The URL can be used to link to this page

Home My WebLink About2022 05 23 Consent 304 - ROW Encroachment License Agreement related to David Drive (1225 Belle Ave)CONSENT AGENDA ITEM 304 CITY COMMISSION AGENDA | MAY 23, 2022 REGULAR MEETING TITLE Approve ROW Encroachment License Agreement related to David Drive (a platted, unpaved and unopened right-of-way) for property located at Lot 7, Block B, Johnson’s Poultry Farms according to the plat thereof as recorded in Plat Book 6, Page 8 of Seminole County (1225 Belle Avenue). SUMMARY WMG Acquisitions, LLC (“WMG”) is under contract to purchase the subject property in Winter Springs located at 1255 Belle Avenue, Winter Springs, Florida 32708 bearing Parcel ID Nos. 04-21-30-511-0B00-007A and 04-21-30-511-0B00-0070 (the “Property”). WMG (and the current owner of the property) wish to resolve a small encroachment into a purported right of way over the non-open David Drive for public purposes which abuts the East side of the Property. Along the Northern portion of the East boundary of the Property, the 1 Story Brick building encroaches up to 0.4’ into David Drive, as to a few ground floor A/C units (the “Encroachments”), and a fence. The City of Winter Springs has a right of way over David Drive for public purposes. David Drive has not been opened and the Encroachments are nominal that in the event David Drive is ever utilized by the City of Winter Springs for any purpose that is doesn’t appear that the Encroachments could ever be a material impediment to any such uses. WMG and the current owner requests that the City of Winter Springs to provide a ROW Encroachment License Agreement to resolve the issue. The City Commission previously authorized other encroachments within David Drive by adjacent property owners when the Commission approved the Voska Lot Split pursuant to Resolution 2021-07. RECOMMENDATION Staff recommends the Commission approve the ROW Encroachment License Agreement related to David Drive (a platted, unpaved and unopened right-of-way) for property located at Lot 7, Block B, Johnson’s Poultry Farms according to the plat thereof as recorded in Plat Book 6, Page 8 of Seminole County (1225 Belle Avenue). 49 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 ___________, 2022, 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 Robert W. Baxley, as Trustee of The Robert W. Baxley Revocable Trust Agreement, dated December 6, 2006, as to an undivided one-half (1/2) interest, and Annmarie C. Baxley, as Trustee of The Annmarie C. Baxley, Revocable Trust Agreement, dated December 6, 2006, as to an undivided one-half (1/2) interest (hereinafter referred to as “Owner”) whose address is 1255 Belle Avenue # 101, Winter Springs, Florida 32708. WHEREAS, Owner presently owns that certain property located within the City of Winter Springs generally described as Lot 7, Block "B", JOHNSON'S POULTRY FARMS, according to the plat thereof as recorded in Plat Book 6, Page 8, of the Public Records of Seminole County, Florida (hereinafter referred to as “Property”); and WHEREAS, the Property is located directly east and adjacent to David Drive, a 25 foot platted, unpaved and unopened right-of-way, which was dedicated to the public in the Johnson’s Poultry Farm plat; and WHEREAS, Owner has certain existing improvements installed within the David Drive right-of-way including several AC units, fence and a portion of 1 story brick building and building overhangs (hereinafter referred to as “Encroachments”) according to a survey prepared by Partner Engineering and Science, dated 03/01/2022, 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 into the David Drive 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 David Drive 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 Owner agrees that the Owner will not encroach any more than the Encroachments presently exists. 50 Page 2 of 5 3. Owner agrees to ensure that the Owner will not damage the David Drive 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, City will repair said damage and Owner must immediately thereafter reimburse City for said cost and expense. If 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. In the event that any or all of the Encroachments are destroyed, removed or demolished, said Encroachments shall not be replaced into the David Drive right-of-way without the City’s prior written consent, with the exception that the City agrees that the AC units may be replaced in their present location so long as the brick building exists on the Property and continues to encroach into the David Drive right-of-way. 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, and maintenance of the Encroachments on and within the David Drive right-of-way. 6. The City will not be restricted in any manner from accessing, maintaining, repairing or reconstructing the David Drive right-of-way. The City reserves all rights and privileges to access and utilize the David Drive 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 David Drive right-of-way in the future for any public purpose consistent with the dedication, the City shall retain the right to remove or prohibit any private use interfering with such public use by any lawful means. 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] 51 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 _____________, 2022, by KEVIN McCann, Mayor who is personally known to me. ________________________________ Notary Public – State of Florida Print Name:______________________ My Commission expires: 52 Page 4 of 5 WITNESSES: ________________________________ ________________________________ (print) ________________________________ ________________________________ (print) Robert W. Baxley, as Trustee of The Robert W. Baxley Revocable Trust Agreement, dated December 6, 2006, as to an undivided one-half (1/2) interest, and Annmarie C. Baxley, as Trustee of The Annmarie C. Baxley, Revocable Trust Agreement, dated December 6, 2006, as to an undivided one-half (1/2) interest By:________________________________ Robert W. Baxley, Trustee By:________________________________ Annmarie C. Baxley, Trustee STATE OF FLORIDA COUNTY OF SEMINOLE The foregoing instrument was acknowledged before me by means of ☐ physical presence or ☐ online notarization, this _______ day of _____________, 2022, by Robert W. Baxley, as Trustee of The Robert W. Baxley Revocable Trust Agreement, dated December 6, 2006, as to an undivided one-half (1/2) interest, and Annmarie C. Baxley, as Trustee of The Annmarie C. Baxley, Revocable Trust Agreement, dated December 6, 2006, as to an undivided one-half (1/2) interest, (check one) □ who are personally known to me or □ who produced _______________________________ as identification. ________________________________ Notary Public – State of Florida Print Name:______________________ My Commission expires: 53 Page 5 of 5 EXHIBIT A SURVEY 54 TO: WMG ACQUISITIONS, LLC, A FLORIDA LIMITED LIABILTY COMPANY;CHICAGO TITLE INSURANCE COMPANY:THIS IS TO CERTIFY THAT THIS MAP OR PLAT AND THE SURVEY ON WHICH IT ISBASED WERE MADE IN ACCORDANCE WITH THE 2021 MINIMUM STANDARDDETAIL REQUIREMENTS FOR ALTA/NSPS LAND TITLE SURVEYS, JOINTLYESTABLISHED AND ADOPTED BY ALTA AND NSPS, AND INCLUDES ITEMS 2, 3, 4,6A, 6B, 7A, 7B1, 7C, 8, 9, 13, 14, 16 AND 17 OF TABLE A THEREOF.THE FIELDWORK WAS COMPLETED ON 02/11/2022.DATE OF PLAT OR MAP: 02/24/2022.NO ZONING INFORMATION PROVIDED AT THE TIME OF SURVEY.THE SURVEY SHOWS THE LOCATION OF UTILITIES EXISTING ON ORSERVING THE SURVEYED PROPERTY AS DETERMINED BY OBSERVEDEVIDENCE COLLECTED PURSUANT TO ALTA SECTION 5 E IV55 56