Prepared by and return to:



Prepared by and return to:

Catherine D. Reischmann, Esq.

Brown, Garganese, Weiss & D’Agresta, P.A.

P.O. Box 2873

Orlando, FL 32802-2873

RIGHT OF WAY UTILIZATION AGREEMENT

This Agreement made this _____ day of ___________, 2010, by and between the CITY OF PALM COAST, a Florida municipal corporation, (hereinafter referred to as “City”), whose address is 160 Cypress Point Parkway, Suite B-106, Palm Coast, Florida 32164, and M & D Enterprises, a Florida general partnership, whose address is 4186 Sanora Lane, Ormond Beach, FL., 32174.

WHEREAS, Owner presently owns that certain property generally described as having a street address of 200 Palm Coast Parkway, Palm Coast, Florida, 32137, in Flagler County, Florida (the “Property”), which Property is subject to the jurisdiction of the City of Palm Coast; and

WHEREAS, the City presently has road right of way frontage, known as Palm Coast Parkway, adjacent to the subject property that was granted from the original developer, ITT, to the City of Palm Coast; and

WHEREAS, Owner originally developed the subject property prior to the incorporation of the City of Palm Coast, including the existing project identification sign; and

WHEREAS, Owner desires the existing sign that currently encroaches into the City of Palm Coast right of way remain until such time as the provisions of this Agreement are triggered; and

WHEREAS, Owner executed a contract for purchase of the subject property that will benefit from the encroachment of the existing sign; and

WHEREAS, City and Owner have made provisions for a new sign location entirely on the subject parcel; and

WHEREAS, the parties hereto wish to enter into this Right of Way Utilization Agreement to allow the existing sign to encroach into the City’s right of way until such time as the provisions of this Agreement are triggered.

NOW, THEREFORE, in consideration of the terms and conditions set forth herein, the parties agree as follows:

1. The “whereas” clauses set forth above are true and accurate and are hereby incorporated herein.

2. The City hereby authorizes and allows Owner’s existing, non-conforming sign to encroach into the City’s right-of-way.

3. Owner agrees to remove the existing sign within ten days upon written demand from the City that the right of way be cleared for any road expansion of Palm Coast Parkway. Owner must remove said existing sign at Owner’s expense; or at the option of the City, City will remove and Owner must immediately thereafter reimburse City for said cost and expense. If Owner fails to reimburse City for the cost of removal and additional costs incurred by City, City will have the right to impose these costs as a lien against the Property.

4. In the event that the sign is destroyed, removed or demolished this right of way utilization agreement is terminated. Owner for themselves and their successors in interest in the Property, agree that any replacement structure built on the Property shall be located as depicted on the approved site plan (Exhibit A) for the expansion of the convenience store. A sign permit will be required and the Unified Land Development Code standards in effect at the time will be the standard for review of the permit application.

5. To the fullest extent permitted by law, Owner hereby indemnifies and agrees to hold harmless the City, its officers, agents and employees, from and against all claims, damages, losses and expenses, including reasonable attorney’s fees, arising out of or resulting from thereof the existing sign within the City’s right of way, or in any way related to the City removal of said sign for road widening purposes shown in Exhibit A for any purpose.

6. The City will not be restricted in any manner from accessing, maintaining, repairing or reconstructing its facilities located within the right of way or any easements.

7. This Agreement shall inure to the benefit of and be binding upon the respective heirs, personal representatives, successors and assigns of the parties hereto.

IN WITNESS WHEREOF, the parties have hereunto set their hands and seals hereto on the day and year first above written.

[signatures to follow]

|WITNESSES: |CITY OF PALM COAST |

| | |

|________________________________ |By:________________________________ |

| |Jim Landon, City Manager |

|________________________________ | |

|(print) |ATTEST: |

| | |

|________________________________ |______________________________ |

| |City Clerk |

|________________________________ | |

|(print) | |

| | |

| | |

| | |

STATE OF FLORIDA

COUNTY OF FLAGLER

The foregoing instrument was acknowledged before me this _______ day of _____________, 2010, by Jim Landon, City Manager (check one) □ who is personally known to me or □ who produced _______________________________ as identification.

________________________________

Notary Public – State of Florida

Print Name:______________________

My Commission expires:

|WITNESSES: |M & D Enterprises, a Florida General Partnership |

| | |

|________________________________ |By:________________________________ |

| | |

|________________________________ |Print:______________________________ |

|(print) | |

| |Title:______________________________ |

|________________________________ | |

| | |

|________________________________ | |

|(print) | |

| | |

| | |

| | |

STATE OF FLORIDA

COUNTY OF FLAGLER

The foregoing instrument was acknowledged before me this _______ day of _____________, 2010, by __________________________, the _______________ of M & D ENTERPRISES, a Florida general partnership, (check one) □ who is personally known to me or □ who produced _______________________________ as identification.

________________________________

Notary Public – State of Florida

Print Name:______________________

My Commission expires:

EXHIBIT A

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