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HomeMy WebLinkAboutTuscawilla Homeowners Association Public Improvements and Maintenance Easement and Agreement 2001 05 15 .~ ( ( ..;:- co U) .:) oc ,.., .::> '"T 3': ;...; -r :<: ' . a P' r r- ,.., ^' n rrl 0 0 C) .." ~~~ r ;0 c.n ~f./l .c CD Prepared by and return to: Anthony A. Garganese, City Attorney City of Winter Springs 1126 East State Road 434 Winter Springs, Florida 32708 PUBLIC IMPROVEMENTS AND MAINTENANCE EASEMENT AND AGREEMENT THIS EASEMENT and AGREEMENT is made this /5'!.k day of~, 2001, by TUSCAWILLA HOMEOWNERS' ASSOCIATION, INC., a Florida Not-for-Profit Corporation having a mailing address of Post Office Box 195666, Winter Springs, Florida 32719 (hereinafter called "the Association"), and the CITY OF WINTER SPRINGS, FLORIDA, a Florida Municipal Corporation, having a mailing address of 1126 East State Road 434, Winter Springs, Florida 32708 (hereinafter "the City"). WITNESSETH: WHEREAS, the Association is a homeowners' association organized under the laws of Florida and operating in Seminole County, Florida within a residential community commonly known as "Tuscawilla" located within the City of Winter Springs, Florida; and WHEREAS, the Association is the sole owner in fee simple of certain real property located within the City; and WHEREAS, this Public Improvements and Maintenance Easement and Agreement is to facilitate and is consistent with the Tuscawilla Lighting and Beautification Project (hereinafter "the Project"), as adopted by the City in its Ordinance No. 98-704, which creates a lighting and beautification district, terminable pursuant to the terms of Resolution No. 99-884; and -.J CJ -..J (J\ C> N C"') r ~3 7':;: o~ ." ... - ~-, ;:;z ;c:2 Of' c-: ='12. c-,::: :..:~~ c :::'l . -, .C). - --......... fTl r c:;- , - C- o- = :::::::J: Z C' r.,r Of N RoC ( ." << ::J: ("T1: N ;:0' ..,.,. C fT1 W C']' WHEREAS, the Association desires to convey an easement to the City over, under, and across a portion of the Association's real property, as legally deSCfibed~~" '" herein, for purposes of allowing the City to construct, operate, and maintain certain public improvements and other incidental appurtenances and accessories thereto which will be located on the easement property conveyed by the Association hereunder; anp ,. '''J < HQ!._ ...1(~I.;{""':';i~lta(y 8" rt +' --1.1 ~ .~ ~O\J "'" 8v: D.C. ""' .... (' ( WHEREAS, the Association, as fee simple owner of the easement property, also agrees to assist the City in obtaining any local, state, and federal permits required to construct the public improvements and any other incidental appurtenances and accessories thereto, but makes no warranties or guarantees regarding theCity's ability to acquire same; and WHEREAS, the Association and the City believe that this Public Improvements and Maintenance Easement and Agreement (hereinafter the "Easement") is in the beet 'Q) .:::::> interests of the public health, safety, and welfare of the citizens of Winter Springs an~ Seminole Cou'nty. ~ r I'Tl .....--.. co 00 8 .." ':":'1 :, NOW THEREFORE, in consideration of the enumerated public purposes state~ herein, and the mutual covenants, terms, and conditions and restrictions containep herein, together with other good and valuable consideration, the receipt and sufficiency of which is acknowledge, the Association and the City provide as follows: ;:, 1- ~u Pl c:> n ._ C-J :';5 (Jl ~ f/) '-.0 1. Grant of Easement. The Association hereby grants and conveys to the City, subject to any previously duly recorded easements or grants of record, a perpetual public improvements and maintenance easement over, under, and across the real property, described as follows: PARCEL 1: Tract "A", TUSCAWILLA UNIT 6, according to the plat thereof as recorded in P.B. 21, Pgs. 32 and 33, Public Records of Seminole County, Florida. PARCEL 2:- That certain.unlotted porti"o.n.ofWtNTERSPRINGS. UNIT-4, -.. .... lying due W of Lots 308, 309, 310, 329,330,331,332,347,348,349 and 392 of WINTER SPRINGS UNIT 4, lying S of Winter Springs Blvd. and E of Tuscawilla-Gabriella Rd., according to the plat thereof as recorded in P.B. 18, Pgs. 6-8, inclusive, Public Records of Seminole County, Florida. Also described as: Begin at the SW corner of Lot 308, WINTER SPRINGS UNIT 4, according to the plat thereof recorded in P.B. 18, Pgs. 6-8 of the Public Records of Seminole County, Florida; thence run the following courses and distances along the Westerly lines of Lots 308, 309, 310, 329-332, 347-349 and 392 of said WINTER SPRINGS UN I]". 4;.ND4.~5.4~15~'..e~_1.5.1..23';.N..43.~..2.5'40"_E~.24,6.96' tQ. th.e point of curvature of a curve concave Northwesterly having a radius of 1712.02' and a central angle of 18035'11 "; thence Northeasterly along the arc of said curve for a distance of 555.37' to a point of non- tangency; thence N 58015'21" E, 186.08'; thence N 23020'07" E, 172.42' 2 ~ c to a point Or! the Souther!~1 right-af-way line of Winter Springs Blvd. (120' right-of-way); thence run N 66039'53" W along said right-of-way line for a distance of 149.89' to the Easterly right-of-way line of Tuscawilla-Gabriella Rd.; thence run S 23020'07" W along said Easterly right-of-way line for a distance of 279.41' to the p.oint of curvature of a curve concave Northwesterly having a radius of 1670.02' and a .central angle of 20005'33"; thence run Southwesterly along the arc of said curve and said Easterly right-of-way line for a distance of 585.64' to the point of tangency; thence run S 43025'40" W along said Easterly right-of-way line for a distance of 475.19' to a point on the S boundary line of said WINTER SPRINGS UNIT 4; thence run S 85005'45" E along said S line for a distance of 176.67' to the POINT OF BEGINNING. (hereinafter the "Property") of the nature and character and to the extent hereinafter set forth. 2. Purpose of Easement and Agreement. This Easement is granted for the express purpose of allowing the City to perpetually use the Property to construct, operate, and maintain public improvements over, under and across the Property for the benefit of the public including, as reflected on Exhibit "A". It is further the express purpose of this Easement to allow the City to irrigate the Property and to maintain the lawn and plantings located thereon. It is also the express purpose of this Easement to provide the City ingress and egress to, over, across, under and from the Property for the purposes stated herein. It is also the express purpose of this Easement for the City to provide the Association assurances associated with the City's construction, operation and maintenance of these public improvements on the Association's property. 3. Rights ofthe City. To accomplish the purposes stated above, and at City's expense, the following rights are conveyed by the Association to the City by this Easement. a. To perpetually use the Property to construct, operate, and maintain public improvements as reflected on Exhibit "A" over, under and across the Property for the benefit of the public. b. To use this Easement for ingress and egress to any public improvement, utility facilities and appurtenances owned, designated, or operated by the City or constructed pursuant to this Easement. .c- UI 00 (I) c::::> O"'Tl ITl ;:lI;:""T') ::r n :z: l> 0 r r ,...., :::0 (") ,...., 0 C) n ''00 "'Tl "]>::::J r 01 C")~ !T) C) '0 .", .., ,..,.-...........____..............~.. _.-. 3 c. To use this Easement for purposes of providing water, sewer, stormwater, reuse, and electricity to or through the Property for the specific purposes only as described in Paragraph 3(a) hereinabove; d. To take any civil action deemed necessary, at City's sole and absolute discretion, to protect and preserve the Easement granted hereunder. 4. Duties ofthe City. To accomplish the purposes stated above, and at City's expense, the City shall assume the following duties: ~ 0 ::r :r. o r ~ ("") p C) .;::- UJ 00 C> -" .::~ -'1 a. The City shall insure the property and all the public improvements that it constructs and maintains on the Property consistent with this Easement and in perpetuity with named insureds being both the Association and the City; the City shall provide the Association with proof of said insurance five (5) days prior to commencement of construction or any preconstruction activities upon the subject property. The City shall further provide proof of renewal, change or cancellations of this insurance from time to time as necessary; c, ~:.> ,- :::0 ,-" n <:;0 .." > :;-J r- ~ =>5: '-J' ~, b. To the e>..1ent permitted by law, the City shall indemnify and hold the Association harmless from any liability associated with the City's rights received and used pursuant to this Easement; c. In the evenl of- the City's - n:iiluteH to corifpry "With its ., obligations to construct, operate, and maintain the public improvements as provided on Exhibit "A" hereto, the Association shall have the right to construct, operate, and maintain said public improvements to a standard as recognized on Exhibit "A" for which the City shall be responsible to reimburse the Association for its expenses associated therewith. However, prior to the Association exercising its right under this subparagraph' ,C':',.the~ AssoctatiOli'shaWftfsf')::rt61J1OertFie ,.. City written notice of its failure to comply and the City shall ' have a maximum of thirty (30) days to cure by performing the obligation set forth in the notice unless a greater period of time is agreed to by the Association and the City. The City 4 ( ( shall take reasonable precautions during the cure period, so as to avoid the degradation and destruction of the public improvements. d. As a condition to the Association's execution of this Easement, the City shall cause the contract for the construction of the public improvements, as provided on Exhibit "A" hereto, to be amended or modified to provide that the Association is a third party beneficiary to the rights of the City as against the other party to that contract to insure the proper completion of the terms of that contract by the contractor. This same contract (Exhibit "A"), as amended, shall similarly provide that the Association undertakes no responsibilities to the contractor whatsoever under the terms of the contract and the City agrees, to the extent permitted by law, to indemnify and defend the Association in the event of any claim brought by the contractor as against the Association. ;- ~ 00 en :::> 00 ,.., O~ ::t ;J;;~ 2: ,) 0 :D- r- ,.., :::u n r" 0 <::) ("") .." .00 >:::u , .::.J') =>5: ~1 f'0 5. Permits. The parties acknowledge that certain local, state, and federal permits may be required from time to time for purposes of constructing, operating, and maintaining the public improvements and other incidental appurtenances and accessory structures referred to herein. The Association, as fee simple owner of the Property, hereby agrees to allow the City to make application for said permits and also agrees to join in any said permit (as signatory or otherwise) when required by any permitting agency for issuance of the permit. Notwithstanding, the City shall be solely responsible and liable for. complying with any local, state, or federal permit requirements, obligations, and duties (if any) related to the construction, operation, and maintenance of the public improvements and other incidental appurtenances and accessory structures. 6. Unassiqnability. This Easement may not be assigned by the City by any deed or other conveyance conveying a portion of the Property relating to this Easement, whether or not the conveyance makes no reference to this Easement as such. Further, in the event that the Tuscawilla Beautification Project is terminated for any reason, then a notice of said termination may be recorded in the Public Rerords.. ...... ..--..."... in and for Seminole County, Florida which will simultaneously act to terminate this Easement. 5 ( 7. Attornev's Fees. In the event of any !egal action aflslng under this Easement between the parties, the parties shall each bear their own attorney's fees, court costs and expenses, through all appellate proceedings. 8. Recordation. The City shall record this instrument prior to commencement of any construction or preconstruction activities at the subject properties in the Official Records of Seminole County, Florida and may re-record it at any time as may be required to preserve its rights in this Easement. 9. 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. 10. The Association's Representations and Warranties. The Association hereby agrees and makes the following representations and warranties to the City: a. The Association is lawfully seized of said Property in fee simple and has the full and complete lawful authority to execute this Easement, convey the Easement to the City, and bind the Property as set forth herein. .&:- <.0 V> C> 00 fT! 0.." ;; ;:J;: .." :z 0 Cl ;> r- ,- fT! ;:u ("') a Pl p C) . 0 .." :;l.;:IJ ,..... 0) c;)~ 1TI W b. The Property is free of any and all encumbrances, except zoning restrictions and prohibitions and other requirements imposed by governmental authority and other encumbrances which are recorded in the public records of Seminole County, Florida. c. The Association sball..pay.ar:w--andh.alL.-taxes--and.---......---- assessments that are levied on the Property, from time to time, as said taxes and assessments come due (subject to Paragraph 11 (b) hereinafter). d. The Association hereby warrants the title to the Easement .granted hereunder over, under, and across the Property and will defend the same against the lawful claims of all persons whomever. 11. City's .Represe!:ltations .and .Wa.r.r.anties..- - T..he.City .here.b.y..a@rees..to. the....... . following duties and obligations to facilitate and assist the Association's representations and warranties contained in Paragraph NO.1 0 hereinabove: 6 ( ( a. The City shall procure, obtain and fund a title search to insure the Association's representations in Paragraph No. 10(a), 10(b) and 10(d) hereinabove; ..s::- UJ en r:::::> 0<:: ,..., 0-" :t ~-,. ~ G 0 ~ r- , ,..., C'") ~ ("rJ 9 <::> ("") ~ .~~ r- 0') Po ::'J<n .'"'l ..s::- b. The City acknowledges that the Association shall hav~ no responsibility for any additional taxes or assessments associated with the public improvements that are to be constructed on the Property associated with this Easement and if for some reason the public improvements become subject to taxation, City agrees to reimburse the Association for any taxes on the Property associated with the public improvements. 12. Entire Agreement. This Easement constitutes the full and entire agreement between the parties hereto and supercedes any oral or written prior communications between the parties related to the subject matter contained in this Easement. This Easement shall be governed by the laws of Florida. 13. Sovereign Immunity. Nothing contained in this Easement shall be construed as a waiver of the City's right to sovereign immunity under Section S768.28, Florida Statutes, or other limitations imposed on the City's potential liability under state or federal law. 14. Modification. This Easement shall only be modified by a written instrument executed by the parties hereto or any successor, assigns, heirs, or representatives thereto. IN WITNESS WHEREOF, the Association and City have set their respective hands on the day and year first above written. WITNESSES: /;;/~~ Print Name: h~....~ u)a.t.dP/t r~vh/u- Print Name: Per/nce Lca.ifI~'Z. I TUSCAWILLA HOMEOWNERSI ASSOCIATION, INC.: 7 r' { ( STATE OF FLORIDA ) COUNTY OF SEMINOLE ) '----' T e foregoing instrument was acknowledge and sworn to before me this 1~ay of~' , 2001,~ervin Warner, President of.Jhe Tuscawilla Homeow rs' Association, In~o-fS7is not personally known to me, or has produced as identification. '1"'- MARGIE A. SAMSONOFF ~ ~ COMMISSION # CC 727355 ~ ~' EXPIRES MAR 23, 2002 'VA: ~ BONDED THRU "("OF ~'-l' ',T! ~"nc RONDING CO., INC. ~4,,~~ NOTA Y PUBLIC By: ;( ~ jJ '~:f----:==> Ronald W. McLemore City Manager -s::- OJ en I:::J oc m 0-" ::t ^.." :z n 0 :t>- r- r m n ~ fTl P C> n "TI 'UO >::0 r- m C'>5: ,..." CJ1 CITY OF WINTER SPRINGS: STATE OF FLORIDA ) COUNTY OF SEMINOLE ) The foregoing instrument was acknowledge and sworn to before me this /6~day of --n1a ~ ' 2001, by Ronald W. McLemore, City Manager of the City of Winter Sprin s, Flonda, who IS/IS not personally~known to me, or has produced as identification. ~~tB~fi. F:\DOCS\City of Winter Springs\Tuskawilla\maintenance easemenl.wpd ..'.... De ."6 ... OOrah l Gillespie t~~ My Commission CC920806 ,.,,;1' ~March21,2004 8 " EXHIBIT "A" The Public Improvements to be constructed, operated, and maintained in accordance with this Easement are described in the City of Winter Springs Project Manual and Drawings entitled, Tuscawilla Lighting and Beautification District Entranceway Enhancements, sri document #98018 dated May 11, 1999, and drawings specifically related to the Winter Springs Boulevard and Tuscawilla Road entryways: G-I, 00-1, AO-I, AO-3, AO-4, AO-5, AO-6, AO-7. AO-8, L-9, LO-4, IR-9, IR-12, EO-I and EO-4. It is understood that the foregoing list of drawings defines the scope and intent of the Public Improvements. During construction of the improvements, minor modifications of the drawings are~ likely to occur. Recordation of the foregoing drawings shall not prohibit modifications to the; drawings provided such modifications do not change the scope and intent of the Public~ ~ Improvements. ("') ~ ...., Following the complete construction ofthe Public Improvements, the City shall cause an "As'- Built" engineer drawing ofthe Public Improvements to be recorded in the public records of Seminole County. The "As Built" drawing shall be mutually agreed upon by the Association and City prior to recordation. The "As Built" drawing shall fully replace this Exhibit "A". The construction contract for the Public Improvements (and other improvements not subject to this Easement) is between the City of Winter Springs and Cathcart Construction, dated September 28, 1999, in the original amount of$l ,707, 144.89, plus a cost revision in the amount of$48,368.25. ~ t.D 00 C) 0...., ;s;: "TI n l> - ::0 ;"1"l 0 " '00 1>0::0 0') :;)~ fTI 0') .""0'0......1 _ . _. _"'0 n.. 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