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~IFIL !'~E:L.L.'(r C:L.F:F:i'~. O(=~1~C1iSF'Y
RE:C:Ci6:L?Ihl~~ ~'E:~:U: ~_Fy°,~ii
THIS DOCUMENT WAS PREPARED BY
AND AFTER RECORDING RETURN TO:
Michael P. Carolan, Esq.
Winderw~eedle, Haines, & Woodman, P.A.
/ Post Office Box 880
Winter Park, FL 32790
RIGHT-OF-WAY UTILIZATION AGREEMENT
THIS RIGHT-OF-WAY UTILIZATION AGREEMENT, entered into by and
between KMH LIMITED LIABILITY COMPANY, a Florida limited liability company,
("KMH"), and the CITY OF CLERM011TT, FLORIDA, a Florida municipal .corporation
("City").
RECITALS:
A. WHEREAS, KMH is constructing upon the property described on Exhibit "A"
attached hereto (the "Property") a commercial development within the city limits of the City of
Clermont to be known as Clermont Crossings; and,
B. WHEREAS, on the plat of Clermont Crossings at Lost Lake, KMH will dedicate
to the City aright-of--way to be known as Cross Ridge Road (the "Right-of-Way"); and,
C. WHEREAS, KMH, in the course of developing the Property, has installed or will
be installing certain drainage and utility lines underneath the Right-of--Way; and,
D. WHEREAS, KMH desires to obtain consent from the City whereby KMH will be
allowed to install and maintain such drainage and utility lines underneath the Right-of--Way for
the benefit of the Property, including without limitation drainage, electrical, telephone, gas,
cable, water, irrigation, and sanitary sewer lines and appurtenant facilities in accordance with the
approved construction plans dated October 6, 2008 or as otherwise approved by City in writing
(collectively referred to as the "Improvements"); and,
E. WHEREAS, City requires that KMH undertake certain commitments and
covenants with respect to the Improvements to assure their perpetual and continuous
maintenance.
NOW, THEREFORE, in consideration of the foregoing and of the terms and conditions
set forth herein, the parties agree as follows:
1. RECITALS. The foregoing recitals are true and form a material part of this
Agreement.
2. RIGHT-OF-WAY UTILIZATION. City does hereby consent to KMH's
utilization of the Right-of--Way for the installation and maintenance of the Improvements, subject
to the terms of the Agreement. KMH shall repair and replace any damage to any portion of the
improved road or roadbed resulting from the installation or maintenance of the Improvements.
Nothing contained herein or by virtue of the City's consent to the utilization of the Right-of--Way
shall give or grant KMH any ownership rights to any portion of said right-of--way.
3. IMPROVEMENTS. The Improvements shall be established and maintained in
such a manner as will not interfere with the use of the road by the public nor create a safety
hazard on such roads or within said Right-of--Way. If the City determines that the Improvements
do present a safety hazard, then KMH, at its sole expense, shall relocate the system in such a
manner as to eliminate such hazard.
4. RELOCATION. If the Improvements interfere with any construction,
reconstruction, alteration or improvement which the City desires to perform on, around or under
the Right-of--Way, KMH, upon receipt of a written notice from the City, shall relocate the
Improvements as requested by the City as soon as reasonably possible. Any such relocation of
the Improvements shall be at the sole expense of KMH.
5. INDEMNIFICATION. To the fullest extent permitted by law, KMH shall
indemnify and hold harmless the City from and against all claims, damages, losses and expenses,
including reasonable attorney's fees and costs, arising out of or resulting from the performance
of their obligations under this Agreement. KMH shall indemnify and hold harmless the City
(and any governmental body or utility authority properly using such right-of--way) from and
against all expenses, costs or claims for any damages to the Improvements which may result
from the use of such Right-of--Way by the City or other governmental body or authority due to
maintenance, construction, installation, or other proper use within such right-of--way; provided,
however, that the City and such other. governmental bodies and authority shall use reasonable
care to avoid causing any such damage to the Improvements to the extent reasonably possible.
6. INSURANCE. KMH shall obtain or possess commercial general liability
insurance with limits of not less than $100,000 Combined Single Limit (CSL) or its equivalent.
KMH shall provide a Certificate of Insurance to the City prior to commencing operations under
this Agreement to verify insurance coverage. KMH shall maintain such insurance coverage
throughout the duration of this Agreement, including the initial period and all extensions thereto.
The insurance coverage shall name the City as an additional insured, and shall contain a
provision which forbids any cancellation, changes or material alterations in the coverage without
providing thirty (30) days' prior written notice to City.
7. RECORDING. It is intended that this Agreement shall be recorded in the Public
Records of Lake County, Florida at KMH's sole expense.
8. COVENANTS RUNNING WITH THE LAND. It is intended that the provisions
of the Agreement shall constitute covenants running with the land or an equitable servitude upon
the land, as the case may be, applicable to all of the property described herein or any portion
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thereof. It is further intended that this Agreement shall be binding on all parties having any
right, title or interest in the property described herein or any portion thereof, their heirs, personal
representatives, successors and assigns. KMH declare that the property described in this
Agreement any portion thereof shall be held, sold and conveyed subject to the provisions of this
Agreement. This Agreement shall inure to the benefit of and be enforceable by City, its
respective legal representatives, successors and assigns.
9. AMENDMENT. The provisions, restrictions and covenants of this Agreement
shall not be modified or amended except in a written instrument approved by a majority of the
Board of City Commissioners and either by KMH or by all of the then owners of the lots on the
Property. No such modification or amendment shall be effective until said written instrument
has been signed and acknowledged either by KMH or by all of the owners of said lots, executed
and acknowledged by the Board of City Commissioners, and recorded in tie Public Records of
Lake County, Florida.
10. COMPLIANCE WITH APPLICABLE LAWS. KMH shall comply with all
applicable state laws and all city ordinances.
i 1. DISCLAIMER OF CITY RESPONSIBILITY. Nothing contained herein shall
create any obligation on the part of the City to maintain said improvements.
12. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which, when taken together, shall be deemed one fully executed original.
13. EFFECTIVE DATE. This Agreement shall take effect upon being recorded in the
Public Records of Lake County, Florida.
14. TIME IS OF THE ESSENCE. Time is of the essence of each and every provision
of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be made and
executed as of the day and date first above written.
1~/~
c~~z C~n~1~ C.~'~~1~~-
Witness Name Printed
Witness Name Printed
STATE OF FLORIDA
COUNTY OF LAKE
K1VIH LIMITED LIABILITY
COMPANY, a Florida limited liability
company and successor by merger to
HIVIH GENERAL PARTNERSHIP, a
Florida general partnership
' athleen M. Hillary, Manage
The foregoing instrument was acknowledged .before me this day of October,
2008, by Kathleen M. Hillary, as Manager of KMH LIMITED LIABILITY COMPANY, a
Florida limited liability company and successor by merger to KMH GENERAL
PARTNERSHIP, a Florida eneral partnership, on behalf of the company. She [°~is
personally known to me oroias ~roduced as identification.
+~~~ P.~1N•.....••. /
,~ p •.~M~ssioN~A•• ~ Notary Publ'
;`Ga 9~st 30, 24/ 9F
~ ~ a N ; * ~ Print Name: i k1 yl S~rx~n g,~. ~ ~ y
=* : ~•" ~ ~ My Commission Expires:
~L ADD 786242 J o ~~
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CITY OF CLERMONT, FLORIDA, a
Florida municipal corporation
By•
~ r otc`J~ i ,~.I r ~. Na e: t ~. ~,~.LV ~ l .>
Witne s Name Prin ed Title:
,~
Witness ame rinte
STATE OF FLORIDA
COUNTY OF LAKE
The foregoing instrument was acknowledged before me this ~_ day of ~~ie^~
2008, by r~ l~ ~~ /„~ ~ ~ /(c , as of the CITY OF
CLERMONT, on behalf of the City. S/He ] is rsonally known tom or [ ]has produced
as identification.
ota Public
Prir,-~Name~
My Commission Expires:
~~. P%~:..,~'
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~~, "' ~`'` aAN~ wn~a~
bTi Cu61M?a~ION # DD 609133
BcndeiliflruNataryPi6lc~Underw~Mn
R:\lvlathieson\Vacation and Dedication of ROW~Right of Way Use Agent 10-07-08.doc
EXHIBIT "A"
DESCRIPTION OF THE PROPERTY
All of CLERMONT CROSSINGS AT LOST LAKE, according to the plat thereof as recorded in
Plat Book G3 , PageG~~ Public Records of Lake County, Florida.
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