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Home My WebLink AboutPhelopateer, LLC Agreement -2002 09 25 '<~ ." . oi .. . AGREEMENT THIS AGREEMENT, made and entered into as of the ~r~ay of ~. 2002, by and between PHELOPATEER, LLC, a Florida limited liability company, whose address is 1348 Valley Pine Circle, Apopka, Florida 32712 ("Phelopateer"), and THE CITY OF WINTER SPRINGS, a Florida municipal corporation, whose address is 1126 East State Road 434, Winter Springs, Florida 32708-2799 (the "City"); WIT N E SSE T H: WHEREAS, Phelopateer is the fee simple owner of that certain real property situate in Seminole County, Florida and more particularly described on Exhibit "A" attached hereto (the "Property"); and and WHEREAS, Phelopateer is successor in interest to A V A Anthony, Inc., a Florida corporation; WHEREAS, on April 10, 2000, the City's Code Enforcement Board ("Code Enforcement") issued an Order Imposing PenaltyILien (the "Order") on the Property due to various code enforcement violations ($100.00 per day - the "Fine") and the Order was recorded on April 24, 2000 in Official Records Book 3837, Page 766, of the Public Records of Seminole County, Florida, thereby constituting a lien against the Property (the "Lien"); and WHEREAS, on April 30, 2001, the City filed a Complaint in Seminole County Case No. 01- CA-970-16-K, City of Winter Springs v. AVA Anthony, Inc., requesting a permanent injunction for abatement of nuisance on the Property (the "City Lawsuit"); and WHEREAS, on May 10,2001, the City recorded a Notice of Lis Pendens, in which it sought the abatement of a public nuisance on the Property, in Official Records Book 4074, Page 1519 of the Public Records of Seminole County, Florida (the "Lis Pendens"); and WHEREAS, on October 16, 2001, the City filed a Verified Answer and Cross claim in Seminole County Case No. 01-CA-2105-14-L, D&F Financial Services v. AVA Anthony, et al., requesting a final judgment of foreclosure in its favor based on the outstanding and accruing Fine (the "D&F Lawsuit"); and WHEREAS, on March 8, 2002 the Property came into compliance with the City's Code and an Affidavit of Compliance was issued; and WHEREAS, on June 14, 2002, Phelopateer submitted an application for Satisfaction or Release of Code Enforcement Lien, pursuant to City Ordinance No. 2001-62, with respect to the Lien; and WHEREAS, on June 18, 2002, the Winter Springs Code Enforcement Board considered the Application and recommended to the City Commission that the Fine be reduced to $10,000.00 in 038438\90190\574756\4 .~ exchange for Phelopateer's agreement to waive any vested rights claims that it might have with respect to the Property; and WHEREAS, on July 8, 2002, the City Commission considered the Application and reduced the Fine to $12,500.00, conditioned upon Phelopateer's agreement to waive any claims of vested rights to construct a gasoline station that it might have had prior to July 8, 2002 with respect to the Property; and WHEREAS, Phelopateer desires to waive any claims of vested rights to construct a gasoline station on the Property that it might have had prior to July 8,2002 with respect to the Property; and WHEREAS, the City desires to discharge the Lis Pendens, dismiss the City Lawsuit, satisfy the Lien and dismiss the D&F Lawsuit with prejudice. NOW THEREFORE, for and in consideration of the premises hereof and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Phelopateer and the City do hereby covenant, stipulate and agree as follows: 1. Subject to and conditioned upon the City's (i) recordation of a discharge of the Lis Pendens, (ii) recordation of a satisfaction of the Lien, (iii) filing of a dismissal with prejudice of the City Lawsuit, and (iv) filing of a dismissal with prejudice of the D&F Lawsuit, Phelopateer does hereby waive any claims of vested rights to construct a gasoline station that it might have had prior to July 8, 2002 with respect to the Property including, but not limited to, any vested rights which it might have under the "Site Construction Plans for Texaco," which were prepared by Kimley-Horn and Associates, Inc. in or about February 1999 ("Site Plan"), and filed with and approved by the City of Winter Springs. Further, Phelopateer hereby agrees that the Site Plan and any other permits issued by the City in furtherance of the Site Plan have expired and are null and void. 2. Simultaneously with execution of this Agreement by the City, the City does hereby agree to (i) discharge the Lis Pendens of record by properly executing the Notice of Discharge of Lis Pendens attached hereto as Exhibit "B"; and (ii) satisfy the Lien of record by properly executing the Satisfaction of Lien attached hereto as Exhibit "C," and record both in the Public Records of Seminole County, Florida. The City further agrees to (i) file a dismissal of the City Lawsuit with prejudice by properly executing the Dismissal with Prejudice attached hereto as Exhibit "D," and (ii) file a dismissal of the D&F Lawsuit with prejudice by properly executing the Dismissal with Prejudice attached hereto as Exhibit "E," and file both with the Circuit Court of the Eighteenth Judicial Circuit in and for Seminole County, Florida. Additionally, the City agrees to execute other documents reasonably required to discharge the Lis Pendens, satisfy the Lien of record, and dismiss the City Lawsuit and the D&F Lawsuit. 3. This Agreement shall be binding upon and inure to the benefit of Phelopateer and the City and their successors and assigns. 4. City and Phelopateer shall bear their own attorney's fees and costs which were incurred in the D&F Lawsuit, the City Lawsuit, and in preparing this Agreement. 038438\90190\574756\4 2 ..... ~ . . IN WITNESS WHEREOF, the undersigned Phelopateer and the City have executed this Agreement in manner and form sufficient to bind him as of the date set forth above. Signed, sealed and delivered in the presence of: ~fb,~~ N7~.~ PHELOPATEER, LLC, a Florida limited liabili~ c~ '-'- -::> ~ By: Kamil Gowni, Member STATE OF FLORIDA COUNTYOF ~~L- The foregoing instrument was acknowledged before me this 13" day of Sa 'f'+-- .2002 by Kamil Gowni, as Member ofPhelopateer, LLC, a Florida limited liability company, on behalf of the company. He is personally known to me or has produced as identification. (NOTARY SEAL) 2 ~ ~ Notary PU~C Signa~ ~ Typed/Printed Notary Name Commission No.: My Commission Expires: 038438\90190\574756\4 3 ?" .. ~ ~I!~ Name: b ePx .hUM t!I: r:A:?AIV~L./;\) CITY OF WINTER ~,flUNGS, ( .." a Florida municipal ~orporatiqn ) By: I~ U .1Hdi ,L::> -: Ronald W. McL:eznor~; City Manager '. Name: /;1;,//1 t" < k tA. {p STATE OF FLORIDA COUNTY OF $2:t-(lNQ~ The foregoing instrument was acknowledged before me this ~ day of ~~ 2002 by Ronald W. McLemore, as City Manager ~ the CITY OF ~R SPRINGS, a Florida municipal corporation, on behalf of the corporatio~she is ~s6nany ~ me or has produced as identification. ~ . ---0- (NOTARY SEAL) ( . L(LM~___ Notary PU~lgnature ~CQJ.- ~.- L..cALt::.-S) Typed/Printed Notary Name Commission No.: My Commission Exp ACES ISSION # CC 831931 EX~IRES: MaY 9. 2003 1-8Ol>3-NOTAAY Fie. ~!ll"ay Service & EklncIng Co. 038438\90190\574756\4 4 -. _._-O~.~"T<~~";"",~r''IP.'.j.;'>;"p(.,~~.~,-...._~",_.:h.:,'.';. "'_,,,:0.,;;..',,",- ."'. .. EXHmIT "A" Parts of Lots 30 and 51 plus vacated street between. Begin 25 feet North plus 50 feet West of the NE Comer of Lot 51. Run South 72038'37" West 437.1 feet, thru North 17021 '23" West 190.5 feet, then North 72038'37" East 493.41 feet, then South 198.65 feet to the point of beginning (less road), ENTZMINGER FARMS ADDITION NO.2, as recorded in Plat Book 5, Page 9 of the Public Records of Seminole County, Florida, LESS AND EXCEPT that property conveyed by Public Purpose Deed recorded in Official Records Book 3707, Page 808, Public Records of Seminole County, Florida, more particularly described as follows: Begin at a point 25.00 feet North and 50 feet West of the Northeast comer of Lot 51, Entzminger Farms Addition No.2, according to the plat thereof as recorded in Plat Book 5, Page 9, Public Records of Seminole County, Florida; thence South 72038'37" West for a distance of 8.34 feet; thence North 00053'23" West along a line 33.00 feet West of and parallel to the centerline of Hayes Road as described in O.R. Book 1042, Page 220, Public Records of Seminole County, Florida, for a distance of 186.80 feet; thence South 54007'23" East for a distance of9.99 feet; thence South 00053'23" East along the existing Westerly Right-of-Way line of said Hayes Road for a distance of 178.46 feet to the POINT OF BEGINNING. 038438\90190\574756\4 5 BROWN, WARD, SALZMAN & WEISS, P.A. Attorneys at Law Usher L. Brown t Suzanne D'AgrestaD Anthony A. GarganeseD Gary S. Salzmano John H. Ward t Jeffrey S. Weiss Offices in Orlando) Kissimmee, Cocoa & Vlera Debra S. Babb Jeffrey P. Buak John U. Biedenharn, Jr. Joseph E. Blitch Scott D. Danahy Jennifer A. Michael Todd K. Norman Michelle A. Reddin Vincent E. Scarlatos tBoard Certified CMI Trial Lawyer oBoard Certified Business Litigation Lawyer DBoard Certified City, County & Local Government Law Erin J. O'Leary Of Counsel November 4, 2002 SENT VIA HAND DELIVERY Andrea Lorenzo-Luaces, City Clerk City of Winter Springs 1126 East State Road 434 Winter Springs, Florida 32708-2799 RE: CITY OF WINTER SPRINGS v. AVA ANTHONY, INC. OUR FILE NO. 315-001 Dear Andrea: For safe keeping, please find enclosed the following: . Original Agreement between City of Winter Springs and Phelopateer, LLC · Photocopy of recorded Satisfaction of Lien . Photocopy of recorded Notice of Discharge of Lis Pendens . Photocopy of recorded Notice of Release of Lis Pendens In Lien Foreclosure Action . Photocopy of recorded Notice of Voluntary Dismissal These documents finalize the implementation of the above referenced agreement. Should you have any questions, please do not hesitate to telephone me. Anthony A. Garganese City Attorney AAG/lfk Enclosures F:\Docs\City of Winter Springs\Ava Anthony - Texaco\Correspondence\LuacesLetterWithOriginaIDocuments110402.wpd 225 East Robinson Street, Suite 660 . P.O. Box 2873 . Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596. KlssImmee(321) 402-0144. Cocoa & Viera (866) 425-9566 Website: www.orlandolaw.net '. Email: firm@orlandolaw.net ,., .,T-,';:'r'i1:O':["~-:-:'----:-""~-'--' ,.-_.-.~--~.---" - -- - '_":'.,:":~."i:..---~~-~-,._----~:"-~,.~:~,,~,T~~'0~~;~--T'~-;,"'7'^"~~ry-"~.;:-cT"~'; BROWN, WARD,.SALZMAN & WEISS, P.A. Attorneys at Law Usher L. Brown + Suzanne D'Agrestaa Anthony A. Garganesea Gary S. SaJzmano John H. Ward + Jeffrey S. Weiss Offices in Orlando) Kissimmee, Cocoa & Vlefa Debra S. Babb Jeffrey P. Buak John U. Bledenham,Jr. JosephE; Blitch Scott D. Danahy Jennifer A. Michael Todd K Norman Vincent E. ScarIatos +Board Certified Civil Trial ~ oBoard Certified Business Utlgatlon Lawyer aBoard CertIfIed City, County & Local Government Law Erin J. O'leary Of Counsel November 4, 2002 Aaron J. Gorovitz, Esquire Lowndes Drosdick Doster Kantor & Reed, P.A. 215 North Eola Drive Orlando, Florida 32801 Re: City of Winter Springs v. AVA Anthony, Inc. Our File No. 315-001 Dear Aaron: Enclosed please find the original recorded Satisfaction of Lien for the above referenced matter. Also enclosed are copies of the recorded Notice of Discharge of Lis Pendens; Notice of Release of Lis Pendens in Lien Foreclosure Action; and Notice of Voluntary Dismissal. Now that the City has fully complied with the requirements in Section 1 of the Agreement dated September 25, 2002, Phelopateer has waived all vested rights and cl~ims to construct a gasoline station at the subject property. I am glad we were able to reach a mutually acceptable resolution to this matter. If you have any questions or concerns, please call. Anthol1Y . Garganese City Attorney AAG:lfk Enclosures F:\Docs\Clty of Winter Springs\Ava Anthony. Taxaco\Correspondence\GorovitzRecordedUel1Sat.wpd '- 225 East Robinson Street, Suite 660 . P.O. Box 2873 . Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596. KIssimmee (321) 402-0144. Cocoa & VIera (866) 425-9566 Website: WNW.orlandolaw.net . EmaU: f1rm@orfandolaw.net