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Home My WebLink About2023 10 23 Consent 301 - Right-of-Way Encroachment Agreement - 936 ArabianCONSENT AGENDA ITEM 301 CITY COMMISSION AGENDA | OCTOBER 23, 2023 REGULAR MEETING TITLE Right-of-Way Encroachment Agreement - 936 Arabian SUMMARY The property owners at 936 Arabian have an existing fence located within a portion of the unpaved right-of-way along Northern Way at Arabian Ave. The property owners wish to replace the existing fence as it is falling apart, but are unable to do so without this agreement as the fence is located within the unpaved portion of Northern Way. The fence/gate have been located at their current location for approximately 15+ years, and apparently relocating the fence/gate onto your property is not preferred because of the location of existing Oak trees. Maintaining the integrity of the 80 ft. Northern Way right-of-way is very important to the City for obvious reasons, and the City must maintain it for existing and future public use. However, in certain rare situations such as this, the City has provided private property owners an accommodation and have allowed long standing existing private encroachments (beyond the usual driveway apron) to remain within the right-of-way by use of an encroachment agreement provided the existing encroachments are not currently impeding or interfering with the current and planned future public use of the right-of-way. FUNDING SOURCE N/A RECOMMENDATION Staff recommends that the City Commission review and approve the Right-of-Way Encroachment Agreement for 936 Arabian Ave. 54 Page 1 of 5 Prepared by and return to: Anthony A. Garganese City Attorney Garganese, Weiss, D’Agresta & Salzman, P.A. P.O. Box 2873 Orlando, FL 32802-2873 ROW ENCROACHMENT LICENSE AGREEMENT This ROW Encroachment License Agreement (“Agreement”) made this _____ day of October, 2023, by and between the CITY OF WINTER SPRINGS, a Florida municipal corporation, (hereinafter referred to as “City”), whose address is 1126 E. State Road 434, Winter Springs, Florida 32708, and JESSICA B. BAILEY AND CHRISTOPHER E. BAILEY, husband and wife, (hereinafter referred to as “Owner”) whose address is 936 Arabian Avenue, Winter springs, Florida 32708. WHEREAS, Owner presently owns that certain property located within the City of Winter Springs generally described as Lot 95 of WINTER SPRINGS UNIT 3, according to the plat thereof as recorded in Plat Book 17, Page 89, of the Public Records of Seminole County, Florida (Parcel Identification Number: 13-21-30-5CX-0000-0950) (hereinafter referred to as “Property”); and WHEREAS, the Property is located on the corner of Arabian Avenue and Northern Way within the Tuscawilla PUD; and WHEREAS, Owner has certain existing improvements installed approximately 5 to 6.5 ft outside of their Property within the unpaved portion of the 80 foot Northern Way right-of-way including a fence, two exterior decorative light columns, driveway apron, and aluminum automatic driveway gate (hereinafter referred to as “Encroachments”) according to a survey prepared by Perry Surveying which was filed with the City on October 4, 2023, a copy of which is attached hereto and incorporated herein by this reference (hereinafter referred to as “Survey”); and WHEREAS, the Parties hereto wish to enter into this Agreement to allow the Owner to maintain the Encroachments in their current location located within the unpaved portion of the Northern Way right-of-way, subject to the conditions of this Agreement. NOW, THEREFORE, in consideration of the terms and conditions set forth herein, the parties agree as follows: 1. The “whereas” clauses set forth above are true and accurate and are hereby incorporated herein. 2. The City hereby authorizes and allows Owner to maintain the Encroachments into the unpaved portion of the Northern Way right-of-way, but only to the extent as the Encroachments presently exist as depicted on the Survey and Owner is not in breach of this Agreement. Such authorization is subject to the City’s rights stated in Section 6 herein. The 55 Page 2 of 5 Owner agrees that the Owner will not encroach any more than the Encroachments presently exists. 3. Owner agrees to ensure that the Owner will not damage the Northern Way right- of-way. In the event Owner does in fact damage said right-of-way, Owner must repair said damage immediately and at Owner’s expense; or at the option of the City, the City will repair said damage and Owner must immediately thereafter reimburse City for said cost and expense. If the Owner fails to reimburse City for the cost of repair and damage incurred by City after written notice to Owner, City will have the right to impose these costs as a lien against the Property. 4. During the term of this Agreement, Owner shall have the right to maintain, repair or replace the Encroachments in their current location within the Northern Way right-of-way subject to any applicable City permit requirements and the City’s rights in stated in Section 6 herein. A copy of this Agreement must be submitted by Owner with any permit application filed with the City. 5. To the fullest extent permitted by law, Owner hereby indemnifies and agrees to hold harmless the City, its officers, agents and employees, from and against all claims, damages, losses and expenses, including reasonable attorney’s fees, arising out of or resulting from the construction, location, repair, replacement, and maintenance of the Encroachments on and within the Northern Way right-of-way. 6. The City will not be restricted in any manner from accessing, maintaining, repairing or reconstructing the Northern Way right-of-way. The City reserves all rights and privileges to access and utilize the Northern Way right-of-way for any and all public purposes consistent with the dedication in the future and in no way waives such right or interest by virtue of this Agreement. Should the City desire to utilize Northern Way right-of-way in the future for any public purpose consistent with the dedication, the City shall retain the right to remove or prohibit the Encroachments and any other private use interfering with such public use by any lawful means. The City may also terminate this Agreement with thirty (30) days written notice to the Owner. 7. This Agreement shall be recorded in the official records of Seminole County, Florida, and shall run with the land and inure to the benefit of and be binding upon the respective heirs, personal representatives, successors and assigns of the parties hereto. 8. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida, and venue shall be in Seminole County, Florida. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals hereto on the day and year first above written. [signatures to follow] 56 Page 3 of 5 WITNESSES: ________________________________ ________________________________ (print) ________________________________ ________________________________ (print) CITY OF WINTER SPRINGS By:________________________________ Kevin McCann, Mayor ATTEST: ______________________________ Christian Gowan, City Clerk STATE OF FLORIDA COUNTY OF SEMINOLE The foregoing instrument was acknowledged before me by means of ☐ physical presence or ☐ online notarization, this _______ day of _____________, 2023, by KEVIN McCann, Mayor who is personally known to me. ________________________________ Notary Public – State of Florida Print Name:______________________ My Commission expires: 57 Page 4 of 5 WITNESSES: ________________________________ ________________________________ (print) ________________________________ ________________________________ (print) By:________________________________ Jessica B. Bailey By:________________________________ Christopher E. Bailey STATE OF FLORIDA COUNTY OF SEMINOLE The foregoing instrument was acknowledged before me by means of ☐ physical presence or ☐ online notarization, this _______ day of _____________, 2023, by Jessica B. Bailey and Christopher E. Bailey, husband and wife, (check one) □ who are personally known to me or □ who produced _______________________________ as identification. ________________________________ Notary Public – State of Florida Print Name:______________________ My Commission expires: 58 Page 5 of 5 EXHIBIT A SURVEY 59 2023-00002727 10/04/23 60