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Agenda 07/28/2009 Item #16D 5Agenda Item No. 16D5 July 28, 2009 EXECUTIVE SUMMARY Page 1 of 5 Recommendation to approve an Agreement regarding the conveyance of a portion or all of the access easement acquired for the Delasol Neighborhood Park at a cost not to exceed $42, Project 800605. Obiective: To obtain Board of County Commission (Board) approval of the attached Access Easement Agreement (Agreement) to convey to the Delasol Homeowner's Association (Delasol HOA) a portion or all of the access easement acquired for the property previously identified to be a neighborhood park within the Delasol PUD. Considerations: On December 2, 2008, the Board of County Commissioners voted 3 -2 to quit -claim deed Tract U, previously dedicated and deeded to the County for a neighborhood park, to the Delasol HOA. On July 7, 2009, the Quitclaim Deed was recorded in the Collier County Public Records, together with Centex's release and an Indemnity Agreement between the County and the Delasol HOA. The County and the Delasol HOA further agreed to modify the access easement, and have set forth the Board's direction in the attached Agreement. LEGAL CONSIDERATIONS: The developer of the Delasol community conveyed an access easement to Collier County by plat to enable the public to access the formerly proposed public neighborhood park. Since the park project was canceled and the County conveyed the park parcel to the Delasol HOA, the access easement is no longer needed to access the park. In accordance with Section 255.22, FS, if property is donated to the county and not used for the purpose it was conveyed, the County may convey the property back to the owner or successor in title by quitclaim deed. The Delasol HOA has requested that a portion of the access easement be conveyed to the Delasol HOA and has agreed to allow the County to use a portion of the access easement if the County acquires a neighboring parcel for conservation purposes. But if the County does not acquire the property for Conservation purposes, then the Delasol Community has asked for the entire access easement to be conveyed to the Delasol HOA. This item is ready for Board consideration. It is not quasi - judicial and ex parte disclosures are not required. A majority vote of the Board is necessary for Board action- - HFAC Fiscal Impact: The only costs to Collier County arising from entering into this Agreement are recording costs and a certified copy of the recorded document not to exceed $42. The funds will be paid from Project 800605, Growth Management Impact: Neighborhood parks are not inventoried in the Growth Management Plan. Recommendation: That the Board: 1. Approve the attached Access Easement Agreement and authorize the Chairman to execute same on behalf of the Board; 2. Direct the County Manager or his designee to record the Agreement in the Public Records of Collier County, Florida; and 3. Authorize the payment of all costs and expenses necessary to record the Agreement. PREPARED BY: Sue Jim Zimmerman; Property Acquisition Specialist; Real Property Management, Department of Facilities Management Department Page 1 of 1 Agenda Item No. 16D5 July 28, 2009 Page 2 of 5 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: 16D5 Item Summary: Recommendation to approve an Agreement regarding the conveyance of a portion or all of the access easement acquired for the Delasol Neighborhood Park at a cost not to exceed $42, Project 800605. Meeting Date: 7/28/2009 9:00:00 AM Prepared By Sue Zimmerman Property Acquisition Specialist Date Administrative Services Facilities Management 7/10/2009 4:27:38 PM Approved By Skip Camp, C.F.M. Facilities Management Director Date Administrative Services Facilities Management 711312009 8:54 AM Approved By Heidi F. Ashton Assistant County Attorney Date County Attorney County Attorney Office 7/13/2009 4:03 PM Approved By Toni A. Mott Real Property Supervisor Date Administrative Services Facilities Management 7/1412009 3:37 PM Approved By Barry Williams Director Date Public Services Parks and Recreation 7/14/2009 3:58 PM Approved By Marla Ramsey Public Services Administrator Date Public Services Public Services Admin. 711 512009 11:18 AM Approved By OMB Coordinator OMB Coordinator Date County Manager's Office Office of Management & Budget 7/1512009 1:38 PM Approved By Jeff Kiatzkow County Attorney Date County Attorney County Attorney Office 711512009 5:47 PM Approved By Susan Usher Senior Management/Budget Analyst Date County Manager's Office Office of Management & Budget 7/2012009 2:18 PM Approved By Leo E. Ochs, Jr. Deputy County Manager Date Board of County Commissioners County Manager's Office 7/20/2009 4:56 PM file: / /C: \AgendaTest \Export\ 133- July %2028, %202009\ 16. %2000NSENT %20AGENDA\ 1... 7/22/2009 Prepared by and Return To: Agenda Item No. 161D5 July 28, 2009 Page 3 of 5 Mark E. Adamczyk, Esq. Peck & Peck, P.A. 5801 Pelican Bay Blvd., Suite 103 Naples, Florida 34108 ACCESS EASEMENT AGREEMENT This Agreement to Vacate Access Easement (the "Agreement ") dated the day of 2009, by and between DELASOL HOMEOWNERS ASSOCIATION, INC., a Florida not - for - profit corporation ( "Delasol "), with a mailing address of c/o Integrated Property Management, 3435 106` Street North, Suite 201, Naples, Florida 34103, and COLLIER COUNTS', FLORIDA, a political subdivision and County of the State of Florida ( "County "), with a mailing address of 3301 E. Tamiami Trail, Naples, Florida 34112, WHEREAS, Delasol is the owner of the following real property located in Collier County, Florida: Tract "P -5 ", as shown on the plat of DELASOL PHASE TWO, a subdivision in Collier County, Florida, according to the plat thereof recorded in Plat Book 41, Pages 51 through 55, inclusive, of the Official Records of Collier County, Florida. WHEREAS, pursuant to the above - referenced plat, a twenty (20) foot access easement over Tract P -5 was dedicated and conveyed to County to access Tract "U ", said access easement being more particularly shown as "20' A.E." in Plat Book 41, Page 55, and in the Warranty Deed dated October 16, 2006 and recorded in O.R. Book 4165, Page 122, all of the Official Records of Collier County, Florida (hereafter referred to as the "Access Easement "); and WHEREAS, County has conveyed said Tract "U" to Delasol by Quit Claim Deed dated December 2, 2008 and recorded in O.R. Book 4418, Page 3296, of the Official Records of Collier County, Florida. and — WHEREAS, Delasol has requested that the Access Easement be vacated, but County wishes to retain a substantial portion of the Access Easement for public purposes on the terms and conditions stated in this Agreement. WITNESSETH: NOW, THEREFORE, in consideration of the mutual covenants herein, the adequacy and sufficiency of said covenants having been acknowledged by all parties to this Agreement, the parties hereby covenant and agree as follows: 1. The above - referenced recitals are true and correct. 2. The parties acknowledge and mutually agree that the Access Easement may not be used by the public to access Tract "U" or any portion of the Delasol subdivision and may be Agenda Item No. 1625 July 28, 20109 Page 4 of 5 used for public access to the following described parcel, subject to the limitations stated below in Paragraph 3: The South 1/2 of the Southeast 1/4 of the Northeast 1/4 of the Northwest 1/4 of Section 24, Township 48 South, Range 25 East, of Collier County, Florida (hereinafter referred to as the "Conservation Parcel ") 3. The County expressly agrees to the following terms and conditions regarding the use, extent and duration of the Access Easement: a. The County may use the Access Easement in a reasonable manner in connection with the inspection and acquisition of the Conservation Parcel. If the County acquires title to the Conservation Parcel, the County may retain a portion of the Access Easement for public access to -the Conservation Parcel and the construction of related access facilities, provided that the County executes and delivers to Delasol a quit claim deed conveying the North ten (10) feet of the Access Easement to Delasol. Further, County agrees to be solely responsible for any regulatory permits (including but not limited to new or existing environmental resource and wetlands permits) needed for its use of the Access Easement. b. Notwithstanding anything stated in this Agreement to the contrary, if the County does not acquire title to the Conservation Parcel within five (5) years of the date of this Agreement, the County agrees to execute and deliver to Delasol a quit claim deed conveying the Access Easement in its entirety to Delasol and remove any temporary or permanent access improvements and repair any damage caused by the County's use, at its sole cost and expense. 4. In the event of a default under this Agreement, the non - defaulting party shall be entitled to pursue any legal or equitable remedies pursuant to Florida law, including an action for specific performance or injunctive relief. Florida law shall govern this Agreement. Venue for any proceeding to enforce this Agreement shall be in Collier County, Florida. The prevailing party in any action to enforce this Agreement shall be entitled to recover reasonable attorney's and costs so incurred. 5. This Agreement shall be binding upon, and shall inure to the benefit of the interested persons and their respective successors, assigns, heirs and representatives. 6. This Agreement is intended to become effective immediately upon being recorded within the Public Records of Collier County, Florida. DATED: ATTEST: DWIGHT E. BROCK, Clerk , Deputy Clerk Witnesses: X4 -,-f T . � 76 � Print Name i •S.cA. -JCL e- f Print Name Approved as to form and legal sufficiency: ..0 Heidi Ashton -Cicko Assistant County Attorney Agenda Item No, 16D5 July 28, 2009 Page 5of5 BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA DONNA FIALA , Chairman Delasol Homeowners Association, Inc., a Florida non- profit corporation By: / ,r Name: ell Salmons Title: