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Blk 150 City/Taco BellPrepared by and return to: Lehn E. Abrams, Esq. Arnold, Matheny &Eagan, P.A. 605 E. Robinson Street, Suite 730 Orlando. FI. 32801 ALLEY USE LICENSE VI VIN111111111111111 E NUM 2016004419 OR BK 774 PG 1706 SHARON ROBERTSON, CLERK OF CIRCUIT COURT OKEECHOBEE COUNTY, FLORIDA RECORDED 05/12/2016 10:27:02 AM RECORDING FEES $7.00 RECORDED BY C; Newbourn Pas 1706 - 1708; (3 P9s) THIS LICENSE, BY AND BETWEEN THE CITY OF OKEECHOBEE, FLORIDA, A Florida Municipal corporation (hereinafter "CITY" )and LUIHN FOUR, INC., a North Carolina corporation (hereinafter "OWNER "), dated this cat-i day ofMaYi , 2016. WHEREAS, OWNER holds fee simple title to the following described real property in Okeechobee County, Florida, to wit: LOTS 4, 5, 6, 7, 8 and 9, BLOCK 150, OKEECHOBEE, ACCORDING TO THE PLAT THEREOF RECORDED IN PLAT BOOK 5, PAGE 5, PUBLIC RECORDS OF OKEECHOBEE COUNTY, FLORIDA; and WHEREAS, the City of Okeechobee, Florida, owns the following alleyway: THAT 15 FOOT WIDE ALLEYWAY RUNNING EAST TO WEST AND LOCATED BETWEEN LOTS 4, 5 AND 6 AND LOTS 7, 8, AND 9, BLOCK 150, OKEECHOBEE, ACCORDING TO THE PLAT THEREOF RECORDED IN PLAT BOOK 5, PAGE 5, PUBLIC RECORDS OF OKEECHOBEE COUNTY, FLORIDA; and WHEREAS, the OWNER desires to make certain improvements in the form of paving, landscaping and maintaining the alleyway adjoining between the lots 4,5,6, and Lots 7, 8, 9, of Block 150, which is an open, unimproved alleyway, which is owned by the CITY. NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, the parties agree as follows: 1. The CITY hereby grants this revocable license for use of the alleyway with the understanding the OWNER will maintain the alleyway and should it ever become necessary to remove any pavement, landscaping or any improvement thereon, in order to allow either the installation, or maintenance of water, sewer or other utility lines or any other type of installation or construction, or for any other reason chosen by the CITY, the pavement, landscaping or any improvement thereon, will be removed by the OWNER or their agents and /or assigns at the OWNER 's expense within seven days of receipt of written request by the CITY for such removal. Should the CITY, for valid reasons, require the removal of pavement, landscaping or other improvements thereon less than seven days' notice, the OWNER agrees to exercise reasonable efforts to comply with such requests. In the event the CITY should require the alley to be temporarily closed to traffic for installation, maintenance or repair of underground facilities or utilities, the CITY shall make every reasonable effort to schedule the work so as to permit regular business traffic to have ingress and egress to the business. However, OWNER, due to such interruption of business, waives any and all rights to demand or claim, or institute litigation, seeking business loss or damages, including attorney's fees that may arise out of the installation, maintenance or repair. 2. It is agreed and understood that the Okeechobee Utility Authority and any other public utility providers are third party beneficiaries of this Alley Use Agreement. 3. OWNER agrees to contact their insurance company and require a rider be added to their insurance policy with a certificate furnished to the CITY showing the portion of the alleyway as herein described, to be used by them, insures the CITY against any liability arising out of alleged injuries or other activities which may occur within the alleyway. In any event, OWNER agrees and shall hold the CITY harmless for any and all action, suit, claim, injury or cause of action of any nature arising out of owner's permissive use, and indemnify CITY for such, including costs and attorney fees. 4. That OWNER shall not, by such improvements made to that described alleyway, obstruct, close or otherwise restrict access to the alleyway for travel thereon by the CITY or the general public. 5. That the OWNER agrees that this license is non - assignable without the express written consent of the CITY; and if transferred. the covenants herein shall bind themselves, their heirs and assigns, and said covenants shall run with the land. 6. The City Clerk shall cause this license to be recorded in the Public Records of Okeechobee County, Florida. IN WITNESS WHEREOF, the parties hereto set their hands and seals on the aforesaid date. Signed, Sealed and delivered in the presence of: itness 7.1 bie.r �vr(e_ Witness' printed name Cam, Witness LUIHN FOUR, C. allorth C. olin. corpor.tion By: srl / L a J. Lui n, 'res. . riLA M • CO I r' Witness' printed name STATE OF KORIDA � ,� (,V4 COUNTY OFD roe 6 The foregoing instrument was acknowledged before me thiPiy day of _ 2016, by Allan J. Luihn, as President of Luihn Four, Inc., who signed in the presence ofthese witnesses and who produced as identification or is personally known. [SEAL] \\\ \\\ \\<cs S A EA' z/% . Notary PU 41 1 c Jpyst oso °unt County -Z ' My C °'nJ/ XKir0s\ 12/09/207 �Z 0 i ‘,„,„\- l� CA R O �-�\\': `\ Accepted for the City: L , Public Works Director Reviewed for Legal Sufficiency City Attorney Notary Public My Commission Expires: I //0 c1 I `' (.7 (city seal) , City Clerk (!) 0)r-1 7)t-1 DC) Z) -I0 70 CDO C,.)00C/) Om C 1-4 C 1-4 m --{ C) 1-1 m 4-i D m Cfl fir = mC) C) V -0 -i 0-XI -IFir C)m C)-4 CD 3-1 11WmNmmD 33 X3 • c 3. 3.. DO .+m -< S m 03 0 -G P1mm •• -J mZ P1 C) CD 0 —I 07 (/)F --I- -: —I 0 C) Z•• •• C Z « 2 00 D .-+ 0 O i Z O -0 t- • 01 01 2• S - r v -5 -11 -n N 01 -I -11 -I0µ 0) 00 000 • � r L7 mD- 00 Q000µ0 0 NN N3 71 P1 O m -I (/) -IC D X) 03 -- T N'- . • .-gy m0)00)0) T73 CS P o T r- m HO N 0) O PI �00 0)C):)T z m 0)Z Lam. 00 C) N r-+ l -I OC) --I C CO m (D = C I). • -0 S O {3) r :0 C C CO 7c 0 0 m 0 .--• 0) O CD D m Z H O (4) CO (0 03 Ls 3 0)m -I -4 Z CD C m C) m µ (0 0) 03•- N ---.1 O OS N -n 7Z ) N 0) T1 ( iD J r \ J H 0-4 m 0 -D - • -1 z) CD 0 I- 70 0 0 m 4-H 0 F-- N 0 x)63 EA EA J 3 01 C C,) 0 CJN J 01 U • 0 0 J A 0000 '-` —00CD J 0) 0•) kaanted 5161 Ito 5.58 pm A CORO® CO CERTIFICATE OF LIABILITY INSURANCE DATE (MM /DD/YYYY) 04/19/2016 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER MCGRIFF, SEIBELS & WILLIAMS, INC. P.O. Box 10265 Birmingham, AL 35202 CONTACT NAME: PHONE 800- 476 -2211 FAX (A/C, No, Ext): INC, No): E -MAIL ADDRESS: INSURER(S) AFFORDING COVERAGE NAIC # INSURER A :Pennsylvania Manufacturers Indemnity Company 41424 INSURED Luihn Four, Inc.; LuBell, Inc.; Category 4, LLC 2950 Gateway Centre Blvd. Morrisville, NC 27560 INSURER B : 3015010471631 INSURER C : 08/01/2016 INSURER D : $ 1,000,000 INSURER E : INSURER F : X COVERAGES CERTIFICATE NUMBER:FB74SLHC REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL INSD SUBR WVD POLICY NUMBER POLICY EFF (MM /DD/YYYY POLICY EXP (MM /DD/YYYY) LIMITS A X COMMERCIAL GENERAL LIABILITY X 3015010471631 08/01/2015 08/01/2016 EACH OCCURRENCE $ 1,000,000 CLAIMS -MADE X OCCUR DAMAGE TO RENTED PREMISES (Ea occurrence) $ 300,000 MED EXP (Any one person) $ EXCLUDED PERSONAL & ADV INJURY $ 1,000,000 GEN'L AGGREGATE LIMIT APPLIES POLICY PRO JECT OTHER: X PER: LOC GENERAL AGGREGATE $ 2,000,000 PRODUCTS - COMP /OP AGG $ 2,000,000 $ AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS HIRED AUTOS SCHEDULED AUTOS NON -OWNED AUTOS COMBINED SINGLE LIMIT (Ea accident) $ BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ PROPERTY DAMAGE (Per accident $ UMBRELLA LIAB EXCESS LIAB OCCUR CLAIMS -MADE EACH OCCURRENCE $ AGGREGATE $ DED RETENTION $ $ WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR /PARTNER /EXECUTIVE OFFICER /MEMBER EXCLUDED? (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below Y / N N / A PER STATUTE OTH- ER E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYEE $ E.L. DISEASE - POLICY LIMIT $ $ $ DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Certificate Holder is Additional Insured under General Liability as required by written contract. CERTIFICATE HOLDER CANCELLATION City of Okeechobee 55 Southeast 3rd Avenue Okechobee, FL 34974 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE %/ /t--) ACORD 25 (2014/01) Page 1 of 1 © 1988 -2014 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD Marcos: I have highlighted some general statements concerning the right of the city to obstruct, close or regulate the use of city rights of way, which would include an alley. The key issue on the Taco Bell property would be does obstructing that alley materially affect adjoining landowners from access to their property. I believe that the city has that right, and while accessing their building from the East end of the alley may be more inconvenient, it is a suitable and reasonable route of access; clearly they cannot pick and choose which route they wish to use. The alternate right of passage across the North end of the Taco Bell parcel would seem to be of some assistance to the adjoining landowner if that could be worked out; in one sense we will be seeing large trucks accessing the property to deliver to the restaurant, so another truck using that right of way would not significantly affect Taco Bell. Get with me this week as developments occur. Jcook City Attorney: 55 S.E. Third Avenue • Okeechobee, Florida 34974-2903 • (863) 763-3372 • Fax: (863) 763-1686 1130.62 MUNICIPAL CORPORATIONS STREETS AND ALLEYS $ 30.63 ing it to its original condition. Fix v. Bellew -Merritt Co., 138 App Div 579, 123 NYS 248. 22California. Baldocchi v. Four Fifty Sutter Corp., 129 Cal App 383, 18 P2d 682 (requiring restoration of destroyed sidewalk along alley). §30.63. Right of access; in general. The most important right of the abutter incident to ownership of property abutting on a street or alley is the right of access, i.e., the right of ingress and egress. The easement (as it is usually called) of access is not the mere right of going out from one's home or place of business upon the street and later returning to his or her own land, but includes a certain convenience in the use of one's property with respect to the rest of the world, I such as the opportu- nity for a person's family or guests to come to his or her property without unreasonable hindrance or interruption.2 It includes not merely the right of the abutting owner to go into and come out of his or her premises but also the right to have the premises accessi- ble to patrons, clients, customers and visitors generally,3 with a degree of convenience and ease which in the circumstances are reasonable.4 Accordingly, the measure of the right of an abutter to access to a street is reasonable ingress and egress under all the circumstances.5 Clearly, the rights of an owner of property abutting the street or public way are subject to the power of the state and the munici- pality to control and regulate the streets.e This is true even though the fee of the street is in the abutting property owner.? Thus, a municipality may exercise its police power to restrict the flow of traffic in residential areas and included in this power is the power to restrict the use of certain streets with permanent barricades.8 The right of access to right-of-way does not include the right to travel in any particular direction from one's property or upon any specific part of the public highway right-of-way.e Accordingly, the owners of properties in abutting cities may not thwart the letter and spirit of a city's ordinance closing a road to through traffic into an adjacent city by the purchase of property in the first city that includes a road right-of-way in order to gain access to their devel- opment in the second city.10 In most jurisdictions this right of access is held to be a proprie- tary right, an easement in the street attached to the estate or ownership of property abutting on a street or alley." It is an incident of ownership of property adjoining a street, 12 usually inde- pendent of the fee title to the bed of the street, 13 although there is authority to the contrary, 14 and not shared with the public at large. 15 It is property which cannot be appropriated to the use of the public without compensation, l9 unless a suitable alternative remains or is provided. 17 The right of access is said to appertain to the property of the abutting owner; it is the owner's right of free passage between his or her property and the street so that the owner may go upon it to exercise his or her public right of travel and then return.18 The right of access passes with a conveyance of the land.19 Furthermore, one who holds an easement running to a public street enjoys the same rights of access as an owner of land adjoining the street.20 Therefore, a city cannot deprive property holders of the right of access,21 nor may the right be unreasonably impaired.22 This applies to the obstruction of an alley affording access to abutter's property, as well as to the street.23 Of course, a temporary and reasonable obstruction of the street or sidewalk by a municipality for a lawful purpose is a legitimate incident of and limitation on the easement of access.24 If the right of access is materially interfered with it is a special injury which entitles the abutter to sue for damages or to enjoin or abate the obstruction.25 The right of access, however, although it has ordinarily been deemed to be appurtenant to land abutting at the end of a street,29 has been held to extend no further than until the street upon which the property abuts reaches some other connecting street or way,27 a rule sometimes applied in connection with the allowance of dam- ages for vacation of a street.28 The cutting off of the access of an abutting owner to the street, as a "taking" or "injury" within the constitutional provisions governing the law of eminent domain, will be noticed also in the chapters on eminent domain, public improvements, and on franchises.29 While an abutting owner has the unquestioned right to use the street as a means of ingress and egress, etc., that right is subject to such reasonable use of the street not inconsistent with its mainte- nance as a public highway, as may be necessary for the public good and convenience and which, does not seriously impair the owner's right.30 So, cities may make streets narrower without violating the rights of the abutting owner,31 unless the street is so narrowed or altered as to materially and substantially impair the landowner's access.32 A city may construct and maintain a railing or barrier on a public way or street for the ordinary exigencies of travel, to 382 9 383 §30.63 MUNICIPAL CORPORATIONS safeguard the traveling public even if the entrance of an abutter may be obstructed,33 or may otherwise restrict the right of ingress and egress by traffic regulations.34 Furthermore, if the right of access creates a dangerous and serious traffic hazard, an injunction will lie to enjoin the right of access.35 Following a property owner's abandonment of his or her rights of access to an abutting street, the city may authorize a new entrance to the property.311 Needless to say, a property owner has no right of access to a road that does not exist but would abut his or her land if it did exist.37 Generally, a property owner must show that he or she is an "abutter" in order to claim the right to use a particular street or road for ingress to or egress from the owner's property.38 However, under certain circumstances a lot owner within a subdivision, although not an abutting owner, has an easement of use as to dedicated streets and alleys within the subdivision and thus has a claim of right equal to that of an abutting owner.39 lArizona. Wood v. Phoenix - Tempe Stone Co., 35 Ariz 155, 275 P 5. Arkansas. Campbell v. Arkansas State Highway Commission, 183 Ark 780, 38 SW2d 753. The owner of property abutting upon a street has an easement in such street for the purpose of ingress and egress which attaches to his property and in which he has a right of property as fully as in the lot itself. Flake v. Thompson, Inc., 249 Ark 713, 460 SW2d 789. California. Bacich v. Board of Control of California, 23 Cal 2d 343, 144 P2d 818, 823, citing McQuillin Mun Corp; Rogelmair v. Los Angeles, 137 Cal 125, 29 P2d 880; Rosenthal v. Los Angeles, 193 Cal App 2d 29, 13 Cal Rptr 824 (right defined and extent dis- cussed); Beckham v. State, 64 Cal App 2d 487, 149 P2d 296 (defining the right, and stating its extent). Connecticut. Johnson v. Town of Watertown, 131 Conn 84, 38 A2d 1. Georgia. Metropolitan Rapid Transit Authority v. Datry, 235 Ga 568, 220 SE2d 905; Gardner v. Brunswick, 197 Ga 167, 28 SE2d 135. Indiana. Woodsmall v. Carr Tire Co., 98 Ind App 446, 185 NE 163. Kentucky. Allsmiller v. Johnson, 309 Ky 695, 218 SW2d 28. Maryland. Alan Const. Co. v. Gerding, 209 Md 71, 120 A2d 353, cit- ing McQuillin Mun Corp. Missouri. Stout v. Frick, 333 Mo 826, 62 SW2d 1057. Nebraska. W.E.W. Truck Lines, Inc. v. State Dept. of Roads, 178 Neb 218, 132 NW2d 782. New York. Larkin v. Schwab, 242 NY 330, 151 NE 637; Quaglia v. Incor- porated Village of Munsey Park, 54 App Div 2d 434, 389 NYS2d 616, citing McQuillin Mun Corp; Jablowsky v. State, 38 NYS2d 679; Decker v. God- dard, 139 Misc 824, 249 NYS 381. 384 STREETS AND ALLEYS North Carolina. Wofford v. North Carolina State Highway Com- mission, 263 NC 677,140 SE2d 376. Ohio. Greenberg v. L.I. Snodgrass Co., 95 Ohio App 307, 119 NE2d 114; State v. Toledo, 75 Ohio App 378, 62 NE2d 256. Oklahoma. Norman v. Safeway Stores, Inc., 193 Okla 534, 145 P2d 765, 767 (holding right is absolute). Oregon. Cove Lodge v. Harris, 134 Ore 566, 294 P 355. Tennessee. Sharber v. Nashville, 27 Tenn App 625, 183 SW2d 777. Texas. San Antonio v. Olivares, 505 SW2d 526 (Tex); Beaumont v. Marks, 443 SW2d 253 (Tex). Virginia. Nusbaum v. Norfolk, 151 Va 801, 145 SE 257. Washington.'Denman v. Tacoma, 149 Wash 314, 268 P 1043; Fry v. O'Leary, 141 Wash 465, 252 P 111. West Virginia. Dick v. Hinton, 109 W Va 708, 156 SE 81, citing McQuillan Mun Corp. Wyoming. Thomas v. Jultak, 68 Wyo 198,231 P2d 974, quoting McQuil- lin Mun Corp. Generally as to right of ingress and egress, see § 30.54. 2Alabama. Birmingham v. Hood - McPherson Realty Co., 233 Ala 352, 172 So 114. Wyoming. Thomas v. Jultak, 68 Wyo 198, 231 P2d 974, quoting McQuil- lin Mun Corp. 3Alabama. Birmingham v. Hood - McPherson Realty Co., 233 Ala 352, 172 So 114. Idaho. Ben Lomond, Inc. v. Idaho Falls, 92 Idaho 595, 448 P2d 209. Kansas. Longenecker v. Wichita Railway & Light Co., 80 Kan 413, 423, 102 P 492. § 30.63 Missouri. Fowler v. Nelson, 213 Mo App 82, 246 SW 638. Members of the public and the owner both have a right of ingress and egress to and from the adjoining prop- erty over and across the sidewalk, including vehicular, as well as pedes- trian traffic. Levine v. Jale Corp., 413 SW2d 564 (Mo App). New Hampshire. Berlinguette v. Stanton, 120 NH 760, 423 A2d 289. New York. Greeley Sightseeing Co. v. Riegelmann, 119 Misc 84, 195 NYS 845. Rhode Island. Bill by gasoline station lessee for injunction against closing of street by city was not demur- rable under allegation that they were deprived of all access to their land from said street and had also been deprived of their special right of property in that highway over and above their easement of passage which they had in common with the general public. Wolfe v. Provi- dence, 73 RI 417, 57 A2d 181. Texas. San Antonio v. Olivares, 505 SW2d 526 (Tex); Beaumont v. Marks, 443 SW2d 253 (Tex); State v. Meyer, 403 SW2d 366 (Tex), citing McQuillin Mun Corp. Wyoming. Thomas v. Jultak, 68 Wyo 198, 231 P2d 974, quoting McQuil- lin Mun Corp. Diversion of business by obstruc- tion as special injury entitling abutter to sue, see § 30.149. 4California. Delta Rent-A-Car Systems, Inc. v. Beverly Hills, 1 Cal App 3d 781, 82 Cal Rptr 318 (access at end of block reasonable and convenient). Kansas. Where city changed char- acter of street to a controlled access highway facility and provided no front - 385