Loading...
Agenda 10/26/2010 Item #16E 1Agenda Item No. 16E1 October 26, 2010 Page 1 of 21 EXECUTIVE SUMMARY Recommendation to approve an Agreement for Sale and Purchase with Richard F. Berman as to 1/3 interest and Raymond and Terry Bennett also known as Terri Bennett, husband and wife, as to 1/3 interest and Frank J. Celsnak and Marlene J. Celsnak Trustees U /D/T dated 27th December 1991 as to 1/3 interest for 2.73 acres under the Conservation Collier Land Acquisition Program at a cost not to exceed $28,000. OBJECTIVE: To purchase a 2.73 acre parcel within the Winchester Head Multi - Parcel Project from Richard F. Berman as to 1/3 interest and Raymond and Terry Bennett also known as Terri Bennett, husband and wife, as to 1/3 interest and Frank J. Celsnak and Marlene J. Celsnak Trustees U /D/T dated 27th December 1991 as to 1/3 interest (Sellers). CONSIDERATIONS: On January 25, 2005, Agenda Item 10D, the Board approved a Conservation Collier Land Acquisition Advisory Committee ( CCLAAC) recommended Cycle II - Active Acquisition List, (AAL) with changes, and directed staff to actively pursue acquisition of the properties under the Conservation Collier Program. A multi - parcel project included on the Cycle II — AAL was a portion of Unit 65 in Golden Gate Estates (Winchester Head Multi- parcel Project). Staff has actively pursued acquiring parcels within Unit 65. However, on September 13, 2005, Agenda Item 16 A 34, the Board accepted CCLAAC's recommendation to, due to rising property costs, discontinue buying properties for the Winchester Head Multi- parcel Project for 90 days. On February 14, 2006, Agenda Item 10A, the Board approved placing the Winchester Head Multi- parcel Project on the "B" list of the Cycle III — AAL, and on January 23, 2007, Agenda Item 10A, the Board approved the Cycle IV — AAL, once again placing the Multi - parcel Project on the "B" list. On May 22, 2007, Agenda Item 10F, the Board approved activating the Winchester Head Multi- parcel Project, with conditions, and it was placed on the "A" list on the current AAL. The Winchester Head Multi- parcel Project consists of 115 parcels and a total of 158.67 acres. To date, Conservation Collier has acquired 46 parcels for a total of 64.19 acres, and the Collier Soil and Water Conservation District has acquired 2 parcels totaling 2.28 acres. Staff contracted with two independent, state - certified, general real estate appraisal firms to appraise all parcels within the Winchester Head Multi- parcel Project. The appraisers based their analyses on comparable sales from wetland, not upland parcels, preferably within the Winchester Head Multi- parcel Project boundaries. The appraisals dated October 2009, provided an averaged appraised value for all parcels within the Winchester Head Multi- parcel Project at $10,000 an acre. On July 12, 2010, the CCLAAC recommended extending offers to owners at the October 2009 appraisal values. The cost to obtain new appraisals is $8,000. Based on the slight decline in land values and the number of interested property owners last year, the CCLAAC determined that the most cost effective approach is to utilize the 2009 appraisal values. The Sellers' property contains a total of 2.73 acres and is located within the Winchester Head Multi- parcel Project. The land cost for the 2.73 acre parcel is $27,300. The Property Appraiser's 2010 Tax Roll assessed value for this property is $12,613. Agenda Item No. 16E1 October 26, 2010 Page 2 of 21 The attached Agreement provides that should the County elect not to close this transaction for any reason, except for default by the Sellers, the County will pay the Sellers $136.50 in liquidated damages. The CCLAAC approved this transaction on October 11, 2010 and voted to recommend Board approval and execution of the attached Agreement. Pursuant to Ordinance 2007 -65, Section 13(8), a Project Design Report for the property is provided herewith. FISCAL IMPACT: The total cost of acquisition will not exceed $28,000 ($27,300 for the property and approximately $700 for the title commitment, title policy, and recording of documents). The funds will be withdrawn from the Conservation Collier Trust Fund (172). As of October 11, 2010, property costs for Conservation Collier properties, including this property and those under contract, total $104,144,868.02. Estimated costs of maintenance in perpetuity have been considered by the CCLAAC and have been incorporated into the Conservation Collier Long Term Financial Management Plan. GROWTH MANAGEMENT IMPACT: Fee simple acquisition of conservation lands is consistent with and supports Policy 1.3.1(e) in the Conservation and Coastal Management Element of the Collier County Growth Management Plan. LEGAL CONSIDERATIONS: This item has been reviewed and approved by the County Attorney's Office and is legally sufficient. - JBW RECOMMENDATION: Staff is recommending that the Board: 1) Approves the attached Agreement and accepts the Warranty Deed once it has been received and approved by the County Attorney's Office; 2) Authorizes the Chairman to execute the Agreement and any and all other County Attorney's Office approved documents related to this transaction; 3) Authorizes the County Manager or his designee to prepare related vouchers and Warrants for payment; and 4) Directs the County Manager or his designee to proceed to acquire this parcel, to follow all appropriate closing procedures, to record the deed and any and all necessary documents to obtain clear title to this parcel, and to take all reasonable steps necessary to ensure performance under the Agreement. PREPARED BY: Cindy M. Erb, SR/WA, Senior Property Acquisition Specialist, Real Property Management, Department of Facilities Management Agenda Item No. 16E1 October 26, 2010 Page 3 of 21 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number. 16E1 Item Summary: Recommendation to approve an Agreement for Sale and Purchase with Richard F. Berman as to 1/3 interest and Raymond and Terry Bennett also known as Terri Bennett, husband and wife, as to 1/3 interest and Frank J. Celsnak and Marlene J. Celsnak Trustees U /D/T dated December 27, 1991 as to 1/3 interest for 2.73 acres under the Conservation Collier Land Acquisition Program at a cost not to exceed $28,000. Meeting Date: 10/26/2010 9:00:00 AM Prepared By Cindy M. Erb Property Acquisition Specialist, Senior Date Administrative Services Division Facilities Management 10/1112010 11:27:10 AM Approved By Skip Camp, C.F.M. Director - Facilities Management Date Administrative Services Division Facilities Management 10/11/2010 12:32 PM Approved By Melissa Hennig Environmental Specialist, Principal Date Administrative Services Division Facilities Management 10/11/2010 3:50 PM Approved By Alexandra J. Sulecki Environmental Specialist, Senior Date Administrative Services Division Facilities Management 10/1212010 8:55 AM Approved By Jennifer White Assistant County Attorney Date County Attorney County Attorney 10/12/2010 10:07 AM Approved By Manager - Property Acquisition & Const Toni A. Mott M Date Administrative Services Division Facilities Management 1011212010 10:30 AM Approved By Len Golden Price Administrator- Administrative Services Date Administrative Services Division Administrative Services Division 10112/2010 9:12 PM Approved By OMB Coordinator Date County Manager's Office Office of Management & Budget Agenda Item No. 16E1 October 26, 2010 Page 4 of 21 10/14/2010 12:13 PM Approved By Therese Stanley Manager - Operations Support - Trans Date Office of Management & Office of Management &Budget 10!1512010 2:13 PM Budget Approved By Mark Isackson Management/Budget Analyst, Senior Date Office of Management & Office of Management 8 Budget 10/1612010 3:20 PM Budget Approved By Jeff Klatzkow County Attorney Date 10/18/2010 10 :38 AM Agenda Item No. 16E1 October 26, 2010 Page 5 of 21 Conservation Collier Land Acquisition Program Project Design Report Date: October 11, 2010 Conservation Collier. Winchester Head 0—INE i Berman/Bennett/Celsnak — 2.73 ac TE c-toet AcquW&d Adkl Prtek OwnW trY CSWCO YercMfbrNn.0.0 4-' ClAtIr govilet 486 Property Owner: Richard F. Berman, Raymond and Terri Bennett, Frank J. Celsnak, Trustee, Marlene J. Celsnak, Trustee Folio(s): 39957960002 Location: WEST 180FT OF TRACT 66, GOLDEN GATE EST UNIT 65 Size: 2.73 acres Appraisal /Offer Amount: $27,300 History of Project: Selected for Approved Project Re- approved Purchase Offer the "A" for halted for purchase offer Accepted category, #1 purchase by BCC by BCC - made to priority, on by BCC conditionally owner the Active Acquisition List by CCLAAC 12/15/04 1 1/25/05 9/12/05 5/22/07 8/16/10 8/16/10 Purpose of Project: Conservation Collier 1 Agenda Item No. 16E1 October 26, 2010 Page 6 of 21 Program Oualifications: The Winchester Head multi - parcel project, which includes the Berman- Bennett- Celsnak 2.73 -acre parcel, is located within an undeveloped depressional cypress head and marsh wetland located in NGGE in Units 62 and 65. Using aerial photographs, elevation data, soil maps and public input, a total of 115 parcels (158.67 acres) were identified as being important for acquisition. The entire site is within North Golden Gate Estates, identified within the Conservation Collier Ordinance (Ord. No. 2007 -65) as a target protection area. One important reason for the nomination of Winchester Head is that this area functions to provide floodplain storage for surrounding home sites during high rainy season. In fact, these types of depressional storage areas were included in the water management models for the Golden Gate canal system done by the Big Cypress Basin, South Florida Water Management District and are a component of flood control for the area. At this time, Conservation Collier owns 64.19 acres out of a total of 158.67 acres, or 40% of the project area. Other criteria that would be satisfied by a purchase here include protection of surface and ground water resources, protection of wetland dependent species habitat, good potential for restoration and low estimated management costs. Listed plant species were observed, while a listed wildlife species (Florida black bear) has been documented at the edges of the property. During a November 2009 site visit, it was noted that there was standing water within Winchester Head, that many birds are using the area, and that the wetland areas (except those directly adjoining roadways) appear to be nearly free of invasive exotic plant life, indicating good ecological value. Additionally, three different public roads, one of which is paved, access the site and allow the property to be readily viewed. The mature cypress and seasonally changing marsh enhance the aesthetic setting of Collier County. Proiected Management Activities: Active management of this project is not feasible until a significant contiguous area can be acquired. Since Winchester Head is relatively free of exotic plants, minimal control efforts consisting of herbicide applications on exotics at the edges of owned properties may be done until a larger area is acquired. Because of the wetland nature of the site, trails are not recommended. A raised boardwalk would be the best public access opportunity, however, this is not proposed until sometime well into the future of the project when more parcels are acquired. Nature photography and bird watching are two activities that can occur at present. After consideration of risks and liability, it may be possible to allow school children to visit specific parcels as part of an educational program about wetlands. Currently, the two roads (37th and 39th Streets NE) provide access but the only parking is the road right -of -way. Currently, a visitor parking area is not necessary but could be constructed in the future if a nearby upland lot were acquired. An educational kiosk could be placed along one of the roads through the project. It could contain information on wetlands and on the preservation of the area. Signs can be placed at boundaries along 37th and 390h St. NE. Minimal management activities, like trash removal can be accomplished using both contracted and volunteer labor. 2 Agenda Item No. 16E1 October 26, 2010 CONSERVATION COLLIER Page 7 of 21 TAX IDENTIFICATION NUMBER: 39957960002 AGREEMENT FOR SALE AND PURCHASE THIS AGREEMENT is made and entered into by and between RICHARD F. BERMAN AS TO 113 INTEREST AND RAYMOND AND TERRI BENNETT AKA TERRY BENNETT, HUSBAND AND WIFE, AS TO 113 INTEREST AND FRANK J. CELSNAK AND MARLENE J. CELSNAK TRUSTEES U /DPT DATED 27TH DECEMBER 1991 AS TO 113 INTEREST, whose address is 611 1St Street SW, Naples, FL 34117(hereinafter referred to as "Seller "), and COLLIER COUNTY, a political subdivision of the State of Florida, its successors and assigns, whose address is 3301 Tamiami Trail East, Naples, FL 34112, (hereinafter referred to 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 the Property, subject to the conditions and other agreements hereinafter set forth, and Seller is agreeable to such sale and to such conditions and agreements. 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 ". II. PAYMENT OF PURCHASE PRICE 2.01 The purchase price (the "Purchase Price ") for the Property shall be Twenty Seven Thousand Three Hundred Dollars and 001100 dollars ($27,300.00), (U.S. Currency) payable at time of closing. III. CLOSING 3.01 The Closing (THE "CLOSING DATE ", "DATE OF CLOSING ", OR "CLOSING ") of the transaction shall be held on or before one hundred and twenty (120) days following execution of this Agreement by the Purchaser, unless extended by mutual written agreement of the parties hereto. The Manager of the Real Property Management or designee is authorized to enter into such mutual written agreements on behalf of the County for extensions of up to an additional 60 W 180' of Tract 66, GGE, Unit 65 CONSERVATION COLLIER TAX IDENTIFICATION NUMBER: 39957960002 Agenda Item No. 16E1 October 26, 2010 Page 8 of 21 days without further approval by the Board of County Commissioners. 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: 3.011 Seller shall convey a marketable title free of any liens, encumbrances, exceptions, or qualifications. Marketable title shall be determined according to applicable We standards adopted by the Florida Bar and in accordance with law. At the Closing, the Seller shall cause to be delivered to the Purchaser the items specified herein and the following documents and instruments duly executed and acknowledged, in recordable form: 3.0111 Warranty Deed in favor of Purchaser conveying title to the Property, free and clear of all liens and encumbrances other than: (a) The lien for current taxes and assessments. (b) Such other easements, restrictions or conditions of record. 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 A wire transfer or negotiable instrument in an amount equal to the Purchase Price. No funds shall be disbursed to Seller until the Title Company verifies 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 Section 4.011 thereto, and the Title Company is irrevocably committed to pay the Purchase Price to Seller and to issue the Owner's title policy to Purchaser in accordance with the commitment immediately after the recording of the deed. 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, in accordance with Chapter 201.01, W 180' of Tract 66, GGE, Unit 65 CONSERVATION COLLIER TAX IDENTIFICATION NUMBER: 39957960002 Agenda Item No. 16E1 October 26, 2010 Page 9 of 21 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 Section 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. Real Properly 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. IV. REQUIREMENTS AND CONDITIONS 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 Within fifteen (15) days after the date hereof, Purchaser shall obtain as evidence of title an ALTA Commitment for an Owner's Title Insurance Policy (ALTA Form B -1974) covering the Property, together with hard copies of all exceptions shown thereon. Purchaser shall have thirty (30) days, following receipt of the title insurance commitment, to notify Seller in writing of any objection to title other than liens evidencing monetary obligations, if any, which obligations shall be paid at closing. If the title commitment contains exceptions that make the title unmarketable, Purchaser shall deliver to the Seller written notice of its intention to waive the applicable contingencies or to terminate this Agreement. 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 thirty (30) days to remedy any defects in order to convey good and marketable title, except for liens or monetary obligations which will be satisfied at Closing. Seller, at its sole expense, shall use its best efforts to make such title good and marketable. 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 thirty (30) day period, may accept title as it then is, waiving any objection; 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 deemed an election by Purchaser to accept the exceptions to title as shown in the title commitment. 4.013 Seller agrees to furnish any existing surveys of the Property in Seller's possession to Purchaser within 10 (ten) days of the effective date of this Agreement. Purchaser shall have the option, at its own expense, to obtain a current survey of the Property prepared by a surveyor licensed by the State of W 180' of Tract 66, GGE, Unit 65 3 CONSERVATION COLLIER TAX IDENTIFICATION NUMBER: 39957960002 Agenda Item No. 16E1 October 26, 2010 Page 10 of 21 Florida. 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 survey exceeds 5% 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, 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 ninety (90) days from 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 deemed an election by Purchaser to accept the Property with the encroachment, or projection, or lack of legal access. V. INSPECTION PERIOD 5.01 Purchaser shall have one hundred and twenty (120) days from the date of this Agreement, ( "Inspection Period "), to determine through appropriate investigation that: 1. Soil tests and engineering studies indicate that the Property can be developed without any abnormal demucking, soil stabilization or foundations. 2. There are no abnormal drainage or environmental requirements to the development of the Property. 3. The Property is in compliance with all applicable State and Federal environmental laws and the Property is free from any pollution or contamination. 4. The Property can be utilized for its intended use and purpose in the Conservation Collier program. 5.02 If Purchaser is not satisfied, for any reason whatsoever, with the results of any investigation, Purchaser shall deliver to Seiler prior to the expiration of the Inspection Period, written notice of its intention to waive the applicable contingencies or to terminate this Agreement. If Purchaser fails to notify the Seller in writing of its specific objections as provided herein within the Inspection Period, it shall be deemed that the Purchaser is satisfied with the results of its investigations and the contingencies of this Article V shall be deemed waived. In the event Purchaser elects to terminate this Agreement because of the right of inspection, Purchaser shall deliver to Seller copies of all engineering reports and W 180' of Tract 66, GGE, Unit 65 4 CONSERVATION COLLIER TAX IDENTIFICATION NUMBER: 39957960002 Agenda Item No. 16111 October 26, 2010 Page 11 of 21 environmental and soil testing results commissioned by Purchaser with respect to 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 site analyses, soil borings and all other necessary investigation. Purchaser shall, in performing such tests, use due care and shall indemnify Seller on account of any loss or damages occasioned thereby and against any claim made against Seller as a result of Purchaser's entry. Seller shall be notified by Purchaser no less than twenty -four (24) hours prior to said inspection of the Property. VI. INSPECTION 6.01 Seller acknowledges that the Purchaser, or its authorized agents, shall have the right to inspect the Property at any time prior to the Closing. VII. POSSESSION 7.01 Purchaser shall be entitled to full possession of the Property at Closing. VIII. PRORATIONS 8.01 Ad valorem taxes next due and payable, after closing on the Property, shall be prorated at Closing based upon the gross amount of 2009 taxes, and shall be paid by Seller. IX. TERMINATION AND REMEDIES 9.01 If Seller shall have failed to perform any of the covenants and /or agreements contained herein which are to be performed by Seller, within ten (10) days of 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. 9.02 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 -half percent 112% of the purchase price 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 12.01, (Real Estate Brokers), hereof. The parties acknowledge and agree that Seller's actual damages in the event of W 180' of Tract 66, GGE, Unit 65 5 CONSERVATION COLLIER TAX IDENTIFICATION NUMBER: 39957960002 Agenda Item No. 16E1 October 26, 2010 Page 12 of 21 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. 9.03 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. X. SELLER'S AND PURCHASER'S REPRESENTATIONS AND WARRANTIES 10.01 Seller and Purchaser represent and warrant the following: 10.011 Seller and Purchaser 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. 10.012 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. 10.013 The warranties set forth in this paragraph shall be true on the date of this Agreement and as of the date of Closing. Purchaser's acceptance of a deed 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. 10.014 Seller represents 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. 10.015 No party or person other than Purchaser has any right or option to acquire the Property or any portion thereof. 10.016 Until the date fixed for Closing, so long as this Agreement remains in force and effect, 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, W 180' of Tract 66, GGE, Unit 66 6 CONSERVATION COLLIER TAX IDENTIFICATION NUMBER: 39957960002 Agenda Item No. 16E1 October 26, 2010 Page 13 of 21 encumbrance, or agreement which consent may be withheld by Purchaser for any reason whatsoever. 10.017 Seller represents that there are no incinerators, septic tanks or cesspools on the Property; all waste, if any, is discharged into a public sanitary sewer system; Seller represents that they have (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 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 they have (it has) no knowledge that there is ground water contamination on the Property or potential of ground water contamination from neighboring properties. Seller represents no storage tanks for gasoline or any other substances are or were located on the Property at any time during or prior to Seller's ownership thereof. Seller represents none of the Property has been used as a sanitary landfill. 10.018 Seller 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 Seller has not complied. 10.019 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. 10.020 Seller has no knowledge that there are any suits, actions or arbitration, bond issuances or proposals therefor, 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. 10.021 Seller acknowledges and agrees that Purchaser is entering into this Agreement based upon Seller's representations stated above and on the W 180' of Tract 66, GGE, Unit 65 CONSERVATION COLLIER TAX IDENTIFICATION NUMBER: 39957960002 Agenda Item No. 16E1 October 26, 2010 Page 14 of 21 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 and not to do any act or omit to perform any act which would change the zoning or physical condition of the Property or the governmental ordinances or laws governing same. 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. 10.022 At the Closing, Seller shall deliver to Purchaser a statement (hereinafter called the Closing Representative Statement ") reasserting the foregoing representations as of the Date of Closing, which provisions shall survive the Closing. 10.023 Seller represents, warrants and agrees to indemnify, reimburse, defend and hold Purchaser harmless from any and all costs (including attorney's fees) asserted against, imposed on or incurred by Purchaser, directly or indirectly, pursuant to or in connection with the application of any federal, state, local or common law relating to pollution or protection of the environment which shall be in accordance with, 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. This provision and the rights of Purchaser, hereunder, shall survive Closing and are not deemed satisfied by conveyance of title. 10.024 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. XI. NOTICES 11.01 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 — Building W Naples, Florida 34112 W 180' of Tract 66, GGE, Unit 65 CONSERVATION COLLIER TAX IDENTIFICATION NUMBER: 39957960002 Agenda Item No. 16E1 October 26, 2010 Page 15 of 21 With a copy to: Cindy M. Erb, SR/WA, Senior Property Acquisition Specialist Collier County Real Property Management 3301 Tamiami Trail East — Building W Naples, Florida 34112 Telephone number: 239 -252 -8991 Fax number: 239 - 252 -8876 If to Seller: Richard F. Berman 611 1 st Street SW Naples, FL 34117 -5108 Telephone number: 239 -352 -2376 Fax number: 239 - 304 -5905 If to Seller: Raymond & Terri Bennett 5330 SW 195th Terrace Fort Lauderdale, FL 33332 -1243 Telephone number: 954 - 680 -2774 Fax number: 954 - 765 -4564 If to Seller: Frank J. & Marlene J. Celsnak, Tr. 455 W, Oakhampton Dr. Eagle, ID, 83616 Telephone number: 208 -939 -6626 Fax number: 208- 939 -1520 11.02 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 addressee and respective address stated herein shall be deemed to continue in effect for all purposes. XII. REAL ESTATE BROKERS 12.01 Any and all brokerage commissions or fees shall be the sole responsibility of the Seiler. Seller shall indemnify Purchaser and hold Purchaser harmless from and against any claim or liability for commission or fees to any broker or any other person or party claiming to have been engaged by Seller as a real estate broker, salesman or representative, in connection with this Agreement. Seller agrees to pay any and all commissions or fees at closing pursuant to the terms of a separate agreement, if any. XIII. MISCELLANEOUS 13.01 This Agreement may be executed in any manner of counterparts which together shall constitute the agreement of the parties. W 180' of Tract 66, GGE, Unit 65 CONSERVATION COLLIER TAX IDENTIFICATION NUMBER: 39957960002 Agenda Item No. 16E1 October 26, 2010 Page 16 of 21 13.02 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 trustee, and assignees whenever the context so requires or admits. 13.03 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. 13.04 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. 13.05 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. 13.06 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. 13.07 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. 13.08 Seller is aware of and understands that the "offer" to purchase represented by this Agreement is subject to acceptance and approval by the Board of County Commissioners of Collier County, Florida. 13.09 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 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 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.) 13.10 This Agreement is governed and construed in accordance with the laws of the State of Florida. W 180' of Tract 66, GGE, Unit 65 10 CONSERVATION COLLIER TAX IDENTIFICATION NUMBER: 39957960002 XIV. ENTIRE AGREEMENT Agenda Item No. 16E1 October 26, 2010 Page 17 of 21 14.01 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: AS TO PURCHASER: DATED: ATTEST: DWIGHT E. BROCK, Clerk , Deputy Clerk Approved as to form and legal sufficiency: 5 Jennifer :V White Assistant County Attorney W 180' of Tract 66, GGE, Unit 65 11 BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA FRED W. COYLE, Chairman CONSERVATION COLLIER TAX IDENTIFICATION NUMBER: 39957960002 AS TO SELLER: DATED: C WITNESSES: ; �a (Signature) (Printed Na e) (Signature)' (Printed Name) W 180' of Tract 66, GGE, Unit 65 12 Agenda Item No. 16111 October 26, 2010 Page 18 of 21 RICHARD F. BERMAN CONSERVATION COLLIER TAX IDENTIFICATION NUMBER: 39957960002 AS TO SELLER: DATED: O$- 2-- t o WITNESSES: (Signature) (Printed Name) _rte iII ►.a,. N ► . - (Printed Name) WITNESSES: (Signature) (Printed Name) (Sig re) (Printed Name) W 180' of Tract 66, GGE, Unit 65 13 Agenda Item No. 16E1 October 26, 2010 Page 19 of 21 Line i1 TERRI BENNE KA TERRY BENNETT CONSERVATION COLLIER TAX IDENTIFICATION NUMBER: 39937960002 AS TO SELLER: DATED: v/ 2 5 l /o WITNESSES: ign ure) _5' i,,.j �.yt � jam., :,i Yt e-7 (Printed Name) (Si ature} (Printed Name) WITNESSES: {$ig ture) (Printed Name) 7> (Printed �i at (Printed Name) W 180' of Tract 66, GGE, Unit 65 14 Agenda Item No. 16E1 October 26, 2010 Page 20 of 21 FRANK J. ALSNAK, TRUSTEE OF THE FRANK J. CELSNAK & MARLENE J. CELSNAK TRUST UNDER AGREEMENT DATED DECEMBER 27, 1991 MARLENE J. CELS USTEE OF THE FRANK J. CELSNAK & MARLENE J. CELSNAK TRUST UNDER AGREEMENT DATED DECEMBER 27, 1991 Approved as to form & iegai Sufficient., Assistant County Attnr :zee CONSERVATION COLLIER TAX IDENTIFICATION NUMBER: 39957960402 EXHIBIT "A" LEGAL DESCRIPTION: Agenda Item No. 16E1 October 26, 2010 Page 21 of 21 THE WEST 180 FEET OF TRACT 66, GOLDEN GATE ESTATES, UNIT NO. 65, ACCORDING TO PLAT THEREOF AS RECORDED IN PLAT BOOK 5, PAGE 88 OF THE PUBLIC RECORDS OF COLLIER COUNTY, FLORIDA. PROPERTY IDENTIFICATION NUMBER: 39957960002 2.73 acres W 180' of Tract 66, GGE, Unit 65 15