877-Eoghan Kelley AGREEMENT BETWEEN CITY OF SANFORD AND EOGHAN N. KELLEY
(CONSTRUCTION OF ST. JOHNS PARKWAY AND
PERMANENT DRAINAGE EASEMENT)
d of Ma
THIS AGREEMENT is made and entered into thisdcy of ay . rch~
2001, by and between ~OGHAN N. K~LLEY ("Kelley"), whose address is PHB
D82 S.R, ~, New Smyrna Beach, FL ~2~68, HAROLD G. HA~TSOCK, T~USTEE OP
S~MINOLE FARMS T~gS~ IV ("Trustee"), whose address is ~3~ East Second Street,
Sanford, FL 3277~ and LINDA HAZSONNEUVE HZLLER, as Pe~onal Representative
of the Estate of Viola Kastner C'Kastner'% whose address is 2~5 N. Eola Drive, Orlando,
FL 3280~ (hereineffer collectively referred fo os "Grantor") end the CITY OF
SANFORD, a Florida municipal corporation, whose mailing address is Post Office Box
1788, Sanford, Florida 32772-1788, (hereinafter referred to as "Grantee"),
WIINE$SETH:
WHEREAS, Grantor is The owner in fee simple of ceriGin re~l property located
in Seminole County, Florida, more particularly described on Exhibit "A" attached
hereto and by this reference made a part hereof (hereinafter referred to as
"Grantor's Property"); and
WHEREAS, Grantee intends to construct St Johns Parkway in Sanford, Seminole
County, Florida, such roadway to be herein known as "St. Johns Parkway" or "St.
Johns Parkway Pill" or the "Benefited Property"; and
WHEREAS, Grantor intends to grant a perpetual, non-excbsive, permanent
easement to Grantee over a portion of Grantor's Property (to be called the
"Easement Area") for the purpose of allowing Grantee to co~struct and maintain
drainage and retention facilities (herein referred to as the "Stormwater Ponds") to
sere St. Johns Parkway; and '7~ ~
[ ............... Int~ng~le Tax P~
' ' WHEREAS, the Grantee has requested GrantgL~,l~r,~l',[i~,rc!'ertain rights over,
under through and across the Easement Area for the benefit of St. Johns Parkway;
and
WHEREAS, Grantor, as fee simple owner of the Easement Area, has agreed to
give (and has given) the right-of way for St. Johns Parkway and to grant a non-
exclusive easement for drainage and retention purposes in, to, over, upon and
across the Easement Area, upon certdin terms and conditions more particularly set
forth below (collectively, construction of the improvements within the Easement
Area, grading and filling of Grantor's PropeHy, as described beloQ, excavation and
construction of the Stormwater Ponds, construction of the Permanent Drainage
Easement and construction of St. Johns Parkway is sometimes hereinafter referred
to as the "Project"):
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and of other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. Recitals. The recitals set forth above are true and correct and the same are
incorporated herein by reference.
2. Plans and Specifications. On or before March 15, 2001, Grantee will prepare or cause
to be prepared plans and specifications (the "Plans and Specifications") for the Project.
Prior to submittal of the Plans and Specifications to St. Johns River Water Management
District and/or other applicable governing authorities, Grantee will submit the same to
Trustee, Kastner and Kelley for review and approval by engineers for Trustee, Kastner
and/or Kelley. The consent of Kelley, Kastner and Trustee shall.not be unreasonably
withheld or delayed, but Trustee's, Kastner's and Kelley's consents may be premised upon
the satisfaction by the Grantee of the obligations set forth in Paragraph 3 and Paragraph 4,
below. Trustee, Kastner and Kelley shall review or cause the Plans and Specifications to be
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' ' reviewed within ten (10) days of their submittal and will provi~l~:~a3~lt~e with any
obje~ions or commen~ regarding the Plans and Specifications in writing.
3. DesiGn, Fill and Construction Reouirements. (a) The Grantee agrees to design
St. 3ohns Parkway so that the resulting elevations of the lands bordering St. 3ohns Parkway
within the entire Grantor's Property is at or near (near being defined as no greater than .5
feet) the same elevation as St. 3ohns Park'way to the greatest extent possible, noting that
the final grade of the Grantor's Property may include swales, ditches, or other means to
convey onsite and offsite runoff to the Stormwater Ponds and/or the e~isting outfall(s). As
it relates to filling and grading of Grantor's Property, the Plans and Specifications will be
consistent with the concept and parameters set forth in the cross section attached hereto
as Exhibit C. The Grantee further agrees that the design of St. 3ohns Parkway will employ
engineering techniques that are suitable for minimizing the elevation of St. 3ohns Parkway
and minimizing the area required for the drainage and retention ponds referred to in
paragraph 4. below. During preparation of the Plans and Specifications, Grantee's
engineers will consult with Grantor's engineer, and each will cooperate with the other, in
good faith, with respect to design of the Project and, specifically, with respect to the
elevation of St. 3ohns Parkway. It is the intent of the parties that innovative, sound
engineering and construction-techniques be used in the design and construction of'St.
3ohns Parkway, so as to cause St..lohns Parkway to be constructed at the lowest elevation
reasonably practicable.
(b) The Grantee agrees to fill the Grantor's Property (excluding the approximately
31.9 acre parcel which may be acquired by Wal-Mart Stores, East, Inc. C'WaI-Mart") and
the approximately 7.2 acre parcel of Trustee's property south and west of the Wal-Mart
property) from the St. 3ohns Parkway south to the southern line of Grantor's Property at an
elevation equal to or greater than the finished paved St. 3ohns. Parkway road grade to the
greatest extent possible utilizing the extracted fill from the construction of the Stormwater
Ponds in excess of the fill needed for St. 3ohns Parkway PIII; and the Grantee agrees to fill
the Grantor's Property from the St. 3ohns Parkway north to the northern line of Grantor's
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Property at an elevation equal to or greater than the ~nish~II~agl~t ~,,~bhns Parlay road
grade to the greatest e~ent possible utilizing the e~ra~ed fill from the construeion of the
Stormwater Ponds in excess of the fill needed for St. 3ohns Parlay PIII. The material
used for fill shall be free from organic material, and be of a quali~ acceptable to Kelley's
engineer. All organic material and unusable overburden shall be removed from the
Grantor's Prope~ by the Grantee. Grantor shall be responsible for removing wetlands and
organic materials in wetlands. Grantee ~hall spread and grade fill materials in wetlands
a~er Grantor has removed vegetation and organic material. The source of fill shall include
material excavated from drainage retention ponds to sere Rineha~ Road and St. 3ohns
Parlay. Grantee shall use whatever acceptable fill remains from the excavation of the
Stormwater Ponds a~er excavated fill from the Stormwater Ponds is used for the a~ual
road construeion of St. 3ohns Parlay, and said fill shall be described as "~cess Fill", for
spreading and grading by Grantee. In excavating the Stormwater Ponds, Grantee will use
i~ best effo~s to recover as much sui~ble fill as is reasonably pra~icable and, to the
e~ent it is required to raise the bosom of the excavated Stormwater Ponds, it will do so by
using unacceptable fill material from the remainder of Grantor's Prope~. In addition, and
if necessa~, Kelley shall be pertained to remove trees on the Kelley prope~ situated at
the noaheast quadrant of the interse~ion of Rineha~ Road and S.R. ~6A and known as the
Southridge Prope~ in order to relocate fill to the Eastgate prope~ to complete the ~ll'ing
of Grantor's Prope~. The amount of available fill from the Southridge Prope~ and the
finished grade a~er fill removal shall be established by Kelley's engineer. Any fill in excess
of the Excess Fill which is necessa~ to complete the filling and grading in accordance with
the Plans and Specifications shall be supplied and brought to the site by Grantor. The
Grantee shall spread and grade Excess Fill and fill supplied by Grantor over Grantor's
Prope~ in accordance with the grading plan which is a pa~ of the Plans and
Specifications. The grading and fill work described in this Paragraph 3 shall be performed
concurrently with construeion of St. 3ohns Parkway and completed no later than ~5 days
from the completion of St. 3ohns Parkway.
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c. Grantee anticipates and will use its best efforts ar~iJbLt~o(]ee~ diligently to
accomplish design and pertaining of the Proje~ by Nay 3~, 200~, le~ing or construeion
bids by July 3~, 200Z, commencement of construeion by September 30, 200~ and
4. Drainaae Easement. Grantor shall declare, create, grant, cOnve~pos
under, upon, across and through the Easement Area (the "Permanent Drainage
Easement"), for the purposes of (a) allowing stormwater drainage and runoff from
St. Johns Parkway and the Granfor's Property into the Easement Area (b') providing
for the retention and storage of such stormwafer drainage and runoff in the
Easement Area for approximately 7 acres of St. Johns Par~oy (c) accommodating
the installation and maintenance of facilities related fo the Permanent Drainage
Easement with fuji fight fo use and enjoy oil pipes, culverts and other drainage
facilities and equipment sewing St. Johns Parkway (heroinoffer referred to as the
"Drainage Facilities") now or hereafter located or constructed within the Easement
Area; and (d) entering upon the Easement Area for the purpose of installing,
constructing, operating, inspecting, maintaining repairing and replacing the
Drainage Facilities, all on the farms and subject fo the conditions heroinafter set
forth. In the event the legal description(s) of the Easement Area has not been
determined as of the date of this Agreement, the parties shall attempt fo mutually
agree on the legal description of the Easement Area in accordance with the
guidelines and parameters set forth in this Agreement. The general location(s) of
the Easement Area shall be as shown in Exhibit B. Af fbe option of Grantor,
additional drainage and/or retention pond area (the "Additional Drainage
Area")moy be made a pad of the Easement Area fo accommodate stormwafer
drainage and retention requirements for the development and construction
contemplated for the remainder of Gronfor's Property (except for ~he land to be
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" conveyed to WaI-Mart). So long as the additional Drainc~l~lNA~iqeli~lentified by
Grantor prior to Grantee's completion of the Plans and Specifications, the
Additional Drainage Area shall be included in the Plans and Specifications and
shall be constructed by Grantee, af Grantee' s cost, and maintained by Grantee af
Granfee's cost thereafter. The Grantor shall grant a 15 foot easement fo.r the pond
outfall piping and existing ditch. The Grantor, its successors and assigns have the
Area and the Drainage Facilities at Grantee's expense Grid in accordance with the
approved Plans and Specifications. The Grantee, at its sole cost and expense, as
owner in fee simple of the Benefited Property, shall construct and install
Drainage Facilities within the Benefited Property which the Grantee deems
BecessaN for the Project, all in good and workmanlike manner. The Drainage
Facilities within the Benefited Property shall be sized and constructed by the
Grantee to allow future development on the Grantor's property (25.5 Acres} to
discharge direct to the St. Johns Parkway drainage system. In addition, water,
forcemain and reclaimed wafer lines will be extended by Grantee to the Grantor's
propedy lines adjacent fo St. Johns Parkway for future service.
6. Maintenance Of Drainage Facilities. Grantee, at its sole cost and expense, shall
be responsible for and hereby agrees to perform all maintenance and repair
activities necessary or required in order to keep and maintain the Stormwater Ponds
and the Drainage Facilities in good order and repair in ac,cordance with City of
Sanford maintenance standards. in addition, Grantor shall have the right to
maintain the Stormwater Ponds and the Draina e Facilities shoul ee fail to
properly do sot~ln that event Grantee shall promptly reimburse the cost
incurred by Grantor in perfo;ming the maintenance w rk.
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0FF~CIAL ttEC0?RA0~E
·:
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7. Welland Miliqotion. Grantee shall, of its expense, cause the identification and
suNey of jurisdictional wellands affecting St. Johns Parkway and any contiguous
jurisdictional wellands tocofed on the podion of Grantor's Property adjoining St.
Johns Parkway. Gronfor's engineer shall be entitled to offend ond participate in
the process of identifying and surveying the jurisdictional wetlands. Immediately
offer the identification and surveyi~g of the above-described jurisdictional
weftands, Grantee shall arrange and at ~heir cost obtain oil permits necesso~ for
mitigation of the above-described weftands. Grantor and Grantee shall pay
mitigation costs for wellands On their property, respectively; provided, however,
mitigation costs shall be paid by Grantor and Grantee of the some roles. Grantor
shall hove the fight to review and approve the plans end costs for mitigation of the
jurisdictional we~londs described in this paragraph, which review and approval fight
shall include the ability fo propose alternatives fo the plans submitted by Grantee.
8. Duration. The Permanent Drainage Easement hereby granted, created and
declared shall be perpetual in duration and may not be changed, amended,
modified, cancelled or terminated other than as expressly provided herein, except
by an instrument in writing, executed by the then owners of the Benefited Property
and the Easement Area.
9. Grantee's Activities. Grantee hereby agrees to conduct all activities in the
Easement Area authorized by this Permanent Drainage Easement in accordance
with any applicable St. Johns River Water Management District Permits.
10. Indemnification. Grantee hereby agrees to indemnify. and save Grantor
harmless from and against all losses, costs, expenses, claims, damages,judgments,
liabilities and causes of action whatsoever (collectively, "Claims") including
reasonable attorneys' fees and paralegal fees both in trial and appellate levels,
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a~ising out of or alleged to have arisen out of or been oc¢_~t~B~6~c~Pi~vho~e or in
part, by the acts or omissions of Grantee, its empbyees, agents, licensees,
independent contractors, consulfonts, guests, cusfomers, or invitees for injury,
death, and/or property damage occurring on the Easement Area; provided,
however, that Grantee shall not be required to indemnify Grantor for any Claims to
the extent such Claims arise out of or are occasioned by the intentional or grossly
negligent actions of the Grantor. In ad~Jition, Grantee agrees to defend, indemnify,
and hold harmless Grantor from and against any and all claims for which a
mechanic's materialmen's or any other lien may be asserted by any person or
entity against the Easement Area as ;a result of actions of the Grantee.
11. Incidental Riahts. The Permanent Drainage Easement hereby created and
granted includes the creation of all incidental rights reasonably necessary for the
use and enjoyment of the Easement Area for its intended purposes, including,
~pecifically, the right of entry for purposes of maintenance, operation, repair and
construction within the Easement Area of any Drainage Facilities now or hereafter
located therein, subject to the limitations set forth herein. The Grantor shall have the
right to discharge stormwater drainage and runoff to the Easement Area from
Grantor's contiguous property. At no expense to Grantee, Grantee agrees'to
cooperate with Grantor in permitting of the drainage facilities in the Easement Area
in the event the Grantor opts to change the size of the drainage facilities in the
Easement Area or the location of the Easement Area. Any redesign or relocation of
the drainage facilities located in the Easement Area shall provide the same or more
stormwater drainage capacity to Grantee than provided in this Easement, at no
expense to Grantee. Evidence of such relocation may, if neqessary, be e~idenced
by a recorded amendment to this Permanent Drainage Easement describing the
new easement areas.
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12. Default And Remedies. In the event either party fails to 1~rtfi~r-jfnc~rft- of the
covenants or meet any obligations imposed pursuant to this easement, the non-
defaulting party shall be entitled to all rights and remedies permitted by law.
including without limitation, the right to proceed in equity with an action for
injunction or specific performance to enforce its rights under this Agreement.
13. Notices. All notices required or perrfiitted hereunder shall be in writing and shall
be deemed to be given when delivered personally or by receipted overnight
delivery service, or three (3) days after mailing by registered or c'ertified U. S. Mail,
Return Receipt Requested, postage prepaid, addressed to the party for whom it is
intended as follows:
Grantee: Robert J. Walter, City Engineer
City of Sanford
P.O. Box 1788
Sanford, FL 32772-1788
With a copy to: Stenstrom, Mclntosh, Colbert, Whigham & Simmons, P.A.
Attorneys and Counselors at Law
200 West First Street
P.O. Box 4848
Sanford, FL 32772-4848
Grantors: Eoghan N. Kelley
PMB 354
1982 S.R. 44
New Smyrna Beach, FL 32168
Harold G. Hartsock, Trustee
Seminole Farms Trusf IV
1311 East Second Street
Sanford, FL 32771
Linda Maisonneuve Miller, as Personal Representative
Estate of Viola Kastner
c/o Lowrides, Drosdick, Doster, Kantor & Reed
215 E. Eola Drive
Orlando, FL 32801
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,.: fit.if,,,(
SEMINOLE C0.,FL
With o copy to: Stephen D. Feinberg, Esq.
Greenberg Traurig, P.A.
111 No. Oronge Avenue, FI 20
Oriondo, FL 32801
14. Entire Aareement. This document constitutes the entire agreement and
understanding between the parties relating to the subject matter hereof. This
document may not be amended, waived, or discharged, except by instrument in
writing executed by the party against which enforcement of su,ch amendment,
waiver or discharge is sought..
15. Severability. The validity of any one of the covenants, agreements, conditions,
or provisions of this easement, or any portion hereof shall not affect the remaining
portions hereof or any part hereof, and this easement shall be construed as if such
covenant, agreement, condition or provision had not been included herein.
16. Further Assurances. Grantor assures the Grantee that- Grantor lawfully owns the
Easement Area in fee simple; Grantor has good, right and lawful authority to
convey this Permanent Drainage Easement; Grantor fully warrants the title to the
Easement Area and will defend the Easement Area against the lawful claims of all
persons; the Easement Area is free and clear of all liens and encumbrances,
except those shown by the Public Records of Seminole County, Florida.
17. Miscellaneous. (a) With or without specific reference thereto, the conveyance
of an interest in any portion of the Easement Area or the Benefited Property shall be
subject to the respective burdens and benefits of the I~ermanent Drainage
Easement hereby created and granted to the same extent a~ if all of the terms of
this instrument were set forth in such conveyance in full. Thb easement, covenants,
agreements and conditions contained or expressed herein shall not be personal
(except as otherwise expressly provided herein) but shall run with the land and shall
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~,,, '~ ~AGE
be binding upon and inure to the benefit of the Grantor's~i'5~r%t the owners
thereof, owners of all or any portion of the Benefifed Property and the Easement
Area, their mortgagees, any purchaser at o foreclosure sale, each of the successors
and assigns of a[I such parties, as well as the agents, employees, confradors,
licensees, guests and invitees of each of them.
(b) In the event any legal action is' brought to enforce the terms, covenants, and
conditions of this Agreement, the prevailing party shall be entitled to recover from the non-
prevailing party its costs and attorneys' fees (including costs and attorneys' fees on
appeal).
(c) Any action brought to enforce the terms, covenants, and/or conditions of this
Agreement will be brought in the Circuit Court in and for Seminole County, Florida. Upon
completion of the drainage and retention ponds, they shall be surveyed and deeded to the
City of Sanford. The Property shall have an exclusive easement to use said ponds for
stormwater drainage.
(d) Harold G. Hartsock is executing this Agreement solely in his capacity as Trustee
and shall have no personal liability for or relating to the performance of the terms of this
Agreement.
(e) Linda Maisonneuve Miller is executing this Agreement solely in her
capacity as Personal Representative of the Estate of Viola Kastner and shall have
no personal liability for or relating to the performance of the terms of this
Agreement.
SIGNATURES ON NEXT PAGE
11
L, 0L, 21833
SEHli"IOLE C0.,FL
IN WITNESS WHEREOF, Grantor and Grantee have caused these presents to
be executed in manner and form sufficient to bind them as of the day and year first
above written.
Signed, sealed and delivered in "GRANTOR",
]he presence of: ~ .~~
WitneSs
~tness
STATE OF FLORIDA
COUNTY
Sig lure ~L~~ublic
Print, Type, or Stamp Commissioned
Name of Notary Public YULEYMA SECHREST
Notary Public, State of Flodda
Personally Known Y~. OR Produced Identification My cemm. exp. I%~. 15, 2003
Comm. No, 00895760
Type of identification Produced
12
OFRCt,~.L RECO~OS
B~r!x ~GE
183
~?~1.~0~] . "GRANTEE"
k o .... ~~gh~rt By:
'-,Z.~ .. Z~.~,;'.,,(4 ~ ~. Dale, Mayor
,;~ ~r/JBg~P~ATE SEAL)
~. '~Fgr~e use and reliance of City df
"~ord only. Approved as to form and
legal sufficiency.
City Attorney
SWORN TO AND SUBSCRIBED before me this ~-/-A day of/%{8-4'~J'1 , 2001,
by Lo. rry Ik, 1::)o.L% Mo~,/or
rDIANE CREWS
_ ~P'%e~4~4~ON,~CC65S~70 Signature of Notary Public
Crews
Print, Type, or Stamp Commissioned
Name of Notary Public
Personally Known / OR Produced Identification
Type of identification Produced
13
OFF,nlA~ ~uu~u~
nm~'~ ' :R~xGE
SEminOLE CB.,FL
"TRUSTEE"
SEMINOLE FARMS T~UST IV
Witn~ ~~, Tr~
Wilness
STATE OF FLORIDA
COUNTY OF,C~t;hqtlROle?- '
Print, Type, or Stamp Commissioned
Name of Notary Public YULEYMA SECHREST
'/k N0tmy Public, Slate of Florida
Personoily Known OR Produced Identification My comm. exp. Dec. 15, 2003
C0mrn. N0. CC89~76~'
Type of Identification Produced
14
OFFICIAL NLUUr, u,~,,
p.,~ ·
SEHINOLE CO..FL
"KASTN E R"
THE ESTATE OF VIOLA KASTNER
Witness ~ Maisonneuve Miller, Personal
..~,..j Representative
hess
STATE OF FLORIDA '
COUNTY OF E~a,~j~. of~-~
SWORN TO AND SUBSCRIBED before me this/~day 01,
S' atur~..Qf Not~~
Print, Type, or Stamp Commissioned
Name of Notary Public
Personally Known / OR Produced Identification
Type of Identification Produced
\FEINBERGS\ 151335vO6\38RR06LDOC\3/15/01
15
ESTATE OF
VIOLA H. KASTNER
S///~]~ MINOLE FARMS TRUST IV '
OLD G. HARTSOCK TRUSTEE
~' · ~ T RTY
38~1 A~
CITY O SA FORD R.O.W. TRACT III 6.98
PENDING SALE TO
WAL-MART
TRACT I
31.9 Ac.
EOG~N N. ~LLEY
~ EXHIBIT_ A
H E SEMINOLE FARMS TR~ST IV
C~ OF S~O~ ~D EOG~N ~LLEY
(CONSTRUeION OF ST. JO~S PA~AY A~
PE~ENT D~INAGE EASEME~
P/L
X-Section ~-~
Interceptor Swale Scale: 1" = ~;0' Hot,
OFFDAL RECORDS DZII~IHX~ ,
SEPI:NOLE CO..FL
North
1"=100'
TOP OF POND I PROPERTY LINE
o I
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ST. JOHNS PARKWAY
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