HomeMy WebLinkAboutKingsbury, Laverne & June Settlement Agreement - 2005 03 15
Prepared by and return to:
Jeffrey P. Buak, Assistant City Attorney
City of Winter Springs
1126 East State Road 434
Winter Springs, Florida 32708
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT is made and entered into the last date signed
below by and between the CITY OF WINTER SPRINGS, a Florida municipal corporation
("City"), having a mailing address of 1126 East State Road 434, Winter Springs, Florida 32708,
and LAVERNE W. KINGSBURY and JUNE L. KINGSBURY, a married couple
("Kingsbury"), having a mailing address of 150 Tuskawilla Road, Winter Springs, FL 32708
(hereinafter "Agreement").
WITNESSETH:
WHEREAS, Kingsbury is the owner of property addressed as 150 Tuskawilla Road,
Winter Springs Florida, and generally located at the southwest comer of Tuskawilla Road and
Blumberg Boulevard, and is identified by the Seminole County Property Appraiser's Office as
Parcel J.D. 26-20-30-5AR-OBOO-00U3; and
WHEREAS, chain-link fencing, owned by Kingsbury, located adjacent to Blumberg
Boulevard was removed, without Kingsbury's consent, during the construction of the Winter
Springs Town Center; and
WHEREAS, the City and Kingsbury have agreed any claim of damages by Kingsbury
can be fully resolved and settled by the installation of a new fence, as described herein, upon the
City's right-of-way adjacent to and bordering the Kingsbury property along both Blumberg
Boulevard and Tuskawilla Road; and
WHEREAS, the City believes this Agreement to be in the best interest of the public
health, safety, and welfare.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions
and restrictions contained herein, together with other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Incorooration of Recitals. The foregoing recitals are hereby incorporated
herein by this reference.
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2. Fence Replacement. The City hereby acknowledges and agrees that a six (6)
foot high chain-link styled fenced, owned by Kingsbury and located adjacent to Blumberg
Boulevard was removed during the construction of the Winter Springs Town Center, and while
the City does not admit responsibility or liability for the removal, the parties have agreed to
amicably resolve any such claims for damages by Kingsbury through the installation of a
replacement fence upon the City's right-of-way adjacent to and bordering the Kingsbury
property fronting on both Blumberg Boulevard and Tuskawilla Road, as more specifically
provided in the "scope of work" attached hereto as Exhibit "A," the same being incorporated
herein by this reference.
The replacement fence shall be constructed of a white vinyl picket-type fencing, no less
than four (4) feet in height, and substantially similar to the fencing depicted in Exhibit "B,"
which is attached hereto and incorporated herein by this reference.
The City agrees the installation of this replacement fencing shall be completed
expeditiously, however, delays in acquiring materials and labor may arise and could potentially
prolong construction efforts.
3. Temporary Construction Easement. Kingsbury hereby voluntarily grants
and conveys to City, its agents, employees, contractors, or subcontractors a temporary
construction easement over, under, and across a portion ofthe real property, generally described
as Tax Parcel Number 26-20-30-5AR-OBOO-00U3 ofthe nature and character and to the extent
hereinafter set forth ("Easement").
This Easement is granted for the express purpose of allowing City temporary access to
the Kingsbury property to construct a replacement fence, as described above. It is also the
express purpose ofthis Easement to provide City unconditional ingress and egress to, over, and
across the Kingsbury property lying within ten (10) feet of the location of the proposed fence for
the purposes stated herein.
A Memorandum of Easement referencing this Agreement shall be recorded, at the City's
expense, in the Public Records of Seminole County, Florida, following the effective date of this
Agreement. A termination of Easement shall be recorded, at the City's expense, in the Public
Records of Seminole County, Florida at such time as the fences has been constructed and
installed by the City.
4. Removal of Existine: Fence. Kingsbury hereby grants City permission to remove
and dispose of the existing chain-link fencing located adjacent to Tuskawilla Road at time of
construction of the replacement fencing.
5. General Release. Kingsbury, for and in consideration of installation of the
replacement fencing, as described above, does hereby freely and voluntarily, on behalf of
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themselves, their successors and assigns, hereby individually and for their heirs, executors,
administrators, personal representatives, successors and assigns hereby release, acquit and
forever discharge the City, its officers, employees, boards, board members, committees,
committee members, agents, lawyers, successors, and assignees thereof, and all other persons,
firms, corporations, or legal entities of City who are in privity therewith or might be liable in any
way, from any and all claims, actions, causes of action, legal, equitable or administrative
proceedings, demands, rights, damages, losses, costs, expenses, attorneys' fees and compensation
of whatsoever kind or nature which Kingsbury now has or which may hereafter accrue on
account of or in any way growing out of any and all known or unknown, foreseen and
unforeseen, developed and undeveloped loses, injuries or damages, and the consequences thereof
arising, or to arise from and resulting, or to result from, any and all decision, advice,
recommendations, or actions made by City at any time with regards to the removal of the above
described chain-link fencing.
Further, Kingsbury hereby acknowledges full and final settlement and satisfaction of any
and all claims, actions, causes of action, legal, equitable or administrative proceedings, demands
or rights of whatsoever kind or nature which we may have against City, by reason of the above
mentioned damages, injuries or losses. Kingsbury's General Release of the City shall become
effective at such time as the City completes the installation of the replacement fencing.
In making this release, it is understood and agreed that Kingsbury relied wholly upon
their own judgment, belief and knowledge of the nature, extent and duration of said losses,
injuries or damages and that no representations or statements regarding said loses, injuries or
damages or regarding any other matters made by the person(s), firm(s), corporation(s) or legal
entities of whatsoever kind or nature who are hereby released or by any other person or persons
representing him, her, it or them, has influenced Kingsbury to any extent whatsoever in making
this Release.
This release shall survive the termination of this Agreement provided the City has not
defaulted under the terms and conditions contained herein.
6. ' Attornevs Fees. In the event of any legal action arising under this Agreement
between the parties, the parties agree to incur their own attorney's fees, court costs and expenses,
through all appellate proceedings.
7. 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 and shall continue as a servitude running
in perpetuity with the Property.
8. Entire Agreement. This Easement constitutes the full and entire agreement
between the parties hereto and supercedes any oral or written prior communications between the
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parties related to the subject matter contained in this Easement. The laws of Florida shall govern
this Agreement.
9. Sovereie:n Immunitv. Nothing contained in this Agreement shall be construed
as a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or
other limitations imposed on the City's potential liability under state or federal law.
10. Modification. This Agreement shall only be modified by a written instrument
executed by the parties hereto or any successor, assigns, heirs, or representatives thereto.
11. Permits. City shall be solely responsible for complying with any local, state, or
federal permit requirements, obligations, and duties (if any) related to the construction, of the
replacement fencing located within the Kingsbury property.
12. Cooperation. City and Kingsbury shall cooperate fully with each other to
effectuate the terms, conditions and intentions of this Agreement. Further, each party agrees to
adjust, initial, re-execute and re-deliver any and all documents subject to this Agreement if
deemed necessary or desirable by one or the other of the parties.
13. Authority and Assie:nment. Each party hereby represents and warrants to the
other that they have full power and authority to enter into this Agreement.
14. Notices. Any notice required or allowed to be delivered hereunder shall be
in writing and shall be deemed to be delivered when: (a) hand delivered to the official hereinafter
designated, or (b) one day after deposit with a nationally recognized overnight courier service,
e.g. Federal Express, Purolator, Airborne, Express Mail etc., or (c) by facsimile delivery..
addressed to a party at the other address as specified below or from time to time by written notice
to the other party delivered in accordance herewith:
Kingsbury:
Mr. & Mrs. Kingsbury
150 Tuskawilla Road
Winter springs, FL 32708
Phone: 407-327-1916
With copy to:
Oswald & Oswald, P.L.
600 Courtland Street, Suite 110
Orlando, FL 32804
Phone: 407-647-3738
Fax: 407-647-6283
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City:
City of Winter Springs
Attention: City Manager
1126 East State Road 434
Winter Springs, FL 32708
Phone: 407-327-1800
Fax: 407-327-4753
With copy to:
Anthony A. Garganese, Esq.
City Attorney for the City of Winter Springs
Brown, Garganese, Weiss & D'Agresta, P.A.
225 E. Robinson Street - Suite 660
POBox 2873
Orlando, FL 32802
Phone: 407-425-9566
Fax: 407-425-9596
15. Defaults. Failure by either party to perform each and every one of its
obligations hereunder shall constitute a default, entitling the no defaulting party to pursue
whatever remedies are available to it under Florida law or equity including, without limitation,
an action for specific performance and/or injunctive relief. Prior to any party filing any action as
a result of a default under this Agreement, the non-defaulting party shall first provide the
defaulting party with written notice of said default. Upon receipt of said notice, the defaulting
party shall be provided a thirty (30) day opportunity in which to cure the default to the
reasonable satisfaction of the non-defaulting party prior to filing said action. The prevailing
party in any litigation arising under this Agreement shall be entitled to recover its reasonable
attorney's fees and costs, whether incurred at trial or appeal.
16. Applicable Law and Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida. Venue for any state court action
shall be exclusively in Seminole County, Florida, while venue for any federal court action shall
be exclusively in the United States Middle District Court of Florida, Orlando Division.
17. Severability. If any provision of this Agreement shall be held to be invalid or
unenforceable to any extent by a court of competent jurisdiction, the same shall not affect in any
respect the validity or enforceability of the remainder of this Agreement.
18. Effective Date. This Agreement shall become effective upon approval by
the City Commission of Winter Springs and execution of this Agreement by both parties (the
"Effective Date").
19. Force Maieure. The parties agree that in the event that the failure by either
party to accomplish any action required hereunder within a specified time period ("Time Period")
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constitutes a default under the terms of this Agreement and, if any such failure is due to any
unforeseeable or unpredictable event or condition beyond the control of such party, including,
but not limited to, acts of God, acts of government authority (other than the City's own acts), acts
of public enemy or war, riots, civil disturbances, power failure, shortages of labor or materials,
injunction or other court proceedings beyond the control of such party, or severe adverse weather
conditions ("Uncontrollable Event"), then, notwithstanding any provision of this Agreement to
the contrary, that failure shall not constitute a default under this Agreement and any Time Period
proscribed hereunder shall be extended by the amount of time that such party was unable to
perform solely due to the Uncontrollable Event.
20. Interpretation. The parties hereby agree and acknowledge that they have
both participated equally in the drafting of this Agreement and no party shall be favored or
disfavored regarding the interpretation of this Agreement in the event of a dispute between the
parties.
21. Third Party Riehts. This Agreement is not a third party beneficiary contract and
shall not in any way whatsoever create any rights on behalf of any third party.
22. Counterparts. 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.
[Left Blank Intentionally, Signatures Follow]
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IN WITNESS WHEREOF, this Agreement has been executed by the parties as of the
dates hereinafter set forth.
ATTEST:
CITY OF WINTER SPRINGS:
Andrea Lorenzo-Luaces, City Clerk
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By: J~?~'// C-./. ~;t2 ~
~ V,'. McLemore, City Manager
Date: J ~ I ~ ~ 0 S'- '_' 2005
WITNESSES:
KINGSBURY:
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Date: fY1o....rch ~ ,2005
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STATE OF FLORIDA
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COUNTY OF \.)6rfl 'i -.J 0 L f=--."
The foregoing instrument was acknowledged and sworn to before me this g-::!'- day of
rY'i '1 r~-'~ , 2005, by Laverne W. Kingsbury, ~'who is personally known to me or D has
produced as identipt\atf0.
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NOTARY PUBLIC
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ST ATE OF FLORIDA
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The foregoing instrument was acknowledged and sworn to before me this g-r.A~ day of
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