Agenda 05/24/2011 Item #16E 4Agenda Changes
Board of County Commissioners Meeting
May 24, 2011
Continue Item 16D9 to the June 14, 2011 BCC Meetine: To approve and authorize the Chairman to sign
an amendment to the Collier County Hunger and Homeless Coalition (HHC) Subrecipient Agreement for the
U.S. Department of Housing and Urban Development (HUD) Homeless Prevention and Rapid Re- Housing
(HPRP) Grant approved by the Board on September 15, 2009, Item 161319. This amendment will allow for a
revision of Exhibit A of the Subrecipient Agreement to accommodate the HHC request to no longer include
Homeless Management Information System (HMIS) activities and to allow HHC to more fully expend grant
funds. (Staffs request to modify back -up documents to satisfy County Attorney's requirements)
Move Item 16E3 to Item 1OD: Recommendation to approve the First Amendment to Lease Agreement,
aka the cattle lease, for the Pepper Ranch Preserve under the Conservation Collier Land Acquisition
Program and direct the County Manager, or his designee, to implement the Lease Amendment terms.
(Commissioner Coletta and Commissioner Hiller's separate request)
Move Item 16E4 to Item 10E: Recommendation to approve an Access
Easement to the Florida Department of Environmental Protection (FDEP)
and a Declaration of Restrictive Covenant which will allow FDEP to monitor
the cattle vat clean -up site at Pepper Ranch Preserve and restrict public uses
within the cattle vat clean -up site. (Commissioner Coletta and Commissioner
Hiller's separate request)
Move Item 16E5 to Item IOF: Recommendation to authorize the release of $250,000 held in escrow to
Lake Trafford Ranch, LLLP, the Seller of Pepper Ranch Preserve, and approve the associated Budget
Amendment. (Commissioner Coletta and Commissioner Hiller's separate request)
Move Item 16F2 to Item IOG: Authorize the County Attorney to advertise an ordinance for future
consideration which would amend Ordinance No. 04 -12, as amended, adding provisions relating to
requirements for certificate holders operating non - transport Advanced Life Support (ALS) services.
(Commissioner Hiller and Commissioner Henning's separate request)
Move Item 16C6 to Item l OH: Recommendation to award Contract #11 -5673, "Disaster Debris Removal
and Disposal Services," to three firms, and approve AshBritt Environmental Services, Inc., as the initial
debris removal contractor in operational readiness for the 2011 Hurricane Season. The firms provide post -
disaster equipment and human resources for the collection, removal and disposal of disaster generated
debris, which will ensure prompt, timely and efficient restoration of essential services. (Commissioner Hiller's
request)
Note:
Proclamations 4A and 4B to be presented at end of proclamations due to awardees not available at beginning
of proclamations being presented.
Correction to Bid Number for Item 16C2: "•-,^Fa bid +" l 5657 Award bid #I1 -5647, Grease Hauling Services,
to Rockfill Associates, Inc. D /B /A Crews Environmental and authorize the Chairman to sign the agreement
following County Attorney approval, in the estimated annual amount of $50,000. (Staffs request to clarify
language)
5/26/20112:38 PM
5/24/2011 Item 16.E.4.
EXECUTIVE SUMMARY
Recommendation to approve an Access Easement to the Florida Department of Environmental
Protection (FDEP) and a Declaration of Restrictive Covenant which will allow FDEP to monitor
the cattle vat clean -up site at Pepper Ranch Preserve and restrict public uses within the cattle vat
clean -up site.
OBJECTIVE: To establish and implement institutional and engineering controls over the Pepper
Ranch Preserve cattle vat clean -up site as required by FDEP regulations.
CONSIDERATIONS: On November 18, 2008, Agenda Item No. 10E, the Board approved an
Agreement for the Sale and Purchase of the Pepper Ranch Preserve and on January 27, 2009,
Agenda Item No. 101, the Board directed staff to move forward with closing. Staff closed on
February 6, 2009.
Section 6.015 of the Lake Trafford Ranch, LLLP Agreement for Sale and Purchase, requires the
Seller to evaluate, and then remediate the contamination within an approximate 12 acre portion
of Pepper Ranch that was the site of an old, but long ago discontinued, cattle dipping vat that
contained levels of arsenic concentration above Florida Department of Environmental Protection
(FDEP) Cleanup Target Levels (CTLs). The Seller contracted HSA Environmental Consultants
and Scientists, Inc. (HSA) to remediate the contamination associated with this cattle dipping vat.
HSA implemented a FDEP approved Remedial Action Plan (RAP), and monitoring has shown
that the contamination plume associated with the cattle dipping vat is shrinking. Pursuant to
Section 6.015 of the Lake Trafford Ranch, LLLP Agreement for Sale and Purchase, once the
contamination plume is stable or shrinking, the Seller must assist the County and work with
FDEP to establish and implement institutional and engineering controls over the cattle vat site.
The Seller has already implemented engineering controls over the cattle vat site by installing
clean fill upon and a fence around the area. The Declaration of Restrictive Covenant, and its
exhibits, will establish and implement institutional controls over the site to reduce or eliminate
the risk of exposure of users or occupants of the site and the environment to contaminants and
to reduce or eliminate the threat of migration of contaminants. Under the Covenant:
a. There shall be no use of the groundwater under the cattle vat clean -up site.
b. There shall be no stormwater swales, stormwater detention or retention facilities, or
ditches on the cattle vat clean -up site.
c. Excavation and construction deeper than two feet below land surface is not prohibited
within the areas containing contaminated soils provided any contaminated soils that
are excavated are removed and properly disposed of pursuant to Chapter 62 -780,
F.A.C. and any other applicable local, state, and federal requirements.
d. In order to ensure the perpetual nature of the above restrictions, Collier County shall
reference these restrictions in any subsequent lease or deed of conveyance,
including the recording book and page of record of the Declaration.
e. FDEP shall be granted an easement to allow them access to monitor the cattle vat
clean -up site.
FISCAL IMPACT: There is no fiscal impact associated with this Executive Summary.
Recording costs associated with recording the Access Easement and the Declaration of
Restrictive Covenant shall be paid by Lake Trafford Ranch, LLLP.
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5/24/2011 Item 16.E.4.
LEGAL CONSIDERATIONS: This item has been reviewed by the County Attorney's Office for
legal sufficiency. A majority vote is required for this item's passage. — STW
GROWTH MANAGEMENT IMPACT: There is no growth management impact associated with
this Executive Summary.
RECOMMENDATION: That the Board:
1) Approves and authorizes the Chairman to execute the Access Easement and Declaration of
Restrictive Covenant; and 2) Directs the County Manager or his designee to proceed to follow
all appropriate closing procedures and to record the aforementioned documents in the Public
Records of Collier County, Florida.
Prepared By: Melissa Hennig, Principal Environmental Specialist, Department of Facilities
Management
Attachments:
1. Declaration of Restrictive Covenant
2. Lake Trafford Ranch, LLLP Agreement for Sale and Purchase
3. FDEP Access Easement
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5/24/2011 Item 16.E.4.
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.E.4.
Item Summary: Recommendation to approve an Access Easement to the Florida
Department of Environmental Protection (FDEP) and a Declaration of Restrictive Covenant
which will allow FDEP to monitor the cattle vat clean -up site at Pepper Ranch Preserve and
restrict public uses within the cattle vat clean -up site.
Meeting Date: 5/24/2011
Prepared By
Name: HennigMelissa
Title: Environmental Specialist, Principal,Facilities Management
4/28/2011 3:50:25 PM
Submitted by
Title: Environmental Specialist, Principal,Facilities Management
Name: HennigMelissa
4/28/2011 3:50:27 PM
Approved By
Name: ErbCindy
Title: Property Acquisition Specialist, Senior,Facilities
Date: 4/29/2011 9:48:42 AM
Name: CampSkip
Title: Director - Facilities Management,Facilities Manage
Date: 5/2/2011 1:40:47 PM
Name: SmithKristen
Title: Administrative SecretaryRisk Management
Date: 5/3/20114:55:45 PM
Name: WilliamsSteven
Title: Assistant County Attorney,County Attorney
Date: 5/5/2011 8:17:43 AM
Packet Page -1637-
Name: PriceLen
Title: Administrator - Administrative Services,
Date: 5/9/20114:49:36 PM
Name: WilliamsSteven
Title: Assistant County Attorney,County Attorney
Date: 5/10/2011 10:01:04 AM
Name: KlatzkowJeff
Title: County Attorney,
Date: 5/12/20112:40:57 PM
Name: StanleyTherese
Title: Management/Budget Analyst, Senior,Office of Management & Budget
Date: 5/13/20113:30:27 PM
Name: OchsLeo
Title: County Manager
Date: 5/15/20119:33:26 PM
Packet Page -1638-
5/24/2011 Item 16.E.4.
CONSERVATION COLLIER
Pepper Ranch Preserve
Prepared by:
Steven T. Williams, Esquire
Office of the County Attorney
3299 Tamiami Trail East, Suite 800
Naples, Florida 34112 -5749
(239) 252 -8400
ACCESS EASEMENT
5/24/2011 Item 16.E.4.
THIS ACCESS EASEMENT, made and entered into this day of
, 2011, by COLLIER COUNTY, a political subdivision of the State
of Florida, whose post office address is 3335 Tamiami Trail East, Suite 101, Naples,
Florida 34112, hereinafter referred to as "Grantor", to FLORIDA DEPARTMENT OF
ENVIRONMENTAL PROTECTION, DIVISION OF WASTE MANAGEMENT, 2295
Victoria Avenue, Ste 364, Fort Myers, Florida 33902, hereinafter referred to as
"Grantee ".
(Wherever used herein the terms "Grantor" and "Grantee" include all the parties to this instrument and their respective heirs,
legal representatives, successors and assigns.)
WITNESSETH:
Grantor, for and in consideration of TEN DOLLARS ($10.00) and other valuable
consideration paid by the Grantee, the receipt and sufficiency of which is hereby
acknowledged, hereby conveys, grants, bargains and sells unto the Grantee, its
successors and assigns, a perpetual, non - exclusive easement, for access to, on and
over the land described on Exhibit "A" (the Easement "), to monitor the existing cattle vat
site located in Collier County, Florida, as described on Exhibit "B" (the Benefited Land ").
Subject to easements, restrictions, and reservations of record.
THIS IS NOT HOMESTEAD PROPERTY.
TO HAVE AND TO HOLD the same unto the Grantee, together with the right
to enter upon said land for the purpose of monitoring the existing cattle vat site. The
easement granted herein shall constitute easements running with the land and shall
burden the lands described above.
IN WITNESS WHEREOF, the Grantor has caused these presents to be executed the
date and year first above written.
ATTEST:
DWIGHT E. BROCK, Clerk
, Deputy Clerk
(OFFICIAL SEAL)
Approved as to form and
legal sufficiency:
Steven T. Williams s (f-) ,n
Assistant County Attomey i %•to.
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
By:
Packet Page -1639-
, Chairman
5/24/2011 Item 16.E.4.
�- HIBIT
PA "r3__ r of z�
g HOLE RIIONTES
Doun. ' s
WOSCAKAFOMECTM
950 Encore Way • Naples. Florida 34110 • Phone: 239.254.2000 • Fax: 239.2542075
HM PROJECT #2001111
11/10/2010
REF. DWG. #B -6 670
Page 1 of 1
LEGAL DESCRIPTION:
A 30.00 FOOT WIDE STRIP OF LAND LOCATED IN A PORTION OF SECTIONS 25, 27, AND 35, TOWNSHIP 46
SOUTH, RANGE 28 EAST, COLLIER COUNTY, FLORIDA, LYING 15.00 FEET ON EITHER SIDE OF THE
FOLLOWING DESCRIBED CENTERLINE:
COMMENCE AT THE SOUTH QUARTER CORNER OF SECTION 25, TOWNSHIP 46 SOUTH, RANGE .28
EAST, COLLIER COUNTY, FLORIDA, THENCE RUN S.00'58'38'E., ALONG THE EAST LINE OF THE
NORTHWEST QUARTER OF SECTION 35, TOWNSHIP 46 SOUTH, RANGE 28 EAST, COLLIER COUNTY,
FLORIDA, FOR A DISTANCE OF 30.00 FEET; THENCE RUN SAW0172"W., FOR DISTANCE OF 15.00 FEET
TO THE POINT OF BEGINNING OF THE CENTERLINE HEREIN DESCRIBED; THENCE RUN N.00 "58'3WW..
PARALLEL TO THE EAST LINE OF THE NORTHWEST QUARTER OF SAID SECTION 35, FOR A DISTANCE
OF 29.98 FEET; THENCE RUN N.01.09'15"W., PARALLEL TO THE EAST LINE OF THE SOUTHWEST
QUARTER OF SAID SECTION 25, FOR A DISTANCE OF 1238.43 FEET, TO THE BEGINNING OF A
TANGENTIAL CIRCULAR CURVE, CONCAVE SOUTHWESTERLY; THENCE RUN NORTHWESTERLY, ALONG
THE ARC OF SAID CURVE TO THE LEFT, HAVING A RADIUS OF 80.00 FEET, THROUGH.A CENTRAL
ANGLE OF 90'06'24, SUBTENDED BY A CHORD OF 113.24 FEET AT A BEARING OF N.46'12'27'W., FOR A
DISTANCE OF 125.81 FEET TO THE END OF SAID CURVE; THENCE RUN S.88'4421"W., FOR DISTANCE
OF 2414.34 FEET, TO THE BEGINNING OF A TANGENTIAL CIRCULAR CURVE, CONCAVE
NORTHEASTERLY; THENCE RUN NORTHERLY, ALONG THE ARC OF SAID CURVE TO THE RIGHT,
HAVING A RADIUS OF 135:00 FEET, THROUGH A CENTRAL ANGLE OF 90'32'26, SUBTENDED BY A
CHORD OF 191.82 FEET AT A BEARING OF N.45'59'26"W., FOR A DISTANCE OF 213.33 FEET TO THE END
OF SAID CURVE; THENCE RUN N.00'43'13W., FOR A DISTANCE OF 1122.79 FEET. TO THE BEGINNING OF
A TANGENTIAL CIRCULAR CURVE, CONCAVE SOUTHWESTERLY; THENCE RUN NORTHWESTERLY,
ALONG THE ARC OF SAID CURVE TO THE LEFT, HAVING A RADIUS OF 70.00 FEET, THROUGH 'A
CENTRAL ANGLE OF 90'3470", SUBTENDED BY A CHORD OF 99.49 FEET AT A BEARING OF
N.46'00'23"W., FOR A DISTANCE OF 110.65 FEET TO THE END OF SAID CURVE; THENCE RUN
S.88 °42'26"W., FOR A DISTANCE OF 197.84 FEET; THENCE RUN N:49'46'25"W., FOR A DISTANCE OF
138.65 FEET TO THE POINT OF TERMINATION: CONTAINING 3.851 ACRES. MORE OR LESS.
THIS PROPERTY SUBJECT TO EASEMENTS RESERVATIONS OR RESTRICTIONS OF RECORD
BEARINGS SHOWN HEREON REFER TO THE EAST LINE OF THE NORTHWEST QUARTER OF SECTION 35,
TOWNSHIP 46 SOUTH, RANGE 28 EAST, COLLIER COUNTY, FLORIDA AS BEING S.00- 58'38'E.
SIDELINES OF THE HEREIN DESCRIBED CENTERLINE ARE TO BE LENGTHENED OR SHORTENED TO
MEET THE ANGLE POINTS FORM AND TO A LINE WHICH RUNS PERPENDICULAR TO THE POINT OF
BEGINNING AND TO A LINE WHICH BEARS N.90 *00'00"W. TO THE POINT OF TERMINATION.
HOLE MONIES, INC.
CERTIFICATE OF AUTHORIZATION LB #1772
BYj &2v� "' • P.S.M. #5628
THOMAS.MURP1HY/ STATE OF FLORIDA
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Naples • FoA Myers Venice
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5/24/2011 Item 16.E.4. page I HM of.,
HOLE MONTES
BONN= • RAMM • PATM ns
umawaaa
950 E,w. Way • Nion, Raids 34110 • Fmw 239254.2000 • Fax 2392542075
HM PROJECT # 2001111
12/8/08
REF DWG # &8439
1 OF 1
LEGAL DESCRIPTION:
A PARCEL OF LAND LOCATED IN A PORTION OF SECTION 27, TOWNSHIP 46 SOUTH,
RANGE 28 EAST, COLLIER COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED
AS FOLLOWS:
COMMENCE AT THE EAST QUARTER CORNER OF SECTION 27, TOWNSHIP 46 SOUTH,
RANGE 28 EAST, COLLIER COUNTY, FLORIDA, THENCE RUN N.01 °10'11 "W., ALONG THE
EAST LINE OF THE NORTHEAST QUARTER OF SAID SECTION 27, FOR A DISTANCE OF
60.00 FEET; THENCE RUN N.90 °00'00" W., FOR A DISTANCE OF 265.00 FEET TO THE
POINT OF BEGINNING OF THE PARCEL OF LAND HEREIN DESCRIBED; THENCE
CONTINUE N.90000'00'W., FOR A DISTANCE OF 840.00 FEET; THENCE RUN N.00 °00'00'E.,
FOR A DISTANCE OF 640.00 FEET; THENCE RUN S.90.00V0'E., FOR A DISTANCE OF
840.00 FEET; THENCE RUN S.00100'00'W., FOR A DISTANCE OF 640.00 FEET TO THE
POINT OF BEGINNING; CONTAINING 12.342 ACRES, MORE OR LESS.
THIS PROPERTY SUBJECT TO EASEMENTS RESERVATIONS OR RESTRICTIONS OF
RECORD
BEARINGS SHOWN HEREON REFER TO THE EAST LINE OF THE NORTHEAST QUARTER
OF SECTION 27, TOWNSHIP 46 SOUTH, RANGE 28 EAST, COLLIER COUNTY, FLORIDA AS
BEING N.01 °10'11'W.
HOLE MONTES, INC.
CERTIFICATE OF AUTHORIZATION LB # 1772
BY /NLr / P.S.M. #5628
THOMAS M. MORP10 STATE OF FLORIDA
H.A=1t200/ 111 WJPPAMCRECSLdoc
Packet Page -1642-
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5/24/2011 Item 16.E.4.
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This instrument prepared by:
Board of County Commissioners
3299 Tamiami Trail East, Suite 303
Naples, FL 34112-5746
DECLARATION OF RESTRICTIVE COVENANT
THIS DECLARATION
"Declaration") is made this
(hereinafter "GRANTOR") and
(hereinafter "FDEP").
OF RESTRICTIVE
day of
the Florida Department
RECITALS
COVENANT (hereinafter
—, 20 _, by Collier County
of Environmental Protection
A. GRANTOR is the fee simple owner of that certain real property situated in the
County of Collier, State of Florida, more particularly described in Exhibit "A" attached
hereto and made a part hereof (hereinafter the "Property");
B. The FDEP Facility Identification Number for the Property is COM 293369.
The facility name at the time of this Declaration is Pepper Ranch — Cattle Pen. This
Declaration addresses the discharge that was reported to the FDEP on September
18, 2008;
C. Located on the Pepper Ranch within the former cattle pen was a cattle dipping
vat that was used prior to the 1940's. The discharge of organochlorine pesticides
and arsenic metal on the Property is documented in the following reports that are
incorporated by reference:
1. Site Assessment Report/Remedial Action Plan dated November 14, 2008,
submitted by HSA Engineers and Scientists;
2. Source Removal Report dated August 20, 2009, submitted by HSA Engineers
and Scientists; and
3. Quarterly Groundwater Monitoring and Performance Reports dated July 2009
through June 2010, submitted by HSA Engineers & Scientists;
Page I of 9
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5/24/2011 Item 16.E.4.
4. No Further Action Proposal (incorporated in Groundwater Monitoring and
Performance Report dated June 2010), submitted by HSA Engineers and
Scientists.
D. The reports noted in Recital C set forth the nature and extent of the
contamination that is located on the Property. These reports confirm that
contaminated soil and groundwater as defined by Chapter 62 -780 II A Florida
Administrative Code (F.A.C.), exists on the Property. Also, these reports document
that the groundwater contamination does not extend beyond the Property boundaries
that the extent of the contamination does not exceed % acre; no actual impact or
potential impact to surface water, demonstration (minimum 1 year of groundwater
monitoring) that contaminant concentrations in groundwater at the property
boundaries will not exceed the applicable Level I CTLs and the groundwater
contamination is not migrating.
E. It is the intent of the restrictions in this Declaration to reduce or eliminate the
risk of exposure of users or occupants of the Property and the environment to the
contaminants and to reduce or eliminate the threat of migration of the contaminants.
F. The FDEP has agreed to issue a Site Rehabilitation Completion Order with
Conditions (hereinafter "Order") upon recordation of this Declaration. The FDEP can
unilaterally revoke the Order if the conditions of this Declaration or of the Order are
not met. Additionally, if concentrations of arsenic increase above the levels approved
in the Order, or if a subsequent discharge occurs at the Property, the FDEP may
require site rehabilitation to reduce concentrations of contamination to the levels
allowed by the applicable FDEP rules. The Order relating to FDEP Facility No.
COM_293369, is on file with the FDEP South District Office located at 2295 Victoria
Avenue, Suite 364, Fort Myers, Florida 33902 -2549
G. GRANTOR deems it desirable and in the best interest of all present and future
owners of the Property that an Order be obtained and that the Property, be held
subject to certain restrictions and engineering control, all of which are more
particularly hereinafter set forth.
NOW, THEREFORE, to induce the FDEP to issue the Order and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged
by each of the undersigned parties, GRANTOR agrees as follows
1. The foregoing recitals are true and correct and are incorporated herein by
reference.
2. GRANTOR hereby imposes on the Property the following restriction:
a. There shall be no use of the groundwater under the Property. There
shall be no drilling for water conducted on the Property nor shall any
wells be installed on the Property other than monitoring wells pre -
approved in writing by the FDEP's Division of Waste Management
Page 2 of 9
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5/24/2011 Item 16.E.4.
(DMW), in addition to any authorizations required by the FDEP's
Division of Water Resources Management and the Florida Water
Management District. Additionally, there shall be no stormwater
swales, stormwater detention or retention facilities, or ditches on the
Property. For any dewatering activities, a plan approved by FDEP
DWM must be in place to address and ensure the appropriate handling,
treatment, and disposal of any extracted groundwater that may be
contaminated.
b. The area of soil contamination as located on that portion of the Property
as described in Exhibit B" (hereafter to be referred to as "That Portion of
the Property ") shall be permanently covered and maintained with an
engineering control which is outlined and labeled on Exhibit B must be
covered with a soil cap that is a minimum of two (2) feet of clean and
uncontaminated soil that prevents human exposure. An Engineering
Control Maintenance Plan shall be maintained that includes the
frequency of inspections and monitoring and the criteria for determining
when the engineering control has failed.
C. Excavation and construction deeper than two feet below land surface is
not prohibited within the areas containing contaminated soils on That
Portion of the Property as described in Exhibit B provided any
contaminated soils that are excavated are removed and properly
disposed of pursuant to Chapter 62 -780, F.A.C. and any other
applicable local, state, and federal requirements. Nothing herein shall
limit any other legal requirements regarding construction methods and
precautions that must be taken to minimize risk of exposure while
conducting work in contaminated areas. For any dewatering activities,
a plan approved by FDEP DMW must be in place to address and
ensure the appropriate handling, treatment, and disposal of any
extracted groundwater that may be contaminated. Nothing in this
Declaration shall prevent, limit or restrict any excavation or construction
at or below the surface outside the boundary of contaminated soils on
That Portion of the Property as described in Exhibit B.
3. In the remaining paragraphs, all references to "GRANTOR" and "FDEP" shall
also mean and refer to their respective successors and assigns.
4. For the purpose of monitoring the restrictions contained herein, FDEP is
hereby granted a right of entry upon and access to the Property at reasonable
times and with reasonable notice to the GRANTOR. Access to the Property is
further granted by an access easement recorded contemporaneously with this
Declaration.
5. It is the intention of GRANTOR that this Declaration shall touch and concern
the Property, run with the land and with the title to the Property, and shall
Page 3 of 9
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5/24/2011 Item 16.E.4.
apply to and be binding upon and inure to the benefit of GRANTOR and
FDEP, and to any and all parties hereafter having any right, title or interest in
the Property or any part thereof. The FDEP may enforce the terms and
conditions of this Declaration by injunctive relief and other appropriate
available legal remedies. Any forbearance on behalf of the FDEP to exercise
its right in the event of the failure of the GRANTOR to comply with the
provisions of this Declaration shall not be deemed or construed to be a waiver
of the FDEP's rights hereunder. This Declaration shall continue in perpetuity,
unless otherwise modified in writing by GRANTOR and the FDEP as provided
in paragraph 8 hereof. These restrictions may also be enforced in a court of
competent jurisdiction by any other person, firm, corporation, or governmental
agency that is substantially benefited by these restrictions.
6. If the GRANTOR does not or will not be able to comply with any or all of the
provisions of this Declaration, the GRANTOR shall notify FDEP in writing
within three (3) calendar days. Additionally, GRANTOR shall notify FDEP
thirty (30) days prior to any conveyance, sale, granting or transfer of the
Property or portion thereof, to any heirs, successors, assigns or grantees,
including, without limitation, the conveyance of any security interest in said
Property.
7. In order to ensure the perpetual nature of these restrictions, GRANTOR shall
reference these restrictions in any subsequent lease or deed of conveyance,
including the recording book and page of record of this Declaration.
Furthermore, prior to the entry into a landlord- tenant relationship with respect
to the Property, the GRANTOR agrees to notify in writing all proposed tenants
of the Property of the existence and contents of this Declaration of Restrictive
Covenant.
B. This Declaration is binding until a release of covenant is executed by the
FDEP Secretary (or designee) and GRANTOR and is recorded in the county
land records. To receive prior approval from the FDEP to remove any
requirement herein, cleanup target levels established pursuant to Florida
Statutes and FDEP rules must have been achieved. This Declaration may be
modified in writing only. Any subsequent amendment must be executed by
both GRANTOR and the FDEP and be recorded by the real property owner as
an amendment hereto.
9. If any provision of this Declaration is held to be invalid by any court of
competent jurisdiction, the invalidity of that provision shall not affect the validity
of any other provisions of the Declaration. All such other provisions shall
continue unimpaired in full force and effect.
10. GRANTOR covenants and represents that on the date of execution of this
Declaration that GRANTOR is seized of the Property in fee simple and has
good right to create, establish, and impose this restrictive covenant on the use
of the Property. GRANTOR also covenants and warrants that the Property is
Page 4 of 9
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5/24/2011 Item 16.E.4.
free and clear of any and all liens, mortgages, or encumbrances that could
impair GRANTOR'S rights to impose the restrictive covenant described in this
Declaration or that would be superior to the restrictive covenant described in
this Declaration.
Page 5 of 9
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5/24/2011 Item 16.E.4.
IN WITNESS WHEREOF, Collier County has executed this instrument, this
day of 20_.
ATTEST:
DWIGHT E. BROCK, CLERK
, DEPUTY CLERK
Approval for form and legal Sufficiency:
Steven Williams /V It
Assistant County Attorney J4.6
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA
By:
FRED W. COYLE, CHAIRMAN
The foregoing instrument was acknowledged before me this day of _, 20
, by as representative for the Florida
department of Environmental Protection.
Personally Known OR Produced Identification
Type of Identification Produced
Signature of Notary Public
Print Name of Notary Public
Page 6 of 9
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5/24/2011 Item 16.E.4.
Approved as to form by the Florida Department of Environmental Protection, office of
General Counsel,
IN WITNESS WHEREOF, the Florida Department of Environmental Protection
has executed this instrument, this _ day of 20_
Signed, sealed and delivered in the presence of:
FLORIDA DEPARTMENT OF
ENVIRONMENTAL PROTECTION
By:
Print Name:
Jon M. Iglehart
Director of South Florida District
Of. South Florida District
Division of Waste Management
2295 Victoria Avenue, Suite 364
Fort Myers, Florida 33902-2549
Signed, sealed and delivered in the presence of:
Witness:
Print Name:
Witness:
Print Name:
STATE OF
COUNTY OF
Date:
Date:
The foregoing instrument was acknowledged before me this _ day of
20 _, by as representative for the
Florida Department of Environmental Protection.
Personally Known OR Produced Identification
Type of Identification Produced
Signature of Notary Public
Print Name of Notary Public
Commission No.
Commission Expires:
Page 7 of 9
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5/24/2011 Item 16.E.4.
EXHIBIT "A"
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LMAL DESCFWnON:
A PARCEL OF LAND LOCATED IN A PORTION OF SECTION 27, TOWNSHIP 46 SOUTH.
RANGE 28 EAST. COLLIER COUNTY. FLORIDA, BEING MORE PARTICULARLY DESCRIBED
AS FOLLOWS:
COMMENCE AT THE EAST QUARTER CORNER OF SECTION 27. TOWNSHIP 46 SOUTH.
RANGE 28 EAST, COLLIER COUNTY, FLORIDA, THENCE RUN N.01*10'11'W.. ALONG THE
EAST LINE OF THE NORTHEAST QUARTER OF SAID SECTION 27, FOR A DISTANCE-OF
60.00 FEET: THENCE RUN N.90'00' W., FOR A DISTANCE OF 285.00 FEET TO THE
POINT OF BEGINNING OF THE PARCEL OF LAND HEREIN DESCRIBED; THENCE
CONTINUE N.90'QOr0 W, FOR A DISTANCE OF 840.00 FEET; THENCE RUN N.00'00'00'E..
FOR A DISTANCE OF 640.00 FEET; THENCE RUN S.8000DWE., FOR A DISTANCE OF
840.00 FEET; THENCE RUN S.00000W W., FOR A DISTANCE OF 640.00 FEET TO THE
POMIT QF BEGINNING: CONTAINING 12.342 ACRES, MORE OR LESS.'
THIS PROPERTY SUBJECT TO EASEMENTS RESERVATIONS OR RESTRICTIONS OF
RECORD
BEARINGS SHOWN HEREON REFER TO THE EAST LINE OF THE NORTHEAST OUART'ER
OF SEMON 27, TOWNSJVP 46 SOUTH, RANGE 28 EAST, COLLIER COUNTY, FLORIDA AS
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5/24/2011 Item 16.E.4.
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Exhibit B
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Packet Page -1655-
5/24/2011 Item 16.E.4.
CONSERVATION COLLIER
Taxldentification Numbers: 00052360002 ,00052440003,0052640007 ,00052680009,00052960004,
00053000002 ,00053200008,00053840000 ,000539200018 00054040003 ^
Prepared by: U E
Jennifer A. Belpedio, Esquire
Office of the County Attorney
3301 East Temiami Trail
Naples, Florida 34112
(239) 252 -6400
AGREEMENT FOR SALE AND PURCHASE
THIS AGREEMENT is made and entered into by and between LAKE TRAFFORD
RANCH LLLP, a Florida limited liability limited partnership, by its undersigned General
Partners, whose address is 481 Carica Road, Naples, FL 34108, (hereinafter referred
to as "Seller"), and COLLIER COUNTY, a political subdivision of the State of Florida, its
successors and assign, whose address is 3301 Tamiami Trail East, Naples, FL 34112,
(hereinafter referred to as "County" or as "Purchaser").
WITNESSETH
WHEREAS, Seller is the owner of that certain parcel of real property (hereinafter
referred to as "Property"), located in Collier County, State of Florida, and being more
particularly described in Exhibit "A ", attached hereto and made a part hereof by
reference.
WHEREAS, Purchaser is desirous of purchasing that portion of the Property herein
described, subject to the conditions and other agreements hereinafter set forth, and
Seller is agreeable to such sale and to such conditions and agreements.
WHEREAS, in accordance with the approved Conservation Collier Purchasing Policy,
the purchase price of $32,525,080.02 is based on the average of two independent,
state - certified general real estate appraisers, one giving a value of $34,000,000
(Calloway and Price, Inc.) and the other at $32,400,000 (Anderson and Carr, Inc.) less
a voluntary reduction in price by the Seller of $674,919.98.
NOW, THEREFORE, and for and in consideration of the premises and the respective
undertakings of the parties hereinafter set forth and the sum of Ten Dollars ($10.00),
the receipt and sufficiency of which is hereby acknowledged, it is agreed as follows:
AGREEMENT
1.01 In consideration of the purchase price and upon the terms and conditions
hereinafter set forth, Seller shall sell to Purchaser and Purchaser shall purchase
from Seller the Property, described in Exhibit "A" except for the subsurface portion
thereof and the rights appurtenant thereto described in Paragraph 1.02 below.
1.02 Seller shall retain, shall not sell or convey to the Purchaser, and the deed(s)
of conveyance will reserve the oil, gas, mineral and other subsurface rights below
a depth of one hundred fifty (150) feet beneath the portion of the Property, as
described in Exhibit "B" including all rights, benefits, and revenue to which the
landlord under the leases listed on Exhibit "E" is entitled together with a right of
entry to explore and extract the oil, gas and minerals. Seller shall be concurrently
granted an Access Easement by Purchaser over the area graphically shown on
Exhibit "C" at closing. Seller will have a legal description and sketch of the area
over which the Access Easement is to be granted prepared at their expense.
Seller shall also retain and shall not sell or convey to the Purchaser stewardship
sending area credits established pursuant to the existing Stewardship Easement
Agreement by and between Seller and County, recorded in Official Records Book
4089, at Page 3837, of the Public Records of Collier County, Florida.
It is acknowledged that the Property has the potential to, or may, generate
additional stewardship credits under the Collier County Rural Lands Stewardship
program, as well as credits for wetlands mitigation, panther habitat, and other
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10,E
credits as may be available under other governmental regulatory programs. Any
and all such additional or potential credits belong to the Property and the right to
develop or establish them shall pass to the Purchaser as part of the sale.
1.03 Seller shall have the option at closing hereunder, to enter into a Cattle Lease
with Purchaser whereby Seller will lease back a portion of the Property for grazing
cattle thereon. If the Seller does not elect to enter into a Cattle Lease at closing,
Seller will have ninety (90) days after closing to make arrangements to remove
the existing cattle during which 90 day period they shall remain_ The form of
lease and its terms are attached as Exhibit D. This option must be exercised at
closing.
II. PAYMENT OF PURCHASE PRICE
2.01 The purchase price (the "Purchase Price ") for the Property shall be THIRTY
TWO MILLION, FIVE HUNDRED TWENTY FIVE THOUSAND EIGHTY
DOLLARS AND 021100 ($32,625,080.02) (U.S. Currency) payable at time of
closing. Buyer acknowledges that Seller will be treating the amount of the
voluntary reduction in price referred to in the third whereas clause of this contract
as a bargain sale and reporting it as a charitable deduction for federal income tax
purposes. Buyer agrees that it will execute such written statements or
confirmations as are requested by Seller that may include completion of required
forms and provide such information to Seller each as is required under applicable
provisions of the Internal Revenue Code of 1986 as amended including but not
limited to Section 170(f)(8) and implementing regulations.
2.02 At Closing, pursuant to Paragraph 6.017 below, Purchaser shall deposit a
portion of the Purchase Price in the amount of Three Hundred Eighty Eight
Thousand Two Hundred Fifty Dollars ($388,250) in a segregated or dedicated
interest bearing escrow account to be maintained and held by Stewart Title
Guaranty Company formerly known as Midwest Title Company, pending
completion of the work described in Paragraphs 6.012, 6.013 and 6.015 within this
Agreement. The terms under which this sum will be held and retained will be as
provided in Paragraph 6 of this Agreement. As Seller completes said work,
County will cause the escrow agent to release the retained amount to the Seller,
inclusive of the earned interest as provided in Paragraph 6.
In the event the Seller fails to complete the work described in Paragraphs 6.012,
6.013 and 6.015 by the established date(s) as set out within this Agreement for
any reason, the County will retain the money so withheld and the Seller and
Purchaser shall have no further obligation to one another as to the work described
in Paragraphs 6.012, 6.013 and 6.015 under this Agreement.
III. CLOSING
3.01 Subject to the conditions precedent provided herein, the Closing (THE
"CLOSING DATE ", "DATE OF CLOSING ", OR "CLOSING ") of the transaction
shall be held on or before December 31, 2008 by the Purchaser and Seller.
Nothwithstanding anything to the contrary in this Agreement, in no event will the
closing be delayed beyond December 31, 2008 by reason of times allowed for
Seller to remediate or cure any survey. Any time provided for herein is for the
benefit of Seller who may elect to avail itself of such times frames as are provided
for and to extend the closing accordingly, but Seller is not required to allow them to
extend the closing beyond December 31, 2008. Nothing requires that the
Purchaser accept title or the conditions reflected in any survey if they are other
than as required hereby. If the title or survey are not in the condition required, and
Seller is unwilling to extend the closing beyond December 31, 2008 to effect
remedial measures, the Purchaser is not required to close and neither party will be
further obligated under this Agreement. The Closing shall be held at the Collier
County Attorney's Office, Administration Building, 3301 Tamiami Trail East,
Naples, Florida. The procedure to be followed by the parties in connection with
the Closing shall be as follows:
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5/24/2011 Item 16.E.4.
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3.011 Seller shall convey a marketable title free of any liens, encumbrances,
exceptions, or qualifications except as described below.
3.0111 Warranty Deed(s) in favor of Purchaser conveying title to the
Property, containing the reservations set forth in paragraph 1.02, free
and clear of all liens and encumbrances other than:
(a) The lien for current taxes and assessments.
(b) The Permitted Encumbrances as shown on Exhibit "E ".
3.0112 Combined Purchaser - Seller closing statement.
3.0113 A "Gap," Tax Proration, Owner's and Non - Foreign Affidavit," as
required by Section 1445 of the Internal Revenue Code and as required
by the title insurance underwriter in order to insure the "gap" and issue
the policy contemplated by the title insurance commitment.
3.0114 A W -9 Form, "Request for Taxpayer Identification and
Certification" as required by the Internal Revenue Service.
3.012 At the Closing; the Purchaser, or its assignee, shall cause to be delivered to
the Seller the following:
3.0121 Purchaser shall pay the Purchase Price less the sum to be
withheld and retained pursuant to paragraph 2.02 by wire transfer into
Seller's designated account with immediately available funds on the
Closing Date. No funds shall be disbursed to Seller, nor will the closing
take place, until either the Purchaser's Real Property Management staff
verges that the state of the title to the Property has not changed
adversely since the date of the last endorsement to the commitment,
referenced in Paragraph 4.011 thereto or alternatively the County's Title
Company endorses its commitment to irrevocably commit to issue the
Owner's title policy to Purchaser in accordance with the commitment
immediately after the recording of the deed(s).
3.0122 Funds payable to the Seller representing the cash payment due
at Closing in accordance with Article III hereof, shall be subject to
adjustment for prorations as hereinafter set forth.
3.02 Each party shall be responsible for payment of its own attorney's fees. Seller,
at its sole cost and expense, shall pay at Closing all documentary stamp taxes due
relating to the recording of the Warranty Deed(s), in accordance with Chapter
201.01, Florida Statutes, and the cost of recording any instruments necessary to
clear Seller's title to the Property. The cost of the Owner's Form B Title Policy,
issued pursuant to the Commitment provided for in Paragraph 4.011 below, shall
be paid by Purchaser. The cost of the title commitment shall also be paid by
Purchaser.
3.03 Purchaser shall pay for the cost of recording the Warranty Deed(s). Real
Property taxes shall be prorated based on the current year's tax with due
allowance made for maximum allowable discount, homestead and any other
applicable exemptions and paid by Seller. If Closing occurs at a date which the
current year's millage is not fixed, taxes will be prorated based upon such prior
year's millage.
3.04 Purchaser shall grant an Access Easement as specified in Paragraph 1.02.
Seller to provide legal description and sketch for the Access Easement at its
expense. Seller to pay the cost of recording the Access Easement.
IV. REQUIREMENTS AND CONDITIONS
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4.01 Upon execution of this Agreement by both parties or at such other time as
specified within this Article, Purchaser and/or Seller, as the case may be, shall
perform the following within the times stated, which shall be conditions precedent
to the Closing;
4.011 Purchaser has obtain as evidence of title an ALTA Commitment for an
Owner's Title Insurance Policy (ALTA Form B -1970) covering the Property,
together with hard copies of all exceptions shown thereon. In addition to
Purchaser's rights in paragraph 4.013 below to notify Seller of title defects or
objections based on a survey, Purchaser shall have until December 15, 2008
to notify Seller in writing if the title commitment contains exceptions for
matters that are not Permitted Encumbrances, that title is unmarketable, or
the title commitment requires corrective action to be taken to make the title
marketable, Seller shall have the right to cure such matters as provided in
Paragraph 4.012 below and shall be obligated to cure, or permit payment of,
any voluntarily created liens encumbering the Property at closing.
4.012 If Purchaser shall fail to advise the Seller in writing of any such
objections in Seller's title in the manner herein required by this Agreement,
the title shall be deemed acceptable. Upon notification of Purchaser's
objection to title, Seller shall have fifteen (15) days to remedy any such
objections or defects in order to convey good and marketable title and Seller
shall use its best efforts to do so in order to make title good and marketable.
However, Seller's best efforts do not require that it pay or satisfy any
involuntarily created or suffered liens that it disputes, but Purchaser is not
required to accept such involuntarily created or suffered liens. Seller shall be
required to pay or satisfy voluntarily created liens at closing. In the event
Seller is unable to cure said objections within said time period, Purchaser, by
providing written notice to Seller within seven (7) days after expiration of said
fifteen (15) day period, may accept title as it then is, waiving any objection; or
Purchaser may terminate the Agreement or Purchaser and Seller may extend
the Agreement by mutual written agreement of the parties hereto. A failure
by Purchaser to give such written notice of termination within the time period
provided herein shall be deemed an election by Purchaser to accept the
exceptions to title as shown in the title commitment.
4.013 Seller has furnished an existing survey -0f the Property to Purchaser.
On or before December 5, 2008, Seller shall provide an updated survey to
the Purchaser that is certified to both Collier County and to Stewart Title
Guaranty Company formerly known as Midwest Title Company. No
adjustments to the Purchase Price shall be made based upon any change to
the total acreage referenced in Exhibit "A," unless the difference in acreage
revealed by the survey exceeds 1 % of the overall acreage. If the survey
provided by Seller or obtained by Purchaser, as certified by a registered
Florida surveyor, shows: (a) an encroachment onto the property; or (b) that
an improvement located on the Property projects onto lands of others, or (c)
lack of legal access to a public roadway, the Purchaser shall notify the Seller
in writing of such encroachment, projection, or lack of legal access, [which
shall constitute objections title] and Seller shall have the option of curing said
encroachment or projection, or obtaining legal access to the Property from a
public roadway, within sixty (60) days of receipt of said written notice from
Purchaser. Purchaser shall have forty five (45) days after the effective date of
this Agreement to notify Seller of any such objections. Should Seller elect not
to or be unable to remove the encroachment, projection, or provide legal
access to the property within said sixty (60) day period, Purchaser, by
providing written notice to Seller within seven (7) days after expiration of said
sixty (60) day period, may accept the Property as it then is, waiving any
objection to the encroachment, or projection, or lack of legal access, or
Purchaser may terminate the Agreement. A failure by Purchaser to give such
written notice of termination within the time period provided herein shall be
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IuE
deemed an election by Purchaser to accept the Property with the
encroachment, or projection, or lack of legal access.
V. INSPECTION AND CONTINGENCIES
5.01 On or before December 30, 2008 ('Inspection Period ") Purchaser shall
determine through appropriate investigation that:
1. With the exception of the cattle dipping vat area and oil well area, the Property
is in compliance with all applicable State and Federal environmental laws and
the Property is free from any pollution or contamination.
2. The Property can be utilized for its intended use and purpose in the
Conservation Collier program.
5.02 If the foregoing conditions are not satisfied as provided for in Paragraph 5.01
then Purchaser may terminate this Agreement by written notice to the Seller prior
to December 30, 2008. Purchaser's failure to do so is a waiver of this termination
right. If Purchaser terminates this Agreement as a result of this provision then
Purchaser will deliver to Seller copies of all engineering, environmental, consulting
and soil reports it has obtained concerning the Property.
5.03 Purchaser and its agents, employees and servants shall, at their own risk
and expense, have the right to go upon the Property for the purpose of surveying
and conducting non - destructive site analyses, soil borings, and reasonably
necessary investigation. Purchaser shall, in performing such tests, use due
care. Seller shall be notified by Purchaser no less than twenty four (24) hours
prior to said inspection of the Property. Purchaser or Purchaser's agents shall
not conduct any inspection so as to cause damage to the Property, and
Purchaser shall restore the Property to its pre - inspection condition not later than
ten (10) days after any such damage occurs. This provision shall survive
termination of this Agreement.
VI SELLER RESPONSIBILITIES
6.01 Seller hereby agrees that it shall do the following:
6.011 This Paragraph has been intentionally deleted.
6.012 Within sixty (60) days after date of Closing, Seller shall, at its own cost
and expense, demolish and clear debris from all known structures on the
Property, except the lodge, caretaker house and pole bam on Property.
6.013 Within sixty (60) days after date of Closing, Seller shall, at its own cost
and expense, pump out, crush and fill all known septic tanks on the Property
in accordance with all applicable Collier County and State of Florida
requirements, except for those septic tanks serving the structures to be
retained on the Property.
6.014 Within sixty (60) days after date of Closing, Seller, at its expense shall
locate and place aboveground markers indicating the location of all remaining
known septic tanks, cesspools and water wells located on the Property.
6.015 Following the Closing, the Seller will continue the process in which
the Seller and the Purchaser have to date been engaged in order to evaluate,
and then remediate the contamination within an approximate 12 acre portion
of the Property located as shown on Exhibit F (the Cattle Vat Site) that was
the site of an old, but long ago discontinued, cattle dipping vat which contains
levels of concentration of arsenic above Florida Department of Environmental
Protection (FDEP) Cleanup Target Levels (CTLs). A Phase II evaluation has
been performed by HSA Environmental Consultants and Scientists, Inc.
(HSA) and a Site Assessment Report has been prepared by HSA. In addition,
the Seller and Purchaser have met with HSA and FDEP to discuss a program
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5/24/2011 Item 16.E.4.
11F 41
of remediation based on the HSA Site Assessment Report. Based on these
discussions, HSA is currently preparing a Remedial Action Plan (RAP) for
written approval by FDEP. The Seller will arrange and pay at its own cost
and expense for all actions as required by the RAP including but not limited to
the removal of the quantities of contaminated soil at levels of concentration
which require removal, its transportation to an acceptable disposal site and
the installation and maintenance of monitoring wells on the Cattle Vat Site for
a period of time as recommended in the RAP and approved by FDEP.
Purchaser shall accept FDEP approval standards as they relate to the RAP.
Once the monitoring shows the contamination plume is stable or shrinking
(pursuant to F.A.C. Ch 62 -780), the Seller will have a continuing obligation to
assist Purchaser and work with FDEP to establish and implement institutional
and engineering controls over the Cattle Vat Site that are provided for by
applicable regulations. Any required restrictive covenants that must be
imposed on the title to the Cattle Vat Site must be provided by the Purchaser
as it will then be the owner thereof. The cost and expense of the preparation
of the legal description for the cattle vat site, removal and disposal of
contaminated soil, consultant fees to HSA, permit and application fees to any
agency, installation and maintaining of monitoring wells and all necessary
equipment and the cost of implementing any engineering and institutional
controls will be paid for from the funds to be deposited and retained in escrow
in accordance with Paragraph 2.02.
6.016 Notify the operator of the existing oil wells located on the Property of its
responsibility to bear the cost of remediation from any spills or contamination
that may result from its operations and of the requirement to maintain, keep
in force and effect, and provide an ongoing Spill Prevention Control and
Countermeasures Program or protocol and to comply with all applicable laws
and regulations governing its operations.
6.017 The portion of Seller's sales proceeds from the closing of the subject
transaction that are to be retained pursuant to paragraph 2.02 will be held
and released to Seller following performance of the work in Paragraphs 6.012
6.013 and 6.015. The amount allocated to the work in 6.012 is $14,750; the
amount allocated to the work in 6.013 is $13,500 and the amount allocated to
the work in 6.015 is $360,000. As each item of work in Paragraphs 6.012
and 6.013 is completed, the amount of money retained for it shall be released
to the Seller as follows: With respect to Paragraphs 6.012 and 6.013, Seller
shall advise Purchaser and escrow agent in writing when the activities
outlined in said Paragraphs have been completed and Purchaser may inspect
the Property and contact appropriate agencies to verify same within ten (10)
business days of receipt of Seller's notification. If Purchaser does not object
with specificity in writing within said ten (10) day period, the escrow agent
shall release to the Seller the sum from escrow pertaining to the applicable
item. If Purchaser objects, Purchaser shall notify Seller in writing of its
specific objection within said ten (10) day time period and Seiler shall remedy
any specified defect, whereupon the applicable escrowed sum shall be
released to the Seller.
With respect to Paragraph 6.015 above, an independent third party
licensed professional shall be required to certify that said work has been
completed and escrow agent shall release the designated sum to the Seller. It is
agreed that HSA is an acceptable third party professional. If HSA's services are
terminated, then the Purchaser shall have the right to select and retain a substitute
third party professional at Sellers expense.
As the work under Paragraph 6.015 above is performed, percentage
progress payments of the sum held by the Purchaser pertaining to Paragraph
6.015 shall be made to Seller by the Purchaser so authorizing the escrow agent.
The amount and percentage will be determined based on certification by HSA.
Upon completion of the work, and at such time that HSA certifies that the
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5/24/2011 Item 16.E.4.
10E
remediation under the Plan has been completed, any remaining sums held by
Purchaser shall be disbursed to the Seller by the escrow agent.
The terms and provisions of this Section 6 shall survive closing.
VII. REMOVAL OF SOLID WASTE
7.01 No later than ten (10) days after Closing, Seller shall remove or cause to be
removed from the Property, at Seller's sole cost and expense, any and all personal
property and /or solid waste, trash, rubbish or any other unsightly or offensive
materials thereon, including, but not limited to, structures, any tanks and
Hazardous Materials in tanks, barrels and equipment, pipelines, or other
containers on the Property.
VIII. INSPECTION
8.01 Seller acknowledges that the Purchaser, or its authorized agents, shall have
the right to inspect the Property at any time prior to the Closing.
IX. POSSESSION
9.01 Subject to the reservation in paragraph 1.02, and subject to a Cattle Lease
entered into as allowed in paragraph 1.03, Purchaser shall be entitled to full
possession of the Property at Closing.
X. PRORATIONS
10.01 Ad valorem taxes next due and payable, after closing on the Property, shall
be prorated at Closing based upon the gross amount of 2008 taxes, and shall be
paid by Seller.
XI. TERMINATION AND REMEDIES
11.01 In addition to any other rights Purchaser may have to terminate this
Agreement, if Seller shall have failed to perform any of the covenants and /or
agreements contained herein which are to be performed by Seller, within thirty (30)
days after written notification of such failure, Purchaser may, at its option,
terminate this Agreement by giving written notice of termination to Seller.
Purchaser shall have the right to seek and enforce all rights and remedies
available at law or in equity to a contract vendee, including the right to seek
specific performance of this Agreement.
11.02 If the Purchaser has not terminated this Agreement pursuant to any of the
provisions authorizing such termination, and Purchaser fails to close the
transaction contemplated hereby or otherwise fails to perform any of the terms,
covenants and conditions of this Agreement as required on the part of Purchaser
to be performed, provided Seller is not in default, then as Seller's sole remedy,
Seller shall have the right to terminate and cancel this Agreement by giving written
notice thereof to Purchaser, whereupon One Hundred Thousand Dollars
($100,000.00) shall be paid to Seller as liquidated damages which shall be
Seller's sole and exclusive remedy, and neither party shall have any further
liability or obligation to the other except as set forth in paragraph 14.01, (Real
Estate Brokers), hereof. The parties acknowledge and agree that Seller's actual
damages in the event of Purchaser's default are uncertain in amount and difficult
to ascertain, and that said amount of liquidated damages was reasonably
determined by mutual agreement between the parties, and said sum was not
intended to be a penalty in nature.
11.03 The parties acknowledge that the remedies described herein and in the
other provisions of this Agreement provide mutually satisfactory and sufficient
remedies to each of the parties, and take into account the peculiar risks and
expenses of each of the parties.
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I0E
XII. SELLER'S AND PURCHASER'S REPRESENTATIONS AND WARRANTIES
12.01 Seller and Purchaser represent and warrant the following to each other:
12.011 Seller and Purchaser respectively, have full right and authority to
enter into and to execute this Agreement and to undertake all actions and to
perform all tasks required of each hereunder. Seller is not presently the
subject of a pending, threatened or contemplated bankruptcy proceeding.
12.012 Seller has full right, power, and authority to own and operate the
Property, and to execute, deliver, and perform its obligations under this
Agreement and the instruments executed in connection herewith, and to
consummate the transaction contemplated hereby. All necessary
authorizations and approvals have been obtained authorizing Seller and
Purchaser to execute and consummate the transaction contemplated hereby.
At Closing, certified copies of such approvals shall be delivered to Purchaser
and /or Seller, if necessary.
12.013 The warranties set forth in this Article XII shall be true on the date of
this Agreement and as of the date of Closing. Purchaser's acceptance of a
deed(s) to the said Property shall not be deemed to be full performance and
discharge of every agreement and obligation on the part of the Seller to be
performed pursuant to the provisions of this Agreement.
12.014 Seller represents to the best of its knowledge and belief that it has no
knowledge of any actions, suits, claims, proceedings, litigation or
investigations pending or threatened against Seller, at law, equity or in
arbitration before or by any federal, state, municipal or other governmental
instrumentality that relate to this agreement or any other property that could,
if continued, adversely affect Seller's ability to sell the Property to Purchaser
according to the terms of this Agreement.
12.015 No party or person other than Purchaser has any right or option to
acquire the Property or any portion thereof.
12.016 Until the date fixed for Closing, so long as this Agreement remains in
force and effect and with the exception of the proposed oil and gas Leases
for the existing oil wells that are currently being negotiated and to be entered
into by Seller, pursuant to the oil, gas, and mineral estate to be reserved by
the Seller within the portion of the Property described in Exhibit 'B ", Seller
shall not encumber or convey any portion of the Property or any rights
therein, nor enter into any agreements granting any person or entity any
rights with respect to the Property or any part thereof, without first obtaining
the written consent of Purchaser to such conveyance, encumbrance, or
agreement which consent may be withheld by Purchaser for any reason
whatsoever.
12.017 Seller represents to the best of its knowledge and belief that there are
no incinerators on the Property; all waste, if any, is discharged into septic
tanks; Seller represents that it has no knowledge that any pollutants are or
have been discharged from the Property, directly or indirectly into any body of
water. Seller represents that to the best of its knowledge and belief, except
for arsenic and chemicals known to have been used in the abandoned cattle
dipping vat on the Property, and waste materials or spills from any of the oil
wells, the Property has not been used for the production, handling, storage,
transportation, manufacture or disposal of hazardous or toxic substances or
wastes, as such terms are defined in applicable laws and regulations, or any
other activity that would have toxic results, and no such hazardous or toxic
substances are currently used in connection with the operation of the
Property, and there is no proceeding or inquiry by any authority with respect
thereto. Seller represents that it has no knowledge that there is ground water
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5/24/2011 Item 16.E.4.
IOE
contamination on the Property or potential of ground water contamination
from neighboring properties. Seller has no knowledge whether storage tanks
for gasoline or any other substances were located on the Property at any time
prior to Seller's ownership thereof. Seller represents that to its knowledge
none of the Property has been used as a sanitary landfill. This provision shall
survive the Closing.
12.018 Seller represents to the best of its knowledge and belief that it has no
knowledge that the Property and Seller's operations concerning the Property
are in violation of any applicable Federal, State or local statute, law or
regulation, or of any notice from any governmental body has been served
upon Seller claiming any violation of any law, ordinance, code or regulation or
requiring or calling attention to the need for any work, repairs, construction,
alterations or installation on or in connection with the Property in order to
comply with any laws, ordinances, codes or regulation with which Seiler has
not complied. This provision shall survive the Closing.
12.019 Seller represents to the best of its knowledge and belief except for the
Stewardship Easement Agreement referred to in paragraph 1.02 or as
contained on Exhibit "E" that there are no unrecorded restrictions, easements
or rights of way (other than existing zoning regulations) that restrict or affect
the use of the Property, and there are no maintenance, construction,
advertising, management, leasing, employment, service or other contracts
affecting the Property.
12.020 Seller represents to the best of its knowledge and belief that there
are no known suits, actions or arbitration, bond issuances or proposals
therefore, proposals for public improvement assessments, pay -back
agreements, paving agreements, road expansion or improvement
agreements, utility moratoriums, use moratoriums, improvement
moratoriums, administrative or other proceedings or governmental
investigations or requirements, formal or informal, existing or pending or
threatened which affects the Property or which adversely affects Seller's
ability to perform hereunder, nor is there any other charge or expense upon
or related to the Property which has not been disclosed to Purchaser in
writing prior to the effective date of this Agreement. This provision shall
survive the Closing.
12.021 Seller acknowledges and agrees that Purchaser is entering into this
Agreement based upon Seller's representations stated above and on the
understanding that Seller will not cause the zoning or physical condition of
the Property to change from its existing state on the effective date of this
Agreement up to and including the Date of Closing. Therefore, Seller agrees
not to enter into any contracts or agreements pertaining to or affecting the
Property other than those routinely entered into for the routine operation and
maintenance of the Property. Seller also agrees to notify Purchaser promptly
of any change in the facts contained in the foregoing representations and of
any notice or proposed change in the zoning, or any other action or notice,
that may be proposed or promulgated by any third parties or any
governmental authorities having jurisdiction of the development of the
property which may restrict or change any other condition of the Property.
12.022 Seller shall not less than 10 business days before Closing, deliver to
Purchaser a statement (hereinafter called the "Closing Representative
Statement ") reasserting the foregoing representations as of the Date of
Closing. The timely receipt of the Closing Representative Statement is a
condition precedent to Purchaser's obligation to close. If not provided then
Purchaser may terminate this Agreement, but only after first advising Seller in
writing that Purchaser has not timely received the Closing Representative
Statement and affording the Seller a period of ten (10) days in which to
provide it. The closing shall be extended accordingly if necessary.
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5/24/2011 Item 16.E.4.
10E.
12.023 Seller represents that it is not aware of any conditions on the Property
that would be in violation of, any federal, state, local or common law relating
to pollution or protection of the environment , including but not limited to, the
Comprehensive Environmental Response, Compensation, and Liability Act of
1980, 42 U.S.C. Section 9601, et seq., ( "CERCLA" or "Superfund "), which
was amended and upgraded by the Superfund Amendment and
Reauthorization Act of 1986 ( "SARA "), including any amendments or
successor in function to these acts or applicable Florida Statutes governing
hazardous or toxic waste. Purchaser acknowledges awareness of arsenic
and other chemicals in an old cattle dipping vat area and the presence of
petroleum spillage near the three oil wells. This provision and the rights of
Purchaser, hereunder, shall survive Closing and are not deemed satisfied by
conveyance of title. This provision shall survive the Closing.
12.024 Any loss and/or damage to the Property between the date of this
Agreement and the date of Closing shall be Seller's sole risk and expense.
XIII. NOTICES
13.01 Any notice, request, demand, instruction or other communication to be
given to either party hereunder shall be in writing, sent by facsimile with
automated confirmation of receipt, or by registered, or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to Purchaser: Alexandra Sulecki, Coordinator
Conservation Collier Land Acquisition Program
Collier County Facilities Department
3301 Tamiami Trail East
Naples, Florida 34112
With a copy to: Cindy M. Erb, Senior Property Acquisition Specialist
Collier County Real property Management
3301 Tamiami Trail East
Naples, Florida 34112
Telephone number: 239 - 252 -8991
Fax number: 239 - 252 -8876
If to Seller: Thomas Taylor, General Partner
Lake Trafford Ranch, LLLP
481 Carica Road
Naples, FL 34108
Telephone number: 239 - 254 -2000
Fax number: 239 - 254 -2098
If to Seller: Christopher L. Allen, General Partner
Lake Trafford Ranch, LLLP
555 Hickory Road
Naples, FL 34108
Telephone number: 239 -566 -1661
Fax number: 239 -254 -8825
With a Copy To: Richard C. Grant, Esq.
Grant, Fridkin, Pearson, Athan & Crown, P.A.
5551 Ridgewood Drive, Suite 501
Naples, FL 34108 -2719
Telephone number: 239 - 514 -1000
Fax No.: 239 - 514 -0377
13.02 The addressees and numbers for the purpose of this Article may be
changed by either party by giving written notice of such change to the other party
in the manner provided herein. For the purpose of changing such addresses or
addressees only, unless and until such written notice is received, the last
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5/24/2011 Item 16.E.4.
1UF
addressee and respective address stated herein shall be deemed to continue in
effect for all purposes.
XIV. REAL ESTATE BROKERS
14.01 Purchaser and Seller represent and warrant to each other that they have
not contacted a broker or salesman in connection with this transaction. Seller
hereby agrees to indemnify and hold Purchaser harmless from and against any
claims(s) of any other person(s) asserting a right to a commission in connection
with this transaction by virtue of dealing with the Seller. This provision shall
survive the Closing.
XV. MISCELLANEOUS
15.01 This Agreement may be executed in any number of counterparts which
together shall constitute the agreement of the parties.
15.02 This Agreement and the terms and provisions hereof shall be effective as of
the date this Agreement is executed by both parties and shall inure to the benefit
of and be binding upon the parties hereto and their respective heirs, executors,
personal representatives, successors, successor trustees, and assignees
whenever the context so requires or admits.
15.03 Any amendment to this Agreement shall not bind any of the parties hereof
unless such amendment is in writing and executed and dated by Purchaser and
Seller. Any amendment to this Agreement shall be binding upon Purchaser and
Seller as soon as it has been executed by both parties.
15.04 Captions and section headings contained in this Agreement are for
convenience and reference only; in no way do they define, describe, extend or
limit the scope or intent of this Agreement or any provisions hereof.
15.05 All terms and words used in this Agreement, regardless of the number and
gender in which used, shall be deemed to include any other gender or number as
the context or the use thereof may require.
15.06 No waiver of any provision of this Agreement shall be effective unless it is in
writing, signed by the party against whom it is asserted, and any waiver of any
provision of this Agreement shall be applicable only to the specific instance to
which it is related and shall not be deemed to be a continuing or future waiver as
to such provision or a waiver as to any other provision.
15.07 If any date specified in this Agreement falls on a Saturday, Sunday or legal
holiday, then the date to which such reference is made shall be extended to the
next succeeding business day.
15.08 Seller is aware of and understands that the preparation and presentation of
this Agreement in unexecuted form to the Seller is not an "offer' from Purchaser
and this Agreement is subject to acceptance and approval by the Board of County
Commissioners of Collier County, Florida, whereupon it will become a legally
binding contract.
15.09 If the Seller holds the Property in the form of a partnership, limited
partnership, corporation, trust or any form of representative capacity whatsoever
for others, Seller shall make and deliver at Closing a written public disclosure,
according to Chapter 286, Florida Statutes, under oath, of the name and address
of every person having a beneficial interest in the Property before the Property
held in such capacity is conveyed to Collier County. (If the corporation is
registered with the Federal Securities Exchange Commission or registered
pursuant to Chapter 517, Florida Statutes, whose stock is for sale to the general
public, it is hereby exempt from the provisions of Chapter 286, Florida Statutes.)
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5/24/2011 Item 16.E.4.
10E
15.10 This Agreement is governed and construed in accordance with the laws of
the State of Florida.
15.11 Purchaser acknowledges and accepts the presence of three existing oil
wells and appurtenant equipment located on the portion of the Property subject to
the reservation in paragraph 1.02. Such wells shall continue to remain pursuant to
such reservation,
15.12 As used herein the terms "date of this Agreement ", "effective date of this
Agreement", "date this Agreement is executed by Purchaser and Seller" or
similarly terms shall mean the date when the last of the parties has executed it
without changing anything executed previously by the other party as indicated by
the dates on the signature page of this Agreement.
15.13 Any litigation arising out of this Agreement shall be litigated in State Court in
Collier County, Florida of competent jurisdiction.
XVI. ENTIRE AGREEMENT
16.01 This Agreement and the exhibits attached hereto contain the entire
agreement between the parties, and no promise, representation, warranty or
covenant not included in this Agreement or any such referenced agreements has
been or is being relied upon by either party. No modification or amendment of this
Agreement shall be of any force or effect unless made in writing and executed and
dated by both Purchaser and Seller. Time is of the essence of this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed below.
Dated Project/Acquisition Approved by BCC:_ 1�.'1-0d%
AS TO PURCHASER:
DATEDJ 0z O
ATTEST:
DWIGHT E. BROCK, Clerk
s�
7r:��
=' �e ,u 21erk
:Attgst 45•'64' n I n s
$1prratwi bn "
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
M HENNING, C an
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r
AS TO SELLER:
DATED:
WITNESSES:
(Signature)
S . r %-% C Bee
(Print Name)
(Signature)
`Q.�-Ci :Fr--e
(Print Name)
`1
(Signature)
Z c" 4r cl �: car n. •-.�
(Print Name)
(Signature}
(Print Name)
Approved as to form and
legal sufficiency:
Jenn er A. Belp t
Assistant County Atforney
5/24/2011 Item 16.E.4.
10E I
LAKE TRAFFORD RANCH, LLLP,
a Florida limited liability limited partnership
BY: _
THOMAS M. TAYLOR, as General Partner
LAKE TRAFFORD RANCH, LLLP,
a Florida limited liability limited partnership
BY:
CHRISTOPHER 4 ALLEN, as General Partner
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5/24/2011 Item 16.E.4.
1OF
Exhibit "A"
(Legal Description)
Property Tax Identification Number: 00052360002
A parcel of land lying in the East Half (E%) of the East Half (E %:) of the Southwest
Quarter (SW %) of the Southeast Quarter (SE' /) of Section 22, Township 46 South,
Range 28 East, Collier County, Florida, being more particularly described as follows:
Commence at the Southeast comer of Section 22, Township 46 South,
Range 28 East, Collier County, Florida; thence run S 88 05747" W, along
the south line of the Southeast Quarter (SE %) of said Section 22 for a
distance of 1320.38 feet to the Point of Beginning of the parcel of land
herein described; thence continue S 88 "57'47" W, along the south line of
the Southeast Quarter (SEY.) of said Section 22, for a distance of 330.09
feet; thence run N 00 °31'18" W for a distance of 1342.51 feet; thence run
N 88 °58'31" E for a distance of 330.12 feet; thence run S 00 031'14" E, for
a distance of 1342.44 feet to the Point of Beginning; containing 10.17
acres, more or less.
AND
Property Tax Identification Number: 00052440003
A parcel of land lying in the Southeast Quarter (SE %) of the Southwest Quarter (SW' /.)
and the West Half (WI/2) of the Southwest Quarter (SW%) of the Southeast Quarter
(SE %) of Section 22, Township 46 South, Range 28 East, Collier County, Florida, being
more particularly described as follows:
Commence at the Southeast comer of Section 22, Township 46 South,
Range 28 East, Collier County, Florida; thence run S 88 °57'47" W, along
the south line of the Southeast Quarter (SE %) of said Section 22 for a
distance of 1980.56 to the Point of Beginning of the parcel of land herein
described; thence continue S 88 °57'47" W, along the south line of the
Southeast Quarter (SE %) of said Section 22, for a distance of 660.19 feet
to the South Quarter comer of said Section 22; thence run S 88 °59'47" W
along the south line of the southwest quarter of said Section 22, for a
distance of 1321.80 feet; thence run N 00 038'44" W for a distance of
1342.51 feet; thence run N 88 °59'17" E, for a distance of 1324.63 feet;
thence run N 88 °58'31" E, for a distance of 660.24 feet; thence run S
00 031'22" E for a distance of 1342.58 feet to the Point of Beginning;
containing 61.13 acres, more or less.
AND
Property Tax Identification Number: 00052680009
The Southeast Quarter (SE %,) of the Southwest Quarter (SW %.) of Section 26,
Township 46 South, Range 28 East, Collier County, Florida; containing 40.38 acres
more or less.
r_ s
Property Tax Identification Number: 00053000002
All of Section 28, Township 46 South, Range 28 East, Collier County, Florida;
containing 645.47 acres more or less.
AND
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5/24/2011 Item 16.E.4.
10E I
Property Tax Identification Number: 00053920001
The Northwest Quarter (NW %) of the Northeast Quarter (NE %) of the Northwest
Quarter (NW %) of Section 35, Township 46 South, Range 28 East, Collier County,
Florida; containing 10.09 acres more or less.
AND
Property Tax Identification Number: 00052640007
A parcel of land located in a portion of Section 26, Township 46 South, Range 28 East,
Collier County, Florida, being more particularly described as follows:
The West Half (W %:) of Section 26, Township 46 South, Range 28 East,
Collier County, Florida, less the North 1451.35 feet thereof and less the
Southeast Quarter (SE %.) of the Southwest Quarter (SW %) of said
Section 26, and less that parcel of land, as described and recorded in
Official Records Book 2585 at Page 2735 through 2737, owned by South
Florida Water Management District with Tax Folio Number 00052640007;
containing 185.91 acres, more or less.
AND
Property Tax Identification Number: 00052960004
All of Section 27, Township 46 South, Range 28 East, Collier County, Florida;
containing 643.59 acres more or less.
AND
Property Tax Identification Number: 00053200006
All of Section 33, Township 46 South, Range 28 East, Collier County, Florida;
containing 706.33 acres more or less.
AND
Property Tax Identification Numbers: 00053840000 & 00054040003
The East Half (E%) of the East Half (E %2) of the Northwest Quarter (NW' /.); and the
Northeast Quarter (NE' /.), less the East 30 feet and the Northerly 30 feet for public road
right -of -way per dedication thereof recorded in Plat Book 12, Page 67 (known as
Pepper Road), Section 35, Township 46 South, Range 28 East, Public Records of
Collier County, Florida, less 2.29 acres in the Northeast Quarter (NE %) described in
Deed recorded in Official Records Book 1834, Page 216; also less the real property
described in Quit Claim Deed recorded in Official Records Book 49, Page 4; and in
Official Records Book 280, Page 480; and in Official Records Book 282, Page 283; and
in Official Records Book 289, Page 910; all of the Public Records of Collier County,
Florida;
AND
The Southwest Quarter (SW %.) of the Northwest Quarter (NW %a); and the West Half
(W%) of the Southeast Quarter (SE %.) of the Northwest Quarter (NW' /<); and the
Southwest Quarter (SW' /.) of the Northeast Quarter (NE' /.) of the Northwest Quarter
(NW%); and the South Half (S %z) of the Northwest Quarter (NW %) of the Northwest
Quarter (NW %); and the Northwest Quarter (NW %) of the Northwest Quarter (NW%) of
the Northwest Quarter (NW' /.); and the West Half (W %Z) of the Northeast Quarter (NE' /.)
of the Northwest Quarter (NW %) of the Northwest Quarter (NW %) of Section 35,
Township 46 South, Range 28 East, Collier County, Florida; containing 208.83 acres,
more or less.
The fore mentioned parcels equates to 2,511.90 acres, more or less.
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