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WASTE SERVICES OF FLORIDA, INC./ CITY OF SANFORD
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UNIMPROVED RIGHT -OF -WAY AND ROAD USE AGREEMENT
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THIS UNIMPROVED RIGHT -OF -WAY AND ROAD USE AGREEMENT,
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hereinafter referred to as the "Agreement ", is hereby made and entered into by and
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between WASTE SERVICES OF FLORIDA, INC., whose address is 1451 West
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Cypress Creek Road, Fort Lauderdale, Florida 33309, hereinafter referred to as the
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"Company ", and the CITY OF SANFORD, whose address is 300 North Park Avenue,
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Sanford, 32771, hereinafter referred to as the "City ".
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RECITALS
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WHEREAS, the Company has advised the City that it is necessary for the
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and its customers to immediately use those portions of the City's public right -
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of -way known as Rand Yard Road as marked on Exhibit "A" to this Agreement (the
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"Unimproved Right -of- Way ") to access the Company's facility located on Ward Way in
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the City of Sanford; and
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WHEREAS, while road improvements are anticipated to be accomplished in the
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near future, the Unimproved Right -of -Way is not currently constructed to City standards
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and requirements; and
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WHEREAS, despite the current condition of the Unimproved Right -of -Way, the
Company desires to immediately utilize the Unimproved Right -of -Way and the City has
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agreed to permit the same; and
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WHEREAS, the City has made no representation to the Company with regard to
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the adequacy of the condition of the Unimproved Right -of -Way or the suitability of the
Unimproved Right -of -Way for travel in its current condition and the Company is relying
upon its independent analysis; and
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WHEREAS, the City has issued City of Sanford Development Order 03 -0058, as
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amended, which is an underlying document to this Agreement upon which this
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Agreement is premised and to which this Agreement is subject to.
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AGREEMENT
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NOW, THEREFORE, in consideration of the mutual promises contained herein,
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and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and the City agree as follows:
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Section 1. Recitals The above recitals are true and correct and are
incorporated by reference as if fully set forth herein.
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Section 2. Use of Unimproved Riciht- Of -Way The City hereby permits
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and approves the immediate use by the Company and vehicles requiring access to the
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Company's facility of the Unimproved Right -of -Way. The Company agrees that the
Unimproved Right -of -Way shall be used for purposes that are permitted and not
prohibited under generally applicable traffic regulations or engineering standards.
Section 3. Indemnification The Company and the City have on even date
herewith entered with the City an agreement styled "Waste Services of Florida,
Inc. /City of Sanford Right -of -Way Use and Indemnification Agreement' and this
Agreement and the agreement relating to indemnification are associated and the
terms and conditions of this Agreement are dependent upon the indemnification
agreement being in effect at all times.
Section 4. Engineering Requirements The Company may use the
Unimproved Right -of -Way as set forth in Section 2 for purposes that are prohibited
under generally applicable traffic regulations or engineering standards provided that the
Company continually ensures and maintains during all times that the Unimproved Right -
of -Way is used consistent with the maintenance of traffic plan and provisions as set
forth in Exhibit "B" hereto.
Section 5. Maintenance Of Unimproved Right- of -Way The Company agrees
that it shall perpetually maintain the Unimproved Right -of -Way during the course of its
use such that the Unimproved Right -of -Way is not degraded and is maintained in the
condition that is present at the time that the Company's use of the Unimproved Right -of-
Way commences. The Company shall immediately take all appropriate and timely
actions whenever the Unimproved Right -of -Way needs repair or maintenance and, at all
times, shall take such actions such as to ensure that the obligations set forth herein are
complied with on a continuing basis. In order to ensure that the obligations set forth
herein are guaranteed with an appropriate surety instrument, the Company shall provide
to the City a maintenance bond, in the amount of ONE HUNDRED THOUSAND AND
NO /100THS DOLLARS ($100,000.00) in substantially the form set forth in Exhibit "C" at
the commencement of the use of the Unimproved Right -of -Way which maintenance
bond shall be in full force and effect for three (3) years beyond the termination of the
use of the Unimproved Right -of -Way.
Section 6. Limitation of Funding Obligations Notwithstanding anything to the
contrary stated elsewhere in this Agreement, the City shall have no obligation to fund
any public utilities or infrastructure necessitated by the development of the property.
Section 7. Termination Termination This Agreement shall terminate effective upon
the date of transfer to the City of the completed improvements to the City rights -of -way
known as North White Cedar Road and Church Street pursuant to a "Joint Facilitation
Agreement' which is being proposed to be entered into between the City and White
Cedar - Church, LLC and others; provided, however, that the City has issued City of
Sanford Development Order 03 -0058, as amended, which is an underlying document to
this Agreement upon which this Agreement is premised and to which this Agreement is
subject to. The City may terminate the use of the Unimproved Right -of -Way if it
determines that the "Joint Facilitation Agreement' will not be timely entered. Should
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termination by the City be initiated as the result of the "Joint Facilitation Agreement' not
being timely entered, the City shall provide the Company with written notice thereof and
the Company shall have ninety (90) days within which to secure the fully executed "Joint
Facilitation Agreement'. In the event the fully executed "Joint Facilitation Agreement' is
obtained within this ninety (90) day period, this Agreement shall remain in full force and
effect in accordance with its terms provided that the said "Joint Facilitation Agreement'
continues to be implemented by the parties. In the event the Company does not secure
the fully executed "Joint Facilitation Agreement' within ninety (90) days or the "Joint
Facilitation Agreement' is not implemented in a timely manner in accordance with its
terms as agreed to by the City, the use of the Unimproved Right -of -Way shall terminate.
Notwithstanding anything contained herein to the contrary, the City shall have the
unilateral right to restrict or suspend the use of the Unimproved Right -of -Way if it
concludes, based upon sound and generally accepted engineering practices and
principles, that the continued use of the unimproved Right -of -Way is detrimental to the
traveling public. Should the City restrict or suspend the use of the Unimproved Right -of-
Way for the cause set forth in the preceding sentence, the City shall provide the
Company with twenty (20) days prior written notice in accordance with Section 7 of this
Agreement; provided, however, that should the City determine that the public safety
necessitate immediate restriction or suspension, the City shall provide the Company
with such reasonable notice as deemed appropriate by the City based upon the public
safety concerns; provided, further, however, that in either event of restriction or
suspension, the City agrees to provide the Company with such information as may be
available to evaluate the circumstances causing the matter that is detrimental to the
traveling public and a reasonable opportunity to cure the matter and, should the matter
be timely and reasonably cured to the satisfaction of the City based upon sound and
generally accepted engineering practices and principles, the Company may continue to
cause traffic to occur on the Unimproved Right -of -Way. Upon the final termination of this
Agreement, the parties shall have no further obligations or liability hereunder except for
those based upon occurrence or obligations arising prior to the termination of this
Agreement.
Section 8. No Joint Venture or Partnership Notwithstanding anything in this
Agreement which may be interpreted or construed to the contrary, neither this
Agreement nor the completion of the transactions contemplated hereby shall create
between the parties hereto any relationship or business enterprise, whether joint
venture, partnership, or any other business relationship.
Section 9. Disclaimer of Third Party Beneficiaries. This Agreement is solely for
the benefit of the formal parties to this Agreement, and no right or cause of action shall
accrue by reason hereof to or for the benefit of any third party not a formal party hereto.
Nothing in this Agreement, expressed or implied, is intended or shall be construed to
confer upon or give any person or entity any right, remedy or claim under or by reason
of this Agreement or any provisions or conditions hereof, other than the parties hereto
and their respective representatives, successors and assigns.
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Section 10. Attorney's Fees and Costs In the event of any action to enforce
the terms of this Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees, paralegals' fees, and costs incurred, whether the same be incurred in a
pre - litigation negotiation, litigation at the trial level, or upon appeal.
Section 11. Choice of Law and Venue Florida law shall govern the
interpretation and enforcement of this Agreement. In any action or proceeding required
to enforce or interpret the terms of this Agreement, venue shall be in Seminole County,
Florida.
Section 12. Notices Any notices, demands, claims and other communications
required or permitted to be given pursuant to this Agreement must be in writing and will
be deemed duly given and received (i) if personally delivered, when so delivered; (ii) if
mailed, three (3) days (excluding Saturdays, Sundays and days when banks are
required or permitted to be closed in the State of Florida) after having been sent by
registered or certified mail, return receipt requested, postage prepaid and addressed to
the intended recipient as set forth below; or (iii) if sent by electronic facsimile, once
transmitted to the fax number specified below and the appropriate telephonic
confirmation is received, provided that a copy of such notice, demand, claim or other
communication is promptly thereafter sent in accordance with the provisions of clause
(ii):
To the City:
City Manager
City of Sanford
300 North Park Avenue
Sanford, 32771
Facsimile No: 407 - 330 -5616
With a Copy to:
Stenstrom, McIntosh, Colbert,
Whigham, Reischmann & Partlow, P.A.
200 West First Street
Suite 22
Post Office Box 4848
Sanford, Florida 32772
Attn: City Attorney's Office
Facsimile No. 407 - 330 -2379
To the Company:
Waste Services of Florida, Inc.
1122 International Blvd., Suite 601
Burlington, Ontario CANADA L7L 6Z8
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Attn: General Counsel
Facsimile No. 905 - 319 -9408
The City or the Company may change its address for receipt of notices hereunder by
giving the other party notice of such change in the manner set forth in this Section.
Section 13. Construction of the Agreement This Agreement is the result of
negotiations between the City and the Company, and both parties have contributed
substantially and materially to the preparation of the Agreement. Accordingly, this
Agreement shall not be construed more strictly against one party than against the other.
Section 14. Captions The headings or captions of the paragraphs and
subparagraphs contained in this Agreement are used for convenience and reference
only, and do not, in themselves, have any legal significance.
Section 15. Counterparts This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which, taken
together, shall constitute one and the same document.
Section 16. Severabilitv If any provision of this Agreement, the deletion of
which would not adversely affect the receipt of any material benefits by either party to
the Agreement or substantially increase the burden of either party to the 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 whatsoever the validity or
enforceability of the remainder of this Agreement; provided, however, that the public
safety shall be deemed a primary factor in the continuation of this Agreement.
Section 17. Modification This Agreement may not be amended, changed, or
modified, and material provisions hereunder may not be waived, except by a written
document approved by the City's City Commission and signed by both parties to this
Agreement.
Section 18. Entire Agreement This Agreement and the Exhibits constitute the
complete and entire agreement between the City and the Company with respect to the
subject matter hereof, and supersedes any and all prior agreements, arrangements or
understandings, whether oral or written, between the parties relating hereto. The
Exhibits hereto constitute a material part of this Agreement and are incorporated herein
as if fully set forth herein verbatim.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their undersigned representatives on and as of the respective dates
hereinafter indicated below their signatures.
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ATTEST. O 15
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For the use and reliance of the City of
Sanford only. Approved as to form
and legal sufficiency.
/s/ William L. Colbert
William L. Colbert, Esquire, City Attorney
Date:
CITY OF SANFORD
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Linda uhn, Mayor
Date: S - D — c
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