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HomeMy WebLinkAboutR2014-18 Agreement for Acquisition of Utility EasementRESOLUTION 2014-18 • • A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA, APPROVING AN AGREEMENT WITH TROY AND ALISON MISCHKE FOR THE ACQUISITION OF A UTILITY EASEMENT OVER PROPERTY LOCATED AT 536 OVERLOOK DRIVE; AUTHORIZING THE MAYOR AND VILLAGE CLERK TO EXECUTE THE AGREEMENT AND UTILITY EASEMENT ON BEHALF OF THE VILLAGE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Troy and Alison Mischke ("Mischke") are the owners of property located at 536 Overlook Drive ("Property") within the Village; and WHEREAS, during the course of the construction of a new residence on the Property, the Village discovered the existence of a sanitary sewer line across the property that serves restrooms located on the North Palm Beach Country Club Golf Course; and WHEREAS, the Village and Mischke wish to enter into an Agreement whereby Mischke will grant the Village a Utility Easement over the Property for excavation, reconstruction and maintenance of the sewer line in exchange for the clearing of vegetation within the easement area and the reimbursement of certain costs related to the construction of a sidewalk and driveway apron within the adjacent right-of-way and for legal review of the Agreement and Easement; and WHEREAS, the Village Council determines that the execution of the Agreement and Utility Easement is in the best interests of the residents and citizens of the Village of North Palm Beach. NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA as follows: Section 1. The foregoing recitals are ratified as true and incorporated herein. Section 2. The Village Council of the Village of North Palm Beach, Florida, hereby approves an Agreement with Troy and Alison Mischke, a copy of which is attached hereto and incorporated herein by reference. The Village Council further authorizes the Mayor and Village Clerk to execute both the Agreement and the Utility Easement (attached as an exhibit to the Agreement) on behalf of the Village. Section 3. .This Resolution shall take effect immediately upon adoption. PASS wtoPTED THIS 27th DAY OF MARCH, 2014. f', (ViITa�Seal)�, ,� ATTEST: Mal// VILLAGE CLERK MAYOR • • AGREEMENT THIS AGREEMENT is made and entered into this o7 7 day of /i/A-MH, 2014 by and between the Village of North Palm Beach, a municipal corporation organized and existing under the laws of the State of Florida, 501 U.S. Highway One, North Palm Beach, FL 33408 ("Village") and Troy and Alison Mischke, 536 Overlook Drive, North Palm Beach, FL 33408 (collectively "Mischke"). WITNESSETH: WHEREAS, Mischke is the owner of a parcel of real property located at 536 Overlook Drive, within the corporate limits of the Village and legally described as Lot 25 of the Golf Course Addition to the Village of North Palm Beach, as recorded in Plat Book 27, Pages 96 and 97 of the Public Records of Palm Beach County, Florida ("Property"); and WHEREAS, during the course of the construction of a new residence on the Property, the parties discovered the existence of. a sanitary sewer line installed by the Village to service restrooms for the North Palm Beach Country Club Golf Course; and WHEREAS, Mischke is willing to grant the Village a Utility Easement over the Property for the excavation, maintenance and reconstruction of the sanitary sewer line pursuant to the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the mutual benefits and promises set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Recitals The foregoing recitals are ratified and incorporated herein. 2. Grant of Utility Easement Mischke agrees to grant to the Village a perpetual, ten -foot wide Utility Easement over the Property ("Easement Area") that encompasses the existing sanitary sewer line as set forth in Exhibit "A" attached hereto and incorporated herein by reference. The Utility Easement shall be subject to the terms and conditions set forth therein. 3. Payments by the Village A. The Village agrees to reimburse Mischke for the costs of construction of the sidewalk and driveway apron within the adjacent Overlook Drive right-of-way in an amount not to exceed $5,000.00. Page 1 of 4 B. The Village agrees to clear the existing vegetation within the Easement Area. Within three (3) days of the Effective Date of this Agreement and prior to any clearing activities by the Village, Mischke shall clearly mark and identify any existing vegetation that shall remain in the Easement Area. Mischke expressly acknowledges that all vegetation not clearly marked and identified shall be removed by the Village. C. The Village agrees to reimburse Mischke for the cost of obtaining legal review of this Agreement, including the Utility Easement, in an amount not to exceed $1,000.00. D. Mischke shall submit to the Village paid invoices for the amount expended for sidewalk and driveway construction and legal review as set forth in this Section. The Village shall process and deliver payment to Mischke by mail for each activity up to the maximum amounts indicated above within twenty (20) days of receipt of each invoice. E. Notwithstanding the actual costs of such construction activities and legal review, the maximum amount paid by the Village to Mischke pursuant to this Agreement shall not exceed a total of $6,000.00. 4. Term This Agreement shall commence upon approval and execution by both parties ("Effective Date") and shall remain in full force and effect for a period of one (1) year or until such time as each party has satisfied its obligations under this Agreement, whichever shall first occur. The Village shall not, under any circumstances, be required to reimburse Mischke for any invoice not submitted within one (1) year of the Effective Date. 5. General Provisions. A. Enforcement costs. If any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, or misrepresentation in connection with any provisions of this Agreement, the successful or prevailing party shall be entitled to recover reasonable attorney's fees, court costs and all expenses (even if not taxable as court awarded costs), including appellate fees, costs and expenses, incurred in that action or proceeding, in addition to any other relief to which such party may be entitled. B. Goveming law and venue. This Agreement shall be governed by the laws of the State of Florida. Any and all legal action necessary to enforce the Agreement will be held in Palm Beach County, Florida. C. Severability. In the event any part, term or provision of this Agreement is found to be illegal or inoperative by a court of competent jurisdiction, the validity of the remaining portions and provisions shall not be affected, and the rights and obligations of Page 2 of 4 • • • the parties shall be construed and enforced as if the Agreement did not contain the particular part, term or provision declared to be so invalid. D. Entire agreement. The parties agree that this Agreement sets forth the entire agreement between the parties, and that there are no promises or understandings other than those stated herein. None of the provisions, terms and conditions containedin this Agreement may be added to, modified, superseded or otherwise altered, except by written instrument executed by the parties hereto. E. Captions. The captions and paragraph headings are for reference and convenience only and do not enter into or become a part of the context of this Agreement, nor shall such headings affect the meaning or interpretation of this Agreement. F. Waiver of rights. Failure of a party to enforce or exercise any of its right(s) under this Agreement shall not be deemed a waiver of that parties' right to enforce or exercise said right(s) at any time thereafter. G. Construction. This Agreement shall not be construed more strongly against either party regardless of who was more responsible for its preparation. H. Exhibits. Each exhibit referred to in this Agreement forms an essential part of this Agreement. I. Binding effect and disclosure. This Agreement shall be binding on the parties, and their assigns or successors in interest. IN WITNESS WHEREOF, the parties have executed this Lease Agreement as of the date first above written. Attest: Melissa Teal, Village Clerk Approved as to form and legal sufficiency: Leonard G. Rubin, Village Attorney. VILLAGE: VILLAGE OF NORTH PALM BEACH By: Page 3 of 4 Darryl C. Aub y, Mayor Witnessed by: Print Name: \ ct\sv\=-� Print Name: / t /ASS,.- Print Name:-7k �1 rint Name: c/, 5'S: MISCHKE: • Alison Mischke Page 4 of 4 11111111111111111111111111111111111111111111111111111 Prepared by: Leonard G. Rubin, Esquire Leonard G. Rubin, P.A. 701 Northpoint Parkway, Suite 209 West Palm Beach, FL 33407 Return to Office of the Village Clerk Village of North Palm Beach 501 U.S. Highway 1 North Palm Beach, FL 33408 UTILITY EASEMENT CFN 201401:369'31 L)R BK 267:31 PG 1492 RECORDED 04/16/2014 11:27:58 Palm Beach County, Florida AMT 10.00 Doc Stamp 0.70 Sharon R. Bock, CLERK & COMPTROLLER Pgs 1492 - 1497; (6pgs) THIS EASEMENT is made by Troy and Alison Mischke, 536 Overlook Drive, North Palm Beach, FL 33408 (collectively "Grantor"), in favor of the Village of North Palm Beach, a Florida municipal corporation, 501 U.S. Highway One, North Palm Beach, FL 33408 ("Grantee"). WITNESSETH: WHEREAS, Grantor is the owner of a parcel of real property within the Village of North Palm Beach located at 536 Overlook Road, legally described as Lot 25 of the Golf Course Addition to the Village of North Palm Beach (PCN: 68-43-42-08-03-000-0250) ("Property"); and WHEREAS, Grantee desires an easement over that portion of the Property specifically described below relating to an existing sanitary sewer line ("Facilities") and Grantor is willing to grant such easement subject to the terms and conditions set forth herein. NOW, THEREFORE, for and in consideration of the payment of $10.00 and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by both parties, Grantor and Grantee agree as follows: 1. Grantor grants and gives to Grantee, its agents, employees and contractors, a non-exclusive perpetual easement for the operation, maintenance and reconstruction of sanitary sewer facilities and improvements over the following described portion of the Property: See Sketch and Legal Description attached as Exhibit "A" ("Easement Area") 2. In addition to fences and landscaping, Grantor shall be permitted to construct and maintain encroachments within the Easement Area as depicted in Exhibit "B" attached hereto and incorporated herein. Absent emergency circumstances, Grantee shall not perform any excavation, maintenance or reconstruction activities within the Easement Area without first obtaining the consent of Grantor, such consent not to be unreasonably withheld. After any excavation, maintenance or reconstruction activity, Grantee shall restore the Property to equal or better condition subject to Grantor's approval, which shall not be unreasonably withheld. Such restoration activities shall include, but not be limited to, the replacement and restoration of all fences and landscaping, in addition to the replacement and restoration of that portion of the air conditioning pad, patio and pool deck located within the Easement Area as depicted in Exhibit "B." Restoration shall be completed within thirty (30) days after the excavation, maintenance or reconstruction activity. Page 1 of 3 3. In the event the Facilities fail to function properly and such failure interferes with Grantor's use and enjoyment of the Property, Grantor shall immediately notify Grantee. In the event Grantee fails to correct the issue within twenty-four (24) hours of Grantor's notification, Grantor shall be permitted to perform any necessary repair to the Facilities, and Grantee shall reimburse Grantor for all reasonable, documented costs incurred in repairing the Facilities within twenty (20) days of Grantor submitting such documentation to Grantee. 4. Except to the extent caused by the negligent or intentional acts or omissions of Grantor or any person retained by or acting on behalf of Grantor, Grantee hereby releases Grantor and Grantor's family members, agents, successors and assigns from any and all damage to the Facilities and from personal injuries sustained by agents, employees, or contractors of Grantee working or entering the Easement Area for any purpose. Grantor shall not be liable to Grantee for any root damage to the Facilities caused by landscaping installed in the Easement Area. 5. To the extent permitted by law, Grantee agrees to indemnify and hold harmless Grantor, its family members, invitees, agents, successors and assigns from and against any and all claims, damages, losses, liabilities and expenses, including, without limitation, attorney's fees and costs, arising out of excavation, maintenance reconstruction and all other activities performed by Grantee, its officers, agents and contractors, within the Easement Area. Nothing set forth herein shall constitute a waiver of Grantee's sovereign immunity protections or the limitations of liability set forth in Section 768.28, Florida Statutes. In the event that Grantee retains a third party contractor to perform any activities on the Easement Area, Grantee shall ensure that such contractor carries both statutorily required worker's compensation insurance and appropriate liability insurance and that Grantor is added to the contractor's liability policy as a named insured prior to the contractor commencing such activities. N WITNESS WHEREOF, Grantor has granted this Easement this day of ��,� ✓f/ , 2014. Witnessed by: Print Name:17k/ VW\ , Print Name:/ 4i54 t Print Name: 1 N` fl'� Print Name: `/(& //. ,¢ /g,/ GRANTOR: By: By: Alispn ischke Page 2 of 3 State of Florida County of Palm Beach )ss: The foregoing instrument was acknowledged before me this 2 S' day of I Girth 1,4 b Troy Mischke and Alison Mischke, who are personally known to me or produced .t) L as identification. DL My commission expires: JESSICA J. GREEN NOTARY PUBLIC STATE OF FLORIDA Comm* FF029093 Expires 3/7/2018 Attest: Melissa Teal, Village Clerk Na Public_ P iName: j a J of € Q fJ GRANTEE: VILLAGE OF NORTH PALM BEACH, FLORIDA By: arryl C.: 'Gbrey, Mayor Date: ,3/a l Page 3 of 3 EXHIBIT "A" LEGAL DESCRIPTION: A 10' foot utility easement for water and sewer purposes, said easement being a portion of Lot 25, GOLF COURSE ADDITION TO THE VILLAGE OF NORTH PALM BEACH, according to the Plat thereof as recorded in Plat Book 27, Page(s) 96, of the Public Records of Palm Beach County, Florida, being more particularly described as follows: For the purpose of this description the bearings as shown hereon are based on the Southeasterly line of said Lot 25 which is assumed to bear North 55'03'05" East and all other bearings are relative thereto. Beginning at the Northeast corner of said Lot 25; thence North 34'56'55" West, along the northeasterly line of said Lot 25, a distance of 5.27 feet to the beginning of a curve to the left, having a radius of 400.00 feet and a central angle of 0'40'39"; thence northwesterly along the arc of said curve and along the northeasterly line of said Lot 25, a arc distance of 4.73 feet to a point on a line 10 feet northwesterly of as measured at right angles to and parallel with the southeasterly line of said Lot 25; thence South 55'03'05" West, along said parallel line, a distance of 150.02 feet to the beginning of a non tangent curve, concaved to the southwest, having a radius of 250.00 feet and a central angle of 1'05'03", a radial line passing through said point bears North 53'58'02" East; thence southeasterly along the arc of said curve and along the southwesterly line of said Lot 25, a arc distance of 4.73 feet to a tangent line; thence South 34'56'55" East, along the southwesterly line of said Lot 25, a distance of 5.27 feet to the Southeast corner of said Lot 25; thence North 55'03'05" East, along the southeasterly line of said Lot 25, a distance of 150.00 feet to the Point of Beginning. Containing 1,500.03 Square Feet, more or less. SURVEYOR'S CERTIFICATE: I hereby certify to the best of my knowledge and belief that this legal description and sketch is a true and correct representation of the described property. I further certify that this leagl description meets all applicable requirements of the Florida Minimum Technical Standards as contained in Chapter 5J-17 Florida Administrative Code. Survey Date: 02/05/2014 James R. Zeis, P.S.M. Professional Surveyor & Mapper LS 5030 State of Florida REV. I REVISION DESCRIPTION BY I DATE Z 15 JAMES R. ZEIS, P.S.M. 19910 Hibiscus Drive Tequesta, Florida 33469 coilsu to is Phone: 561-632-7035 LB 7851 SCALE: N/A I DRAWN BY: I FIELD BOOK: I DATA FILE: I JOB NUMBER DATE: 02/05/2014 J.R.Z. N/A N/A 0214 LEGAL DESCRIPTION & SKETCH OF THE SHEET 1 OF 2 10' UTILITY EASEMENT FOR 536 OVERLOOK DRIVE THE LEGAL DESCRIPTION & SKETCH ARE NOT NORTH PALM BEACH, FLORIDA COMPLETE WITHOUT ALL SHEETS ATTACHED CLIENT: VILLAGE OF NORTH PALM BEACH 24 do (536 OVERLOOK DRIVE) 25 GOLF COURSE ADDITION TO THE VILLAGE OF NORTH PALM BEACH PLAT BOOK 27, PAGE(S) 96 GOLF COURSE LEGEND: 1 = CENTERLINE = DELTA OR CENTRAL ANGLE R = RADIUS DISTANCE L = LENGTH OF ARC GRAPHIC SCALE 30 0 15 30 06M01 1 INCH = 30 FEET SHEET 2 OF 2 THE LEGAL DESCRIPTION & SKETCH ARE NOT COMPLETE WITHOUT ALL SHEETS ATTACHED REV. / / / / / o 26 REVISION DESCRIPTION / 74 F9 0�yy9c� 9syy n BY DATE Z.r15JAMES R. ZEIS, 19910 Hibiscus Drive Tequesta, Florida 33469 c0n5u tai1t5 Phone: 561-632-7035 LB 7851 DACTE 02/05/2014 I � J.R.Z. AWN BY: I FIELD BOOK: INDATA A LE: I JOB 0214 NUMBER LEGAL DESCRIPTION & SKETCH OF THE 10' UTILITY EASEMENT FOR 536 OVERLOOK DRIVE NORTH PALM BEACH, FLORIDA VILLAGE OF NORTH PALM BEACH CUENT: vxj Q 04 kt / qSp ix-- yAt T R /?444,104,4>. / / poir Y / 26