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Agenda 03/25/2008 Item #16B 4 Agenda Item No. 16B4 March 25, 2008 Page 1 of 9 EXECUTIVE SUMMARY Recommendation to grant a special exception to The Shores of Berkshire Lakes concerning the community's request to pay the County's noise wall contractor on the Santa Barbara Boulevard project to continue installing said wall from the limits of the warranted noise wall, easterly along Radio Road to the East boundary of their property. (Fiscal Impact: $0.00) OBJECTIVE: To allow The Shores at Berkshire Lakes to pay the County's noise wall contractor, Duratec, to continue the installation of the wall along Radio Road to the eastern boundary of the conununity. CONSIDERATIONS: A noise study prepared for the Santa Barbara Boulevard project indicated that the installation of a noise wall was wan'anted along Santa Barbara Boulevard the entire length of The Shores at Bcrkshire Lakes (from Interstate 1-75 to Radio Road) and roughly 630 feet easterly along Radio Road. It was agreed that the community would convey a right-of-way easement to the County as a means of providing the warranted noise barrier. This agreement was made a part of the Stipulated Final Judgment approved by the Board and entered into the Circuit Court on June 8, 2007. Shortly after this arrangement was negotiated, the HOA asked if they could pay Duratec themselves to continue to install the wall all the way to the eastern boundary of the community on Radio Road; and they were advised by staff that, as long as they conveyed additional right-of-way to the County and installed the wall in the right-of-way, the wall would be exempt from LDC regulations governing wall height and landscaping / irrigation. This answer was based upon the belief that construction work that takes place within the right-of-way does not constitute "development" as that term is defined by the laws of Florida, and is therefore exempt from local government land development regulations. However, the continuation of the noise wall beyond the limits where the noise study showed it as warranted, even on easement provided to the County, is not part of the transportation project, and should fall under the provisions of the LDC which would not allow the same height and features as the segment of noise wall already constructed as part of the transportation project. Since that time the HOA has hired an attorney to provide the County with a title opinion as to the tracts across which the wall is to be installed; they have hired a surveyor to prepare one of the three legal descriptions required; they have removed the wooden fence that previously existed where the wall is proposed for installation; they have had an earthen berm constructed to accept the installation of the wall; and they have contracted with Duratee to install to tlleir eastern boundary the same wall as Duratec installed for the County along Santa Barbara Boulevard and Radio Road. At this point in time the HOA is prepared to deed the additional right-of-way to the County for the installation of the wall and to apply for a permit to install the wall. The purpose of this executive summary is to inform the Board as to the special circumstances that apply in this instance, and to request that the Board exempt tllis privately-funded wall segment from the height restrictions and so that the existing wall, which was constructed by the County, may be continued uniformly along the property's entire limits on Radio Road. However, landscaping and irrigation will be installed and maintained by the Homeowners Association for this added section of unwarranted wall in accordance with the requirements imposed by the County's Land Development Code, and the Transportation Division will ensure that the plans and/or shop drawings for the wall are signed and sealed by a licensed professional attesting to the compliance with all applicable building codes. Agenda Item No. 1684 March 25, 2008 Page 2 of9 FISCAL IMPACT: There is no fiscal impact associated with this Executive Summary. GROWTH MANAGEMENT IMPACT: There is no Growth Management Impact associated with this Executive Summary. RECOMMENDA nON: That the Board of County Commissioners of Collier County, Florida: I. Approve the attached agreement and authorize its chairman to execute same on behalf of the Board; 2. Accept the conveyance ofright-of-way from The Shores at Bcrkshire Lakes; 3. Allow the installation of a privately-funded noise and privacy wall within said right-of-way; 4. Acknowledge that spccial circumstances apply in the instant case; and 5. Exempt said privately-funded noise and privacy wall from the height restrictions; and 6. Require The Shores at Berkshire Lakes Master Homeowners Association to install landscaping and irrigation in accordance with the requirements of the Collier County Land Development Code. Prepared by: Kevin Hendricks, TECM Right-ot~Way Acquisition Manager Attachments: Exhibit showing existing and proposed wall segments Page 1 of2 Agenda Item No. 16B4 March 25, 2008 Page 3 of 9 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: Item Summary: 1684 Meeting Date: Recommendation to grant a special exception to The Shores of Berkshire Lakes concerning the communitys request to pay the Countys noise wall contractor on the Santa Barbara Boulevard project to continue installing said wall from the limits of the warranted noise wall, easterly along Radio Road to the East boundary of their property. (Fiscal Impact: $0.00) 3/25/2008 90000 AM Prepared By Kevin Hendricks Right Of Way Acquisition Manager Date Transportation Services TEeM-ROW 3/10/20084:17:42 PM Approved By Norm E. Feder, AICP Transportation Division Administrator Date Transportation Services Transportation Services Admin. 3/11/200811:30 AM Approved By Kevin Hendricks Right Of Way Acquisition Manager Date Transportation Services TECM~ROW 3/11/20082:54 PM Approved By Jeff Klatzkow Assistant County Attorney Date County Attorney County Attorney Office 3/13/20088:49 AM Approved By Joseph K. Schmitt Community Development & Environmental Services Adminstrator Date Community Development & Environmental Services Community Development & Environmental Services Admin. 3/13/20088:29 PM Approved By Najeh Ahmad Director Date Transportation Services Transportation Engineering & Construction Management 3/141200812:25 PM Approved By Lisa Taylor ManagemenUBudget Analyst Date Transportation Services Transportation Administration 3/14/20081 :26 PM Approved By Sharon Newman Accounting Supervisor Date Transportation Services Transportation Services Admin 3114120081 :57 PM Approved By Pat Lehnhard Executive Secretary Date file:/ /C:\Agenda T est\Export\ 103 -March%2025, %202008\16. %20CONSENT%20AGENDA \... 3/19/2008 Page 2 of2 Agenda Item No. 1684 March 25, 2008 Page 4 of 9 Transportation Services Transportation Services Admin 3/14/20082,21 PM Approved By OMS Coordinator Applications Analyst Date Administrative Services Information Technology 3/17/20087:41 AM Approved By John A. Yonkosky Director of the Office of Management Date County Manager's Office Office of Management & Budget 3/17/20085,05 PM Approved By James V. Mudd County Manager Date Board of County Commissioners County Manager's Office 3/18/20084,17 PM file://C:\AgendaTest\Export\ I 03-March%2025,%202008\ 16. %20CONSENT%20AGENDA \... 3/19/2008 Agenda Item No. 1684 March 25. 2008 Page.S of 9 AGREEMENT THIS AGREEMENT is made and entered into on this _ day of , 2007, by and between THE SHORES AT BERKSHIRE LAKES MASTER HOMEOWNER'S ASSOCIATION, INC., a Florida corporation not for profit, whose mailing address is c/o R&P Property Management, 265 Airport Road South, Naples, FL, 34104 (hereinafter referred to as "Association"), 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 "County"). WITNESSETH: WHEREAS, the Radio Road frontage of The Shores at Berkshire Lakes community is comprised of common element lands to which title is held by The Shores at Berkshire lakes Homeowners Association, Inc., a Florida corporation not for profit, (hereinafter referred to as "Association"): and WHEREAS, County has conducted a study to determine whether or not portions of The Shores at Berkshire Lakes community meet the criteria for public funding of sound attenuation barriers ("noise walls") in connection with the 6-laning of Santa Barbara Boulevard: and WHEREAS, only a portion of The Shores at Berkshire Lakes community's frontage on Radio Road (between Station 259+70 and Station 265+92.70) qualified under said criteria for pubiic funding of noise walls: and WHEREAS, Association desires to have the noise wall extended alon9 its Radio Road frontage from the easterly terminus of the publicly funded noise wall to the eastern boundary of The Shores at Berkshire Lakes community: and WHEREAS, Association has agreed to fund a separate contract with the County's Santa Barbara Boulevard noise wall contractor to extend the noise wall from Station 265+92.70 to the eastern boundary of The Shores at Berkshire Lakes community (hereinafter referred to as the "Privately Funded Privacy Wall"); and WHEREAS, Association agrees to deed to County a fifteen (15) foot wide strip of right- of-way along Radio Road (see Exhibit "A," hereinafter referred to as "Right-of-Way") within which a Privately Funded Privacy Wall may be constructed: and WHEREAS, Association agrees to pay for the cost of recording the deed for the Right- of-Way in the public records and to pay all documentary stamp taxes in connection therewith: and WHEREAS, Association acknowledges that it will be responsible for continuing and perpetual maintenance of not only the interior but also the exterior surfaces of the Privately Funded Privacy Wall: and WHEREAS, Association acknowledges that County will have no obligation whatsoever for the maintenance and/or repair of the Privately Funded Privacy Wall; and WHEREAS, Association agrees to install and maintain landscaping and irrigation outside the Privateiy Funded Privacy Wall section consistent with the requirements of the Collier County Land Development Code (LDC). 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 Agreement Aoencia Item No. 1GE',4 ~, f'v1arch 25, 2:J08 P[~gf 6 of 9 Page 2 2. Association shall convey to County the Right-of-Way free and clear of all liens and encumbrances within thirty (30) days of the effective date of this Agreement. This conveyance is conditioned upon the completion of the Privately Funded Privacy Wall as proposed. In the event the Association is unable to permit and construct the Privately Funded Privacy Wall within twelve months of this Agreement and makes written request of the County, County will deed the Right-of-Way back to the Association. 3. Association shall pay all recording costs, documentary stamps, and costs associated with the release or subordination of all existing liens or encumbrances on the Right-of- Way. 4. Association may contract with County's wall contractor, separate and apart from County, for construction of a privately-funded privacy wall within the proposed Right-of- Way from Station 265+92.:70 to the eastern boundary of The Shores at Berkshire Lakes Community. County is under no obligation to coordinate or facilitate the construction of the Privately Funded Privacy Wall. 5. In the event that Association elects to fund construction of the Privately Funded Privacy Wall referenced in Paragraph 3 (above), it shall first apply for a Collier County Right-of- Way Permit and agree to abide by all the conditions thereof. As an express condition of the Right-of-Way Permit, Association shall indemnify County against any claims arising out of the construction and future maintenance of the Privately Funded Privacy Wall by Association, its successors and assigns. Prior to commencement of wall construction, Association shall submit to the County's Transportation Division LDC- compliant landscaping and irrigation plans prepared by a licensed landscape architect, as well as plans and/or shop drawings of the proposed Privately Funded Privacy Wall, signed and sealed by a licensed professional engineer, attesting to the wall's compliance with all applicable building codes. 6. After completion of the Privately Funded Privacy Wall, and all associated improvements, including landscaping and irrigation, Association will enter into a standard County Landscape Maintenance Agreement for the perpetual maintenance of all improvements, including the wall, constructed within the Right-of-Way. 7. All design, permitting and construction activities are the sole responsibility of the Association and will be in compliance with all state and local laws and regulations. County makes no express or implied representations about the permittability of the Privately Funded Privacy Wall. The Association understands that certain code requirements need to be met and that transfer of the Right-of-Way may result in non- compliance with existing Preserve requirements. The parties hereto acknowledge the foregoing and agree that the terms of this Agreement shall not be construed, or are not intended, as authorization for the permitting of the Privately Funded Privacy Wall or a deviation or waiver of existing code requirements. 8. This Agreement and the terms and provisions hereof shall be effective as of the date this Agreement is executed by both parties and may only be modified by written amendment thereto. 9. This Agreement is contingent upon no other provisions, conditions, or premises other than those so stated above; 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. 10, Association hereby releases, holds harmless, defends and indemnifies County for and from any and all damages, claims, liabilities, actions, costs and expenses (including without limitation reasonable paralegal and attorney's fees and costs), penalties or Agreement Aaenda Item No. 1684 " March 25, 2008 Page 7 of 9 Page 3 fines incurred by or asserted against the County by reason or arising out of the Associations, it's agents, contractors, or employees' performance hereunder. 11. This Agreement is not intended to create any rights, benefits or entitlements in any person or entity who is not an undersigned party to this agreement. No third-party beneficiary claims may be asserted on the basis of this Agreement. 12. This Agreement is governed and construed in accordance with the laws of the State of Florida. 13. All obligations contained herein shall survive the recording of the deed. IN WITNESS WHEREOF, the parties have caused these presents to be executed the date and year first above written. AS TO COUNTY: DATED: ATTEST: DWIGHT E. BROCK, Cierk ,Deputy Clerk BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA BY: Tom Henning, Chairman AS TO ASSOCIATION: THE SHORES AT BERKSHIRE LAKES MASTER HOMEOWNER'S ASSOCIATION, INC., a Fiorida not for profit corporation By: WITNESSES: Witness (Signature) Name: (Print) Larry Cece, President Witness (Signature) Name: (Print) STATE OF FLORIDA COUNTY OF COLLIER The following Agreement was acknowiedged before me, the undersigned authority, by LARRY CECE, as President of THE SHORES AT BERKSHIRE LAKES MASTER HOMEOWNER'S ASSOCIATION, INC., a Florida not-for-profit corporation, who (--> is personally known by me or (--> provided as identification. State of Florida, Notary Public Print Name: My commissioner expires: Serial No. Approved as to form and legal sufficiency: Ellen 1. Chadwe Assistant County ey Agenda item No. 1684 March 25, 2008 Page 8 of 9 EXHIBIT A PARCEL 1: LEGAL DESCRIPTION IS-FOOT ROAD EASEMENT FOR NOISE WALL SHORES AT BERKSHIRE LAKES A portion of Tract D, SHORES AT BERKSHIRE LAKES, PHASE TWO-A, according to the Plat thereof recorded in Plat Book 32, at Pages 60 & 61, and a portion of Tract A, Berkshire Pines, Phase One, according to the Plat thereof recorded in Plat Book 29, at Pages 47 & 48 of the Public Records of Collier County, Florida, being more particularly described as follows: Commence at the Southwesterly comer of said Tract "D", Shores at Berkshire Lakes, Phase Two-A; thence run N 87 degrees 45' 03" E, along the Southerly line of said Tract "D", a distance of 665.29 feet; thence run N 02 degrees 15' 09" W, a distance of 14.59 feet to the Point of Beginning of the Parcel of land herein described; thence run N 05 degrees 02' 19" E, a distance of 15.00 feet; thence run S 84 degrees 57' 41" E, a distance of 114.05 feet; thence run N 87 degrees 45' 02" E, a distance of597.79 feet to the Easterly line of said Tract "A", Berkshire Pines, Phase One, the same being a point on acurve to the right, having a radius of 60.00 feet, a central angte of 16 degrees 12' 51", a chord bearing oj'~f25 degrees 19' 44" W, and a chord length of 16.92 feet; thence run along said Easterly line and the arc of said curve an arc length of 16.98 feet to the end of said curve; thence run S 87 degrees 45' 02" W, along the Southerly line of said Tract "A" and the Southerly line of said Tract "D", a distance of 590.91 feet; thence run N 84 degrees 57' 41" W, a distance of 115.00 feet to the POINT OF BEGINNING. Bearings shown hereon refer to Shores at Berkshire Lakes, Phase Two A, according to the Plat thereof recorded in Plat Book 32 at Pages 60 & 61 of the Public Records of Collier County, Florida. NOTE: THE ABOVE DESCRIBED LEGAL DESCRIPTiON, AS PROVIDED, DOES NOT CLOSE. PARCEL 2: The South 15 feet of Tract A, Berkshire Pines, Phase One, according to the Plat thereof recorded in Plat Book 29, Pages 47 and 48, of the Public Records of Collier County, Florida. NOTE: THE ENTIRE LEGAL DESCRIPTiON FOR PARCEL 2 IS CONTAINED IN THE LEGAL DESCRIPTION OF PARCEL 1. PARCEL 3: The South IS feet of Tract B, Berkshire Pines, Phase One, according to the Plat thereof recorded in Plat Book 29, Pages 47 and 48, ofthe Public Records of Collier County, Florida. Page 7 of7 Agenda Item No. 16B4 March 25, 2008 Page 9 of 9 APPROXIMATE LOCATION OF WALLS AT THE SHORES (NOISE WALL IN YELLOW I PRIVACY WALL IN ORANGE)