each party hereby represents and warrants to the other that they have full power and authority to enter into this Agreement. 14. Notices. Any notice required or allowed to be delivered hereunder shall be in writing and shall be deemed to be delivered when: (a) hand delivered to the official hereinafter designated, or (b) one day after deposit with a nationally recognized overnight courier service, e.g. Federal Express, Purolator, Airborne, Express Mail etc., or (c) by facsimile delivery.. addressed to a party at the other address as specified below or from time to time by written notice to the other party delivered in accordance herewith: Kingsbury: Mr. & Mrs. Kingsbury 150 Tuskawilla Road Winter springs, FL 32708 Phone: 407-327-1916 With copy to: Oswald & Oswald, P.L. 600 Courtland Street, Suite 110 Orlando, FL 32804 Phone: 407-647-3738 Fax: 407-647-6283 Page 4 City: City of Winter Springs Attention: City Manager 1126 East State Road 434 Winter Springs, FL 32708 Phone: 407-327-1800 Fax: 407-327-4753 With copy to: Anthony A. Garganese, Esq. City Attorney for the City of Winter Springs Brown, Garganese, Weiss & D'Agresta, P.A. 225 E. Robinson Street - Suite 660 POBox 2873 Orlando, FL 32802 Phone: 407-425-9566 Fax: 407-425-9596 15. Defaults. Failure by either party to perform each and every one of its obligations hereunder shall constitute a default, entitling the no defaulting party to pursue whatever remedies are available to it under Florida law or equity including, without limitation, an action for specific performance and/or injunctive relief. Prior to any party filing any action as a result of a default under this Agreement, the non-defaulting party shall first provide the defaulting party with written notice of said default. Upon receipt of said notice, the defaulting party shall be provided a thirty (30) day opportunity in which to cure the default to the reasonable satisfaction of the non-defaulting party prior to filing said action. The prevailing party in any litigation arising under this Agreement shall be entitled to recover its reasonable attorney's fees and costs, whether incurred at trial or appeal. 16. Applicable Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. Venue for any state court action shall be exclusively in Seminole County, Florida, while venue for any federal court action shall be exclusively in the United States Middle District Court of Florida, Orlando Division. 17. Severability. If any provision of this Agreement shall be held to be invalid or unenforceable to any extent by a court of competent jurisdiction, the same shall not affect in any respect the validity or enforceability of the remainder of this Agreement. 18. Effective Date. This Agreement shall become effective upon approval by the City Commission of Winter Springs and execution of this Agreement by both parties (the "Effective Date"). 19. Force Maieure. The parties agree that in the event that the failure by either party to accomplish any action required hereunder within a specified time period ("Time Period") Page 5 constitutes a default under the terms of this Agreement and, if any such failure is due to any unforeseeable or unpredictable event or condition beyond the control of such party, including, but not limited to, acts of God, acts of government authority (other than the City's own acts), acts of public enemy or war, riots, civil disturbances, power failure, shortages of labor or materials, injunction or other court proceedings beyond the control of such party, or severe adverse weather conditions ("Uncontrollable Event"), then, notwithstanding any provision of this Agreement to the contrary, that failure shall not constitute a default under this Agreement and any Time Period proscribed hereunder shall be extended by the amount of time that such party was unable to perform solely due to the Uncontrollable Event. 20. Interpretation. The parties hereby agree and acknowledge that they have both participated equally in the drafting of this Agreement and no party shall be favored or disfavored regarding the interpretation of this Agreement in the event of a dispute between the parties. 21. Third Party Riehts. This Agreement is not a third party beneficiary contract and shall not in any way whatsoever create any rights on behalf of any third party. 22. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be considered an original agreement; but such counterparts shall together constitute but one and the same instrument. [Left Blank Intentionally, Signatures Follow] Page 6 IN WITNESS WHEREOF, this Agreement has been executed by the parties as of the dates hereinafter set forth. ATTEST: CITY OF WINTER SPRINGS: Andrea Lorenzo-Luaces, City Clerk 1 By: J~?~'// C-./. ~;t2 ~ ~ V,'. McLemore, City Manager Date: J ~ I ~ ~ 0 S'- '_' 2005 WITNESSES: KINGSBURY: ~~4~~;tn ~ ( Date: fY1o....rch ~ ,2005 Page 7 STATE OF FLORIDA a COUNTY OF \.)6rfl 'i -.J 0 L f=--." The foregoing instrument was acknowledged and sworn to before me this g-::!'- day of rY'i '1 r~-'~ , 2005, by Laverne W. Kingsbury, ~'who is personally known to me or D has produced as identipt\atf0. ~~~,a~/J~ NOTARY PUBLIC My Commission __ Expires: q -.;) --()~. ~~ PATRICIA A. SMITI:I ~~ MY COMMISSION # 00332630 ~ EXPIRES: Sqltcoiler 02. 2008 I.ac:WOfARY Fl. Notary Disoount Assoc. Co. WITNESSES: Irw 4 rtdi P. N ........ \ n nnt aIDe: v.a.'.J~ to ';""')rY' ,~..:... ~ !51;/ Print N . e: ':JC' . E3 J.- ~'L- ~_~~L. 7/ ~une L. Kingsbury Date:f() fIR (~I ''I ,2005 ST ATE OF FLORIDA COUNTY OF ~,;'{(\,~~(')I_L/ The foregoing instrument was acknowledged and sworn to before me this g-r.A~ day of r:{'y1 (('.Ii\- , 2005, by June L. Kingsbury '.B:.~Wh . s perso.nallY known to me or D has produced as ident~fica 0 . '- f1;:(A-;f-A~)a 0/Y1A7~~ NOTARY PUBLIC ~~ PATRICIA A. SMITI:I ~~ MY COMMISSION # 00332630 ~ EXPIRES: Seplcmb<<02. 2008 ..ac:worARY Fl. Notary Disoount_ Co. My Commission _ Expires: q -,B - O$$' Page 8