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HomeMy WebLinkAbout2015 01 26 Consent 308 Temporary Construction Easement Agreement for Market SquareCOMMISSION AGENDA ITEM 308 REQUEST: Informational Consent X Public Hearings Regular January 26, 2015 KS KL Regular Meeting City Manager Department Public Works Department requesting authorization to enter into a Temporary Construction and Access Easement Agreement with Summer Falls, LLC for the Intersection Improvements at SR 434 and Tuskawilla Road transportation project. SYNOPSIS: A Temporary Construction and Access Easement is required by the City from Summer Falls, LLC, owner of the Winter Springs Town Center, to allow the City's roadway contractor access to the SR 434 frontage road for construction and staging as part of the Intersection Improvements at SR 434 and Tuskawilla Road (Market Square) project. CONSIDERATIONS: The Intersection Improvements at S.R. 434 and Tuskawilla Road project consists of a comprehensive set of safety, operational, and aesthetic improvements to Market Square, the SR 434 / Tuskawilla Road intersection, and the Town Center frontage road. The project requires access to and transportation - related construction activities on the Town Center frontage road, which is owned by Summer Falls, LLC. The Town Center frontage road is immediately adjacent to the SR 434 right -of -way, and construction of a more functional and safer frontage road requires construction on the Summer Falls property. The Florida Department of Transportation (FDOT) requires a temporary construction easement for any construction activities outside of the state right -of -way for Local Agency Program (LAP) projects. Consent 308 PAGE 1 OF 2 - January 26, 2015 . Exhibit A attached is a final blacklined version of the Non - Exclusive Temporary Construction and Access Easement Agreement between the City and Summer Falls, LLC. The parties have agreed to cooperate regarding the proposed vehicular and pedestrian improvements along SR 434 and Tuskawilla Road including improvements to the Town Center frontage road and surrounding transportation facilities on the Summer Falls, LLC property. . The City Attorney and the attorney for Summer Falls, LLC have reviewed and approved the terms of the Agreement. Staff has reviewed the Agreement and has determined that it is satisfactory for completing the construction project as shown on the final engineering plans, and it complies with the applicable FDOT requirements to establish legal access to the Summer Falls property. . The project is scheduled to be advertised for construction bids in March 2015. The construction contract is scheduled to be submitted for City Commission approval at the April 13, 2015 meeting, with construction scheduled to begin soon thereafter. The project has a total duration of approximately six months and should be complete by November 2015. FISCAL IMPACT: The Temporary Construction and Access Easement has no fiscal impact to the City. COMMUNICATION EFFORTS: This Agenda Item has been electronically forwarded to the Mayor and City Commission, City Manager, City Attorney /Staff, and is available on the City's Website, LaserFiche, and the City's Server. Additionally, portions of this Agenda Item are typed verbatim on the respective Meeting Agenda which has also been electronically forwarded to the individuals noted above, and which is also available on the City's Website, LaserFiche, and the City's Server; has been sent to applicable City Staff, Media/Press Representatives who have requested Agendas /Agenda Item information, Homeowner's Associations/Representatives on file with the City, and all individuals who have requested such information. This information has also been posted outside City Hall, posted inside City Hall with additional copies available for the General Public, and posted at five (5) different locations around the City. Furthermore, this information is also available to any individual requestors. City Staff is always willing to discuss this Agenda Item or any Agenda Item with any interested individuals. RECOMMENDATION: Staff recommends the City Commission authorize entering into a Temporary Construction and Access Easement Agreement with Summer Falls, LLC, and authorize the City Manager and City Attorney to prepare and execute any and all applicable documents. ATTACHMENTS: 1. Exhibit A - Temporary Construction and Access Easement Agreement (blacklined final draft, 7 pages) Consent 308 PAGE 2 OF 2 - January 26, 2015 EXHIBIT A Prepared by and Return to: Anthony A. Garganese, City Attorney Brown, Garganese, Weiss & D'Agresta, P.A. 111 N. Orange Avenue, Suite 2000 Orlando, Florida 32802 (407) 425 -9566 NON - EXCLUSIVE TEMPORARY CONSTRUCTION AND ACCESS EASEMENT AGREEMENT THIS NON - EXCLUSIVE TEMPORARY CONSTRUCTION AND ACCESS EASEMENT AGREEMENT is made and entered into this day of 2014, by and between , whose address is , (hereinafter referred to as the "Grantor "), and the CITY OF WINTER SPRINGS, a Florida municipal corporation, whose address is 1126 East State Road 434, Winter Springs, Florida 32708, (hereinafter referred to as the "Grantee "). WITNESSETH: WHEREAS, Grantor is the owner of that certain real property located in Seminole County, Florida, as more particularly described in Exhibit A attached hereto and incorporated herein by reference (the "Easement Property")-, and WHEREAS, Grantor and Grantee have agreed to cooperate regarding a pedestrian and vehicular traffic improvement project along State Road 434 and Tuscawilla Road that includes improvements to the Easement Property and public right -of -way pursuant to engineering plans and specifications prepared by , dated (the "Project Plans")-, and WHEREAS, Grantor and Grantee agree that the transportation, hardscape, landscape, and related beautification improvements required by the Project Plans mutually benefit the parties and the public; and WHEREAS, Grantee has requested, and Grantor has agreed to grant and convey to Grantee, a non - exclusive temporary construction easement over, upon and across the Easement Property for the specific and limited purposes of constructing the improvements required by the Project Plans; and 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 - lexclusive temporary construction and access easement over, upon and across the Easement Property for purposes of constructing transportation, hardscape, landscape, and related beautification improvements required by the Project Plans (the "Easement "), all subject to the terms, conditions, land limitations set forth herein. Said Easement shall also include Grantee's right to erect a I and installing utilities which are needed to construct the improvements required by the Project Plans. Grantee assumes sole and full responsibility for loss or damage to its construction eauinment Section 3. Grantor hereby warrants and guarantees to Grantee that Grantor has fee title to Ithe Easement Property, subject to easements, reservations, restrictions, encumbrances, 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. Grantee also warrants and guarantees that this Easement Agreement is valid and binding on the Grantee. Section 4. Grantee's use of the Easement Property shall be for the limited purpose of Grantee, through itself, its agents, contractors, consultants and employees, performing such activities on the Easement Property as Grantee may at its discretion deem reasonably necessary in connection with the surveying, permitting, construction, inspection, protection, use, alteration, operation, modification, repair, reconstruction, or replacement of transportation, hardscape, landscape, and related beautification improvements required by the Project Plans during the term of this Easement. During the term of this Easement, no right of access by the general public to any portion of the Easement Property is conveyed to the public by this Easement. Grantor agrees that once the Grantee commences construction of said improvements on the Easement Property, Grantor agrees not to interfere or impede with Grantee's construction of the improvements, except that in However, if 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, provided such use does not materially interfere or materially impede with Grantee's construction of the improvements referenced hereunder, unreasonably or materially increase the costs to Grantee for constructing the Project or restoring the Easement Property after construction as required by Section 7 herein, or cause a hazard or nuisance to the public. 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 consistent with the terms of this Easement. Section 6. The Easement shall remain in full force and effect until the successful completion of the construction of the Project, which shall be determined at such time as eei4if4ed by =the Florida Department of Transportation (`FDOT ") formally accepts the entire Project as completed, or (b) Poeow4°r 31, 2414June 1, 2016, whichever occurs sooner. Upon such event, this Easement shall automatically terminate and this Easement shall be of no further force and effect, unless the term of the Easement is extended by mutual written agreement of the parties due to the fact that the Project has not been completed as originally anticipated. Section 7. Prior to commencing construction activities on the Easement Property, Grantee shall provide the Grantor with at least fourteen (14) days written notice. During the construction time period, Grantee shall maintain the Easement Property in a reasonably safe manner and perform or have performed the work required by the Project Plans in a workman like manner that minimizes, to the extent practicable, the amount of dust, debris, noise and /or other construction impacts on Grantor's Property and the vehicles parked thereon. In addition, Grantee shall not unreasonably obstruct traffic or eliminate access to Grantor's Propert,(especiall,r�g 12eak times of the da ), except as necessary to complete construction of the improvements pursuant to the Project Plans. Upon completion of the Project and acceptance thereof by FDOT, Grantee shall provide written notice of completion to the Grantor. Further, Grantee shall leave the Easement Property in the same condition it was in prior to the commencement of construction, subject to those improvements made pursuant to the Project Plans. The 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. However, unless otherwise agreed to by the parties by separate written instrument, Grantee shall not be responsible for any costs or liabilities related to the routine operation, upkeep, or maintenance the Easement Property after the Easement Agreement is terminated. Section 8. Grantee intends to retain the services of a construction contractor to construct the improvements required by the Project Plans. Grantee shall require the general contractor to construct the improvements in a workmanlike manner and in compliance with the applicable statutes, ordinances, rules and regulations of all governing public authorities as those statures, ordinances, rules and regulations are amended from time to time. Grantee agrees to also require the ,general contractor to maintain a minimum of effetwo million dollars ($2,000,000.00) of general liability insurance coverage for purposes of covering any and all potential claims, actions, causes of action, loss, damage, injury, liability, cost or expense caused by or arising out of the contractor's performance to construct the improvements. Grantee shall require that said general contractor's insurance company list the Grantor and Grantee as additional named insureds on the general contractor's insurance policy. Further, the general contractor shall provide proof of said insurance to Grantor and Grantee. Subject to the limitations as provided in Section 768,28, Florida Statutes and provided Grantor is not afforded compensation or coverage under the general contractor's insurance, 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. Grantee agrees that all costs, expenses and /or obligations for labor, materials and /or services for or in connection with all improvements constructed on the Easement Property pursuant to the Project Plans shall be paid for by Grantee, and that Grantee shall protect Grantor's Property from the filing of mechanics' liens relating to said improvements. In the event that any such mechanics' liens are filed against Grantor's Property, Grantee shall promptly take such steps, at its expense, to cause a release of the mechanics' lien or liens to be filed with the Official Records of Seminole County. Section 10. Grantor shall indemnifv and hold Grantee harmless, from and against anv claims, damages, losses and expenses arising out of or resulting from any hazardous waste that exists on the Easement Property prior to the date that Grantee has commenced construction of the improvements required by the Project Plans or caused in whole or in part by the negligent acts and omissions of the Grantor. However, the Grantee shall indemnify and hold harmless the Grantor from and against claims, damages, losses and expenses arising out of or resulting from hazardous Formatted: Font: Bold Formatted: Font: Bold waste on the Easement Property that was caused by Grantee and /or its contractors related to, or arising from, the construction of the improvements required by the Project Plans. The term "hazardous waste" shall have the same meaning as set forth in applicable state and federal law. Section 11. To the extent that warranties are provided for any of the improvements constructed on the Easement Property, Grantee will have the Grantor named as an additional named party entitled to the benefits under the warranty_ Section 12. Anv notices required by this Agreement shall be delivered in writing by hand or mailed, postage prepaid to: For Grantor: For Grantee: City of Winter Springs / Public Works Department Attention: City Engineer 1126 E. State Road 434 Winter Springs, Florida 32708 (407) 327 -5989 FAX: (407) 327 -6695 Section 13. Upon the occurrence of a breach or default by either party under this Agreement, the non - defaulting pLit shall provide the defaulting party written notice of the breach or default. Upon receipt of the notice of default, the defaulting 12 rty shall have ten (10) days to cure the default unless additional time is reasonably_ granted to cure the default by the non - defaulting party. If the default is not cured within said time period, either party ma bring an action to enforce anv of the terms of this Agreement. The prevailing 12 rty in such action shall be entitled to recover from the non- prevailing party the costs and expenses of such action including, but not limited to, reasonable attorneys' fees, whether at settlement, trial or on appeal. The parties hereby unconditionally waive their respective rights to a jury trial in any such action. Section 141. 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 159. 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. Formatted: Font: Bold Formatted: Font: Bold Formatted: Font: Bold Section 146. This Easement shall become effective on the date that it is executed by an authorized representative of each signing party. In addition, this Easement shall be governed by the laws of Florida. Venue for any dispute under this Easement shall be Seminole County, Florida. Section 17. In the event anv portion or part of thereof this Agreement is deemed invalid, — Formatted: Font: Bold against public policy, void, or otherwise unenforceable by a court of law, the parties shall negotiate an equitable adjustment in the affected provision of this Agreement. The validity and enforceability of the remaining parts of this Agreement shall otherwise by enforceable. Section 18. 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. Grantor and Grantee each represent that they have both shared equally in drafting this his Agreement and no party shall be favored or disfavored regarding the interpretation of this Agreement in the event of a dispute between the parties. 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. I":7 \►Y ICI]:; WITNESSES: By: Title: Print Name: Print Name: STATE OF FLORIDA COUNTY OF SEMINOLE The foregoing instrument was acknowledged and sworn to before me this day of 2014, by , as , a , who is /is not personally known to me, or has produced as identification. NOTARY PUBLIC GRANTEE: WITNESSES CITY OF WINTER SPRINGS Print Name Print Name By: Kevin L. Smith City Manager Formatted: Font: Bold STATE OF FLORIDA COUNTY OF SEMINOLE The foregoing instrument was acknowledged and sworn to before me this day of , 2014 by Kevin L. Smith, City Manager of the City of Winter Springs Florida who is /is not personally known to me, or has produced as identification. NOTARY PUBLIC EXHIBIT "A"