Backup Documents 01/12/2010 Item #16B3
ORIGINAL DOCUMENTS CHECKLIST & ROUTING SLIP
TO ACCOMPANY ALL ORIGINAL DOCUMENTS SENT TO
THE BOARD OF COUNTY COMMISSIONERS OFFICE FOR SIGNATURE
1683
Print on pink paper. Attach to original document. Original documents should be hillld delivered to the Board Office. The completed routing slip and original
documents are to be forwarded to the Board Office only after the Board has takt:/J tlction on the item.)
ROUTING SLIP
Complete routing lines # I through #4 as appropriate for additional signatures, dates, and/or information needed. If the document is already complete with the
exee tion of the Chairman '5 si nature, draw a line throu h routin) lines # 1 throu' #4, com lete the checklist, and forward to Ian Mitchell (line #5
Route to Addressee(s) Office Initials Date
(List in routin order)
I.
2.
3.
4.
5. Ian Mitchell, BCC Supervisor
Board of County Commissioners
6. Minutes and Records'
Clerk of Court's Office
1{13 10
'Please scan under LASIP (Main Canal E-W) Project No. 51101 in the BMR Real Properly Folder. Thank you
PRIMARY CONTACT INFORMATION
(The primary contoot is the holder of the original document pending Bee approval. Normally the primary contact is the person who created/prepared the executive
summary. Primary contlct information is needed in the event one ofd1C addressees above, inclLXIing Sue Filson, necd to ccntact staff for additional or missing
infom1ation. All original documents needing the Bee Chainnan 's signatllfc arc to be delivered to the BeC oflice only after the Bee has acted to approve the
item)
Name of Primary Staff Robert Bosch. ROW Coordinator, TECM Phone Number 252-5843
Contact For: Paul Young, Sr. ProD. Acq. Soecialist
Agenda Date Item was January 12,2010 Agenda Item Number 16.B.3
ADoroved bv the BCC
Type of Document Drainage, Access and Maintenance Number of Original One
Attached Easement Agreement Documents Attached
INSTRUCTIONS & CHECKLIST
Initial the Yes column or mark "N/A" in the Not Applicable column, whichever is
a ro riate.
I. Original document has been signed/initialed for legal sufficiency. (All documents to be
signed by the Chairman. with the exception of most letters, must be reviewed and signed
by the Office of the County Attorney. This includes signature pages from ordinances,
resolutions, etc. signed by the County Attorney's Office and signature pages from
contracts. agreements. etc. that have been fully executed by all parties except the BCC
Chairman and Clerk to the Board and ossibl State Officials.)
2. All handwritten strike-through and revisions have been initialed by the County Attorney's
Office and all other arties exce t the BCC Chairman and tile Clerk to the Board
3. The Chairman's signature line date has been entered as the date ofBCC approval of the
document or the final ne otiated contract date whichever is a licable.
4. "Sign here" tabs are placed on the approp7iate pages indicating where the Chairman's
si nature and initials are re uired.
S, In most cases (some contracts are an exception), the original document and this routing slip
should be provided to Ian Mitchell in the BCC office within 24 hours of BCC approval.
Some documents are time sensitive and require forwarding to Tallahassee within a certain
time frame or the BCC's actions are nullified. Be aware of our deadlines!
6. The document was approved hy the BCC onOt/t2/tO (enter date) and all changes
made during the meeting have been incorporated in the attached document. The
Count Attorne 's Office has reviewed the chan es, if a licable.
Yes N/A (Not
(Initial) A licable)
~
N/A
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4
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I: Fonns! County Fanus! Bee Fonns! Original Documents Routing Slip WWS Original 9.03.04, Revised 1.26,05, Revised 2.24.05, Revised 7.3 I .09
1683
MEMORANDUM
Date:
January 14, 2010
To:
Robert Bosch
Right-of-Way Coordinator
Transportation Department
From:
Teresa Polaski, Deputy Clerk
Minutes & Records Department
Re:
Drainage, Access and Maintenance Easement Agreement
Project: LASIP Main (E-W)/Parcel #138DAME
Per your request you will find enclosed one copy of the document referenced
above (Agenda Item #16B3), adopted by the Board of County Commissioners
on January 12, 2010.
If you should have any questions, please call me at 252-8411.
Thank you.
Enclosures
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PROJECT: LASIP MAIN (E-W)
PARCEL No(s): 138DAME
FOLIO No(s): a portion of 49706500247
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DRAINAGE, ACCESS, AND MAINTENANCE EASEMENT AGREEMENT
THIS DRAINAGE, ACCESS, AND MAINTENANCE EASEMENT AGREE;MENT
(~after referred to as the "Agreement") is made and entered into on this <P fLday of
Mk, ,20 by , by and between NASSIF GOLF VENTURES, L.L.C., a
Florida limited liability company, whose mailing address is 9130 Galleria Court, Suite 316,
Naples, FI 34109 , (hereinafter referred to as "Owner"), and COLLIER COUNTY, a
political subdivision of the State of Florida, whose mailing address is 3301 Tamiami Trail
East, Naples, Florida 34112 (hereinafter referred to as "Purchaser").
WHEREAS, Purchaser requires a DRAINAGE,ACCESS, AND MAINTENANCE
EASEMENT over, under, upon and across the lands described in Exhibit "A", which are
attached hereto and made a part of this Agreement (hereinafter referred to as the
"Easement"); and
WHEREAS, Owner and Purchaser are entering into a TEMPORARY
CONSTRUCTION EASEMENT AGREEMENT for Parcel 138TCE contemporaneously with
this AGREEMENT; and
WHEREAS, Owner desires to convey the Easement to Purchaser for the stated
purposes, on the terms and conditions set forth herein; and
WHEREAS, Purchaser has agreed to compensate Owner for conveyance of the
Easement.
NOW THEREFORE, in consideration of these premises, the sum of Ten Dollars
($10.00), and other good and valuable consideration, the receipt and sufficiency of which
is hereby mutually acknowledged, it is agreed by and between the parties as follows:
1. All of the above RECITALS are true and correct and are hereby expressly
incorporated herein by reference as if set forth fully below, and all Exhibits referenced
herein are made a part of this Agreement.
2. Owner shall convey the Easement to Purchaser for the sum of:
$1,750.00
subject to the apportionment and distribution of proceeds pursuant to Paragraph 9 of
this Agreement (said transaction hereinafter referred to as the "Closing"). Said
payment to Owner, payable by County Warrant, shall be full compensation for the
Easement conveyed, including all landscaping, trees, shrubs, improvements, and
fixtures located thereon, and shall be in full and final settlement of any damages
resulting to Owner's remaining lands, costs to cure, including but not limited to the
cost to relocate the existing irrigation system and other improvements, and the cost
to cut and cap irrigation lines extending into the Easement, and to remove all
sprinkler valves and related electrical wiring, and all other damages in connection
with conveyance of said Easement to Purchaser, including all attorneys' fees, expert
witness fees and costs as provided for in Chapter 73, Florida Statutes.
1683
Page 2
3. Prior to Closing, Owner shall obtain from the holders of any liens, exceptions and/or
qualifications encumbering the Easement, the execution of such instruments which
will remove, release or subordinate such encumbrances from the Easement upon
their recording in the public records of Collier County, Florida. At or prior to Closing,
Owner shall provide Purchaser with a copy of any existing prior title insurance
policies. Owner shall cause to be delivered to Purchaser the items specified herein
and the following documents and instruments duly executed and acknowledged, in
recordable form (hereinafter referred to as "Closing Documents") on or before the
date of Closing:
(a) Easement;
(b) Closing Statement;
(c) Grantor's Non-Foreign, Taxpayer Identification and "Gap" Affidavit;
(d) W-9 Form; and
(e) Such evidence of authority and capacity of Owner and its representatives to
execute and deliver this agreement and all other documents required to
consummate this transaction, as reasonably determined by Purchaser,
Purchaser's counsel and/or title company.
4. Both Owner and Purchaser agree that time is of the essence. Therefore, Closing
shall occur within ninety (90) days from the date of execution of this Agreement by
the Purchaser; provided, however, that Purchaser shall have the unilateral right to
extend the term of this Agreement for up to 30 days pending receipt of such
instruments, properly executed, which either remove or release any and all such
liens, encumbrances or qualifications affecting Purchaser's enjoyment of the
Easement. In the event the owner cannot deliver the instruments necessary to
remove or release any liens or encumbrances affecting the Purchaser's enjoyment of
the Easement, Purchaser may either terminate the Agreement or close this
transaction. At Closing, payment shall be made to Owner in that amount shown on
the Closing Statement as "Net Cash to Seller," and Owner shall deliver the Closing
Documents to Purchaser in a form acceptable to Purchaser.
5. Owner agrees to relocate any existing irrigation system located on the Easement
including irrigation lines, electrical wiring and sprinkler valves, etc., prior to the
construction of the project without any further notification from Purchaser. Owner
assumes full responsibility for the relocation of the irrigation system on the remainder
property and its performance after relocation. Owner holds County harmless for any
and all possible damage to the irrigation system in the event owner fails to relocate
the irrigation system prior to construction of the project.
If Owner elects to retain improvements and/or landscaping ("Improvements") located
on the Easement, the Owner is responsible for their retrieval prior to the construction
of the project without any further notification from Purchaser. Owner acknowledges
that Purchaser has compensated Owner for the value of the Improvements and yet
Purchaser is willing to permit Owner to salvage the Improvements as long as their
retrieval is performed before construction and without interruption or inconvenience
to the County's contractor. All Improvements not removed from the Property prior to
commencement of construction of the project shall be deemed abandoned by
Owner.
This provision shall survive Closing and is not deemed satisfied by conveyance of
title.
pagej6 83
6. Owner and Purchaser agree to do all things which may be required to give effect to
this Agreement immediately as such requirement is made known to them or they are
requested to do so, whichever is the earlier.
7. Owner agrees, represents and warrants the following:
(a) Owner has full right, power and authority to own and operate the property
underlying the Easement, to enter into and to execute this Agreement, to
execute, deliver and perform its obligations under this Agreement and the
instruments executed in connection herewith, to undertake all actions and to
perform all tasks required of Owner hereunder and to consummate the
transaction contemplated hereby.
(b) Purchaser's acceptance of the Easement shall not be deemed to be full
performance and discharge of every agreement and obligation on the part of
Owner to be performed pursuant to the provisions of this Agreement.
(c) No party or person other than Purchaser has any right or option to acquire
the Easement or any portion thereof.
(d) Until the date fixed for Closing, so long as this Agreement remains in force
and effect, Owner shall not encumber or convey any portion of the property
underlying the Easement or any rights therein, nor enter into any agreements
granting any person or entity any rights with respect to the Easement,
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.
(e) There are no maintenance, construction, advertising, management, leasing,
employment, service or other contracts affecting the Easement.
(f) Owner has no actual knowledge that there are any suits, actions or
arbitration, administrative or other proceedings or governmental
investigations or requirements, formal or informal, existing or pending or
threatened which affect the Easement or which adversely affect Owner's
ability to perform hereunder; nor is there any other charge or expense upon
or related to the Easement which has not been disclosed to Purchaser in
writing prior to the effective date of this Agreement.
(g) Purchaser is entering into this Agreement based upon Owner's
representations stated in this Agreement and on the understanding that
Owner will not cause the physical condition of the property underlying the
Easement to change from its existing state on the effective date of this
Agreement up to and including the date of Closing. Therefore, Owner
agrees not to enter into any contracts or agreements pertaining to or
affecting the property underlying the Easement and not to do any act or omit
to perform any act which would adversely affect the physical condition of the
property underlying the Easement or its intended use by Purchaser.
(h) The property underlying the Easement, and all uses of the said property,
have been and presently are in compliance with all Federal, State and Local
environmental laws; that no hazardous substances have been generated,
stored, treated or transferred on the property underlying the Easement by
Owner except as specifically disclosed to the Purchaser; that the Owner has
no actual knowledge of any spill or environmental law violation on the
property contiguous to or in the vicinity of the Easement to be sold to the
Purchaser, that the Owner has not received notice and otherwise has no
actual knowledge of: a) any spill on the property underlying the Easement;
b) any existing or threatened environmental lien against the property
underlying the Easement; or c) any lawsuit, proceeding or investigation
regarding the generation, storage, treatment, spill or transfer of hazardous
substances on the property underlying the Easement. The amount the
Owner shall pay under this condition shall not exceed the amount paid by
pag16 B J
Purchaser for the Easement. This provision shall survive Closing and is not
deemed satisfied by conveyance of title.
8. Owner shall indemnify, defend, save and hold harmless the Purchaser against and
from, and reimburse the Purchaser with respect to, any and all damages, claims,
liabilities, laws, costs and expenses (including without limitation reasonable paralegal
and attorney fees and expenses whether in court, out of court, in bankruptcy or
administrative proceedings or on appeal), penalties or fines incurred by or asserted
against the Purchaser by reason or arising out of the breach of any of Owner's
representations under paragraph 7(h). This provision shall survive Closing and is not
deemed satisfied by conveyance of title.
9. Purchaser shall pay all fees to record any curative instruments required to clear title,
all Easement recording fees, and any and all costs and/or fees associated with
securing and recording a Release or Subordination of any mortgage, lien or other
encumbrance recorded against the property underlying the Easement; provided,
however, that any apportionment and distribution of the full compensation amount in
Paragraph 2 which may be required by any mortgagee, lien-holder or other
encumbrance-holder for the protection of its security interest, or as consideration due
to any diminution in the value of its property right, shall be the responsibility of the
Owner, and shall be deducted on the Closing Statement from the compensation
payable to the Owner per Paragraph 2. In accordance with the provisions of Section
201.01, Florida Statutes, related to the exemptions against payment of documentary
stamp taxes by Purchaser, Owner shall further pay all documentary stamp taxes
required on the instrument(s) of transfer, unless the Easement is acquired under
threat of condemnation.
10. 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/or assignees, whenever the
context so requires or admits.
11. If the Owner holds the property underlying the Easement in the form of a partnership,
limited partnership, corporation, trust or any form of representative capacity
whatsoever for others, Owner 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 underlying the Easement before the
Easement held in such capacity is conveyed to Purchaser. (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.)
12. Conveyance of the Easement, or any interest in the property underlying the
Easement, by Owner is contingent upon no other provisions, conditions, or premises
other than those so stated herein; and this written Agreement, including all exhibits
attached hereto, shall constitute the entire Agreement and understanding of the
parties, and there are no other prior or contemporaneous written or oral agreements,
undertakings, promises, warranties, or covenants not contained herein. No
modification, amendment or cancellation of this Agreement shall be of any force or
effect unless made in writing and executed and dated by both Owner and Purchaser.
13. Should any part of this Agreement be found to be invalid, then such invalid part shall
be severed from the Agreement, and the remaining provisions of this Agreement
shall remain in full force and effect and not be affected by such invalidity.
14. This Agreement is governed and construed in accordance with the laws of the State
of Florida.
Page 5
1683
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written.
AS TO PURCHASER:
DATED: (5 (- (1- Lo[o
Attlst
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
BY:
DONNA FIALA, Chairman
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AS TO OWNER:
DATED: Ulf)/ /". ::liJrP;
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COLLIER COUNTY STORM WA 7CR MANAGEMENT II
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SKETCH ANO OfSCRlPTJC>>.: D.A.U.E. ii
PART OF LOT CH '. HIBISCUS GOLF COURse. :........a....... :...... .. 1M... ._....... '-
P.B. 49. PGS. J-4. _~____-._.........._
COWER COUNTY, flORIDA ~~'it'..---::;""~.....a.o;-.:-""'':...
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LEL Y GOLF ESTA TES
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DORAL CIRCLE
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II. DAM.E." DRAINAGE. ACCESS & IrAAlNTE:NANCE EASEMENT
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OORAL CIRCLE
MACeI NO. 138 DA/-{E
NOT A SURVEY
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1683
DESCRIP nDN OF DRAINAGE, ACCESS & MAINTENANCE EASEMENT
ALL THA T PART OF LOT CH r, HIBISCUS GOLF COURSE AS RECORDED IN PLA T BOOK 49,
PAGES .3-4, COLUER COUNTY, FLORIDA BE/NG MORE PARTICULARL Y DESCR/BED AS FOLLOWS;
COMMENCING A T THE NORTHWEST CORNIiR OF SAID HIBISCUS GOLF COURSE THENCE
SOO'.31'l7"w A DISTANCE OF .350.00 FEET TO THE CENTERLINE OF AN EXISTING 700' MDE
DRAINAGE EASEMENT BlilNG STAnON 19+.3/.88;
THENCE S8928'4.3"E, ALONG SAID CENTERLINE A DISTANCE OF 1007.15 FEET TO STATION
29+.39.0.3;
THENCE LEAVING SAID CENTERLINE SOD'.3I'I7"W, A DISTANCE OF 50.00 FEET TO THE
SOUTHERL Y LINE OF" SAID EXISTING DRAINAGE EASEMENT AND THE POINT OF" BEGINNING OF" THE
EASEMENT HEREIN BEING DESCRIBED;
THENCE S89'28'4D"E, ALONG SAiD SOUTHERLY UNE A DISTANCE OF" .38.41 FEET;
THENCE LEAVlNGf' AID SOUTHERLY LINE SI6'.30'1.3"E, A DISTANCE OF 15.69 FEET;
THENCE N/j9'2/j' ..w, A DISTANCE OF .39,00 FEET.'
THENCE N14'24' ..w, A DISTANCE OF 15.52 FEET TO THE POINT OF BEGiNNING OF"
EASEMENT HERrl. DESCRIBED;
CONTAINING 5 :iSDUARE FEET OF LAND MORE OR LESS,
SUBJECT TO E !.EMENTS AND RESTRlcnONS OF" RECORD.
THE
GUY P. ADAMS
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NO. 4.390
COWER COU",TY STORM WAlER MANAGEMENT !!i~u :;:;,.."" ".' "" ...
lln..E1 . _9 ~~ GPA
SKeTcH AND DESCRJP71ON: DAME. ::. It COGO
PART OF' LOT Qf 1, HN1r~USGOl.F COURSE. 1::1 1.- \ltDC 'lor:
p.a 49. PCs. J-4, =~~:""~~......~l:~
COWER COUNTY.. FtORf(JA. ""~"--"~::""":'"':....""=""'::--"'-:"l::= SCAlf: ...r.s.
NOT A SURVEY
ABt""o.rcrl'l{l.
7599 2
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ORIGINAL DOCUMENTS CHECKLIST & ROUTING SLIP
TO ACCOMPANY ALL ORIGINAL DOCUMENTS SENT TO '683
THE BOARD OF COUNTY COMMISSIONERS OFFICE FOR SIGNATUrlE
Print on pink paper. Attach to original document. Original documents should be hand delivered to the Board atlice. The completed roUlll1g slip and original
documents are to be forwarded to the Board Oflice only after the Board has taken action on the item.)
ROUTING SLIP
Complete routing lines # I through #4 as appropriate for additional signatures, dales, and/or infonnation needed. [[the document is already complete with the
exec Han of the Chairman's 5i rnature, draw a line thrau h wutin' lines # I throu' #4, com Jete the checklist, and fOr\'iard to Ian Mitchell (line #5).
Route to Addressee(s)
(List in routin order)
1.
Office
Initials
Date
2.
11\3\ \0
3.
.Please scan under LASIP (Main Canal E- W) Project No. 51101 in thc BMR Real Property Folder. Thank you
PRIMARY CONTACT INFORMATION
{The primary conloct is the holder of the original document pending Bee apprllVal. Normally the primary contact is the person who created/prepared the executive
summary. Primary contact information is needed in the event on<: of the addressees above, inclluing Sue Filson, need to cmtact staff for additional or missing
information. All original documents needing the Bee Chaimum's signature arc 10 be dclivered to {he Bee ofl1ce only altcr the Bee has acted to approve the
4.
5. Ian Mitchell, BCC Supervisor
Board of County Commissioners
item,)
Name of Primary Staff Robert Bosch, ROW Coordinator, TECM Phone Number 252-5843
Contact For: Paul Young, Sr. Prop. Acq. Specialist
Agenda Date Item was January 12, 20 I 0 Agenda Item Number 16.B.3
Approved bv the BCC
Type of Document Temporary Construction Easement Number of Original One
Attached Agreement Documents Attached
6. Minutes and Records.
Clerk of Court's Of1ice
Yes
(Initial)
N/A(Not
A licable)
I.
INSTRUCTIONS & CHECKLIST
Initial the Yes column or mark "N/A" in the Not Applicable column, whichever is
a ro riate.
Original document has been signed/initialed for legal sufficiency. (All documents to be
signed by the Chairman, with the exception of most letters, must be reviewed and signed
by the Office of the County Attorney. This includes signature pages from ordinances.
resolutions, etc. signed by the County Attorney's Office and signature pages from
contracts. agreements, etc. that have been tully executed by all parties except the BCC
Chairman aod Clerk to the Board and ossibl' State Officials.)
All handwritten strike-through and revisions have been initialed by the County Attorney's
Office and all other arties exce t the BCC Chairman and the Clerk to the Board
The Chairman's signature line date has been entered as the date ofBCC approval oFthe
document or the final ne otiated contract date whichever is a licable.
"Sign here" tabs are placed on the appropriate pages indicating where the Chainnan's
si nature and initials arc re uired.
[n most cases (some contracts are an exception), the original document and this routing slip
should be provided to Ian Mitchell in the BCC office within 24 hours ofBCC approval.
Some documents are time sensitive and require forwarding to Tallahassee within a certain
time frame or the Bec's actions are nullified. Be aware of 'our deadlines!
The doeument was approved by tbe BCC onOtlt2/tO (enter date) and all ehanges
made during the meeting have been incorporated in the attached document. The
Count Attorne 's Office has reviewed the chan es, if a licable.
N/A
~
~
~
l: Forms! COllilty Forms! BeC Forms! Original Documents Routing Slip WWS Original 90304, Revised 1.26.05, Revised 2.24,05, Revised 731.09
2.
3.
4.
5.
6.
Date:
To:
From:
Re:
MEMORANDUM
January 14,2010
Robert Bosch
Right-of-Way Coordinator
Transportation Department
Teresa Polaski, Deputy Clerk
Minutes & Records Department
Temporary Construction Easement Agreement
Project: LASIP Main (E-W)/Parcel #138TCE
Per your request you will find enclosed one copy of the document referenced
above (Agenda Item #16B3), adopted by the Board of County Commissioners
on January 12,2010.
If you should have any questions, please call me at 252-8411.
Thank you.
Enclosures
1683
PROJECT: LASIP MAIN (E-W)
PARCEL No(s): 138TCE
FOLIO No(s): a portion of 49706500247
1683
TEMPORARY CONSTRUCTION EASEMENT AGREEMENT
THIS TEMPORARY CONSTRUCTION EASEMENT AGREEMENT (h~reinafter
referred to as the "Agreement") is made and entered into on this G-r-.. day of
tJolI~rvlkr , 20a, by and between NASSIF GOLF VENTURES, L.L.C., a
Florida limited liability company, whosemailingaddressis9130GalleriaCourt.Suite
316, Naples, FI 34109 (hereinafter referred to as "Owner"), and COLLIER COUNTY, a
political subdivision of the State of Florida, its successors and assigns, whose mailing
address is 3301 Tamiami Trail East, Naples, Florida 34112 (hereinafter referred to as
"Purchaser").
WHEREAS, the Purchaser requires a Temporary Construction Easement over,
under, upon and across the lands described in Exhibit "A" (hereinafter referred to as
"TCE"), which is attached hereto and made a part of this Agreement, for the purpose of
improving and constructing drainage and utility facilities within the public easement
immediately adjacent thereto; including, but not limited to the storage, placement, and
accessing of construction materials and equipment upon the lands described in Exhibit
"A", subject to the restrictions contained herein; and
WHEREAS, the Owner desires to convey the TCE to the Purchaser for the stated
purposes, on the terms and conditions set forth herein; and
WHEREAS, the Owner and Purchaser are entering into a DRAINAGE, ACCESS,
AND MAINTENANCE AGREEMENT for parcel 138DAME contemporaneously with this
AGREEMENT; and
WHEREAS, the Purchaser has agreed to compensate the Owner for conveyance
of the TCE.
NOW THEREFORE, in consideration of these premises, the sum of Ten Dollars
($10.00), and other good and valuable consideration, the receipt and sufficiency of
which are hereby mutually acknowledged, it is agreed by and between the parties as
follows:
1. All of the above RECITALS are true and correct and are hereby expressly
incorporated herein by reference as if set forth fully below, and all Exhibits
referenced herein are made a part of this Agreement.
2. Owner shall convey the TCE to Purchaser for the sum of $188,500.00 subject to
the apportionment and distribution of proceeds pursuant to paragraph 8 of this
Agreement (said transaction hereinafter referred to as the "Closing"). Said
payment to Owner, payable by County Warrant, shall be full compensation for the
Easement conveyed, including all landscaping, trees, shrubs, improvements, and
fixtures located thereon, and shall be in full and final settlement of any damages
resulting to Owner's remaining lands, costs to cure, including but not limited to the
cost to relocate the existing irrigation system and other improvements, and the
cost to cut and cap irrigation lines extending into the Easement, and to remove all
sprinkler valves and related electrical wiring, and all other damages in connection
with conveyance of said Easement to Purchaser, including all attorneys' fees,
expert witness fees and costs as provided for in Chapter 73, Florida Statutes.
1683
3. Prior to Closing, Owner shall obtain from the holders of any liens, exceptions
and/or qualifications encumbering the TCE, the execution of such instruments
which will remove, release or subordinate such encumbrances from the TCE upon
their recording in the public records of Collier County, Florida. Owner shall cause
to be delivered to Purchaser the items specified herein and the following
documents and instruments duly executed and acknowledged, in recordable form
(hereinafter referred to as "Closing Documents") on or before the date of Closing:
(a) Temporary Construction Easement;
(b) Closing Statement;
(c) Grantor's Non-Foreign, Taxpayer Identification and "Gap" Affidavit;
(d) W-9 Form; and
(e) Such evidence of authority and capacity of Owner and its representatives
to execute and deliver this agreement and all other documents required to
consummate this transaction, as reasonably determined by Purchaser,
Purchaser's counsel and/or title company.
4. Both Owner and Purchaser agree that time is of the essence. Therefore, Closing
shall occur within ninety (90) days from the date of execution of this Agreement by
the Purchaser; provided, however, that Purchaser shall have the unilateral right to
extend the term of this Agreement for up to 30 days pending receipt of such
instruments, properly executed, which either remove or release any and all such
liens, encumbrances or qualifications affecting Purchaser's enjoyment of the TCE.
In the event the Owner cannot deliver the instruments necessary to remove or
release any liens or encumbrances affecting the Purchaser's enjoyment of the
TCE, Purchaser may either terminate this Agreement or close this transaction. At
Closing, payment shall be made to Owner in that amount shown on the Closing
Statement as "Net Cash to Seller," and Owner shall deliver the Closing Documents
to Purchaser in a form acceptable to Purchaser.
5. Owner and Purchaser agree to do all things which may be required to give effect
to this Agreement immediately as such requirement is made known to them or
they are requested to do so, whichever is the earlier.
6. Owner agrees, represents and warrants the following:
(a) Owner has full right, power and authority to own and operate the property
underlying the TCE, to enter into and to execute this Agreement, to
execute, deliver and perform its obligations under this Agreement and the
instruments executed in connection herewith, to undertake all actions and
to perform all tasks required of Owner hereunder and to consummate the
transaction contemplated hereby.
(b) Purchaser's acceptance of the TCE shall be deemed to be full
performance and discharge of every agreement and obligation on the part
of Owner to be performed pursuant to the provisions of this Agreement,
except for items in paragraph 6 (h) and 7.
(c) No party or person other than Purchaser has any right or option to acquire
the TCE or any portion thereof.
(d) Until the date fixed for Closing, so long as this Agreement remains in force
and effect, Owner shall not encumber or convey any portion of the
property underlying the TCE or any rights therein, nor enter into any
agreements granting any person or entity any rights with respect to the
TCE, 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.
1683
(e) There are no maintenance, construction, advertising, management,
leasing, employment, service or other contracts affecting the TCE.
(f) Owner has no actual knowledge that there are any suits, actions or
arbitration, administrative or other proceedings or governmental
investigations or requirements, formal or informal, existing or pending or
threatened which affect the TCE or which adversely affect Owner's ability
to perform hereunder; nor is there any other charge or expense upon or
related to the TCE which has not been disclosed to Purchaser in writing
prior to the effective date of this Agreement.
(g) Purchaser is entering into this Agreement based upon Owner's
representations stated in this Agreement and on the understanding that
Owner will not cause the physical condition of the property underlying the
TCE to change from its existing state on the effective date of this
Agreement up to and including the date of Closing. Therefore, Owner
agrees not to enter into any contracts or agreements pertaining to or
affecting the property underlying the TCE and not to do any act or omit to
perform any act which would change the physical condition of the property
underlying the TCE or its intended use by Purchaser.
(h) The property underlying the TCE, and all uses of the said property, have
been and presently are in compliance with all Federal, State and Local
environmental laws; that no hazardous substances have been generated,
stored, treated or transferred on the property underlying the TCE by
owner except as specifically disclosed to the Purchaser; that the Owner
has no actual knowledge of any spill or environmental law violation on the
property contiguous to or in the vicinity of the TCE to be sold to the
Purchaser, that the Owner has not received notice and otherwise has no
actual knowledge of: a) any spill on the property underlying the TCE; b)
any existing or threatened environmental lien against the property
underlying the TCE; or c) any lawsuit, proceeding or investigation
regarding the generation, storage, treatment, spill or transfer of hazardous
substances on the property underlying the TCE. This provision shall
survive Closing and is not deemed satisfied by conveyance of title.
7. Owner shall indemnify, defend, save and hold harmless the Purchaser against and
from, and reimburse the Purchaser with respect to, any and all damages, claims,
liabilities, laws, costs and expenses (including without limitation reasonable
paralegal and attorney fees and expenses whether in court, out of court, in
bankruptcy or administrative proceedings or on appeal), penalties or fines incurred
by or asserted against the Purchaser by reason or arising out of the breach of any
of Owner's representations under paragraph 6(h). The amount the Owner shall
pay under this indemnification shall not exceed the amount paid by Purchaser for
the TCE. This provision shall survive Closing and is not deemed satisfied by
conveyance of title.
8. Purchaser shall pay all fees to record any curative instruments required to clear
title, all TCE recording fees, and any and all costs and/or fees associated with
securing and recording a Release or Subordination of any mortgage, lien or other
encumbrance recorded against the property underlying the TCE; provided,
however, that any apportionment and distribution of the full compensation amount
in Paragraph 2 which may be required by any mortgagee, lien-holder or other
encumbrance-holder for the protection of its security interest, or as consideration
due to any diminution in the value of its property right, shall be the responsibility of
the Owner, and shall be deducted on the Closing Statement from the
compensation payable to the Owner per paragraph 2. In accordance with the
provisions of Section 201.01, Florida Statutes, concerning payment of
documentary stamp taxes by Purchaser, Owner shall further pay all documentary
stamp taxes required on the instrument(s) of transfer, unless this Easement is
acquired under threat of condemnation.
1683
9. The term of the TCE shall be 365 days (one year), which term shall commence
upon the recording of a Temporary Construction Easement in the Public Records
of Collier County. It is agreed and understood that no construction activity shall
take place prior to April 1, 2010 either within the TCE described in Exhibit "A", nor
in the Contiguous Drainage Easement, described in Exhibit "B", attached hereto
and made a part hereof, except for an Access Pathway to be available over the
East 50 feet of the TCE, described in Exhibit "C", attached hereto and made a part
hereof. The Access Pathway shall be fenced and screened from view of Hibiscus
Drive to the extent possible. Commencing April 1, 2009, full access and
construction may be underway within the Contiguous Drainage Easement, and the
TCE may have full construction activity within the area designated in Exhibit "D".
The construction area in Exhibit "D" shall be fenced and screened from view of
Hibiscus Drive and Rattlesnake Hammock Road. It is understood and agreed that
no construction activity shall interrupt usage of Hibiscus Drive, except for curb,
sidewalk and paving construction which shall be completed after April 1, 2009.
During such construction over Hibiscus Drive, access shall continually be
maintained for Hibiscus Golf Club. At no time shall construction activity or vehicles
cross over Hibiscus Drive to travel between Lot 1 and Lot 2 of the TCE
10. It is agreed and understood that, to the extent possible, existing vegetation along
the frontage of Hibiscus Golf Course will be maintained, including plantings along
the parking lot. Upon the completion of the TCE, the Grantee shall restore the
surface of the temporary construction easement area to its pre-existing condition.
Purchaser shall require the construction contractor to carry at least $1,500,000 in
casualty loss and liability insurance, with Nassif Golf Ventures LLC being named in
such insurance policy to the extent its interests may appear.
11. 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/or assignees,
whenever the context so requires or admits.
12. If the Owner holds the property underlying the TCE in the form of a partnership,
limited partnership, corporation, trust or any form of representative capacity
whatsoever for others, Owner 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 underlying the TCE before the
TCE held in such capacity is conveyed to Purchaser, its successors and assigns.
(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. Conveyance of the TCE, or any interest in the property underlying the TCE, by the
Owner is contingent upon no other provisions, conditions, or premises other than
those so stated herein; and this written Agreement, including all exhibits attached
hereto, shall constitute the entire agreement and understanding of the parties, and
there are no other prior or contemporaneous written or oral agreements,
undertakings, promises, warranties, or covenants not contained herein. No
modification, amendment or cancellation of this Agreement shall be of any force or
effect unless made in writing and executed and dated by both Owner and
Purchaser.
1683
14. Should any part of this Agreement be found to be invalid, then such invalid part
shall be severed from the Agreement, and the remaining provisions of this
Agreement shall remain in full force and effect and not be affected by such
invalidity.
15. This Agreement is governed and construed in accordance with the laws of the
State of Florida.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
AS TO PURCHASER:
DATED: C)( - \1_ 10("
ATTEST:
DWIGHT E. BROCK, Clerk
BOARD OF COUNTY COMMISSIONERS
COLLIER COl.!.NTY, FLORIDA
-~
BY:
DONNA FIALA, Chairman
'~ ttstuto ~~erk
',1\lnature 01\,1'
AS TO OWNER:
DATED: AleJ;' t, , :)....0,;9
/, . 'L ~ . /1; -~J.. ffi-.-,
\.....-'-tX-- a/ ~.../ l_/0 vI. '
Witness (Signature)
r!//I}.N t~, ",Ie ,.'/-
Name~_nt~~_T~~2_-
\ /~, i ~ /A:-L:~\..><
\ \L'JW \, ," '.,
Witness (~ignat~) '-"
',,- ',-,
NASSIF GOLF VENTURES, L.L.C., a
Florida imited liability company
:~,:::~ -'\,' ....,> ' ')- ",.----i
'n,,} 'r '-' J\\j -t;
Name (Print or Type)
Approved as to form and
legal sufficiency:
ASSi~~]~
EXHIBIT "A"
1683
EXHIBIT ' ~4 II
Page I 01 .~L.
LOT 1 and LOT 2 OF TRACT "A" OF HIBISCUS GOLF COURSE, AS RECORDED IN
PLAT BOOK 49, PAGES 3 AND 4 OF THE PUBLIC RECORDS OF COLLIER
COUNTY, FLORIDA, LESS AND EXCEPT THAT PORTION DESIGNATED AS '100.0
DRAINAGE EASEMENT LAND' DESCRIBED IN OFFICIAL RECORDS BOOK 970 AT
PAGE 1238.
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