Parcel 143
Project: 62081 - Santa Barbara Boulevard Parcel: 143
Folio: 38169440007
EASEMENT AGREEMENT
TIllS EASEME%~AGREE~NT (~erejnafter referred to as the "Agreement") is made
and entered into on this ,!'tlayof r 2007, by and between HILDA LUISA DIAZ-
PERERA AND NELSON J. ZULE j\, wife and husband whose mailing address is 5630
Copper Leaf Lane, Naples, Florida 341 16.6735 (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, Purchaser requires a perpetual, non-exclusive Road Right-of-Way, Drainage
and Utility Easement over, under, upon and across the lands described in Exhibit "A", which is
attached hereto and made a part of this Agreement (hereinafter referred to as the "Easement");
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 ofTen 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:
] . 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 $172,000.00
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 shall be made to the Trust Account of Dean, Mead, Egerton,
Bloodworth, Capouano & Bozarth, PA, P.O. Box 2346, Orlando, FL 32802.
2346 by County Warrant and 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, attorneys' fees, expert costs, third-
party expenses and all other damages in connection with conveyance of said
Easement to Purchaser.
3. Prior to Closing, Owner shall obtain from the holders of any liens, exceptions
and/or qualifications encumbering (he 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,
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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) Road Right-of-Way, Drainage and Utility 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 of this Agreement
and that, therefore, Closing shall occur within thirty (30) 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
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. 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 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
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(d) Until the dale 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 knowledge that there are any suits, actions or
arbitration, administrative or other proceedings or govenunental
investigations or requirements, formal or informal, existing or pending or
threatened which affect the Easement or which adversely affect Owners
ability to perform hereunder; nor is there any other charge Qr 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) To the best of the Owner's knowledge, 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 except as
specifically disclosed to the Purchaser; that the Owner has no
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
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. This
provision shall survive Closing and is not deemed satisfied by
conveyance of title,
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7. Owner shaH indemnify, defend, save and hold harmless the Purchaser against and
from, and reimburse the Purchaser with respect to, any and aH 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). This provision shall survive
Closing.
8. Purchaser shall limit its use of the Easement to Road Right-of-Way, Drainage and
Utility uses and shaH construct improvements on the Easement that are in
substantial conformity with construction plans, set forth in Exhibit "B", which is
attached hereto and made a part of this Agreement (hereinafter referred to as the
"Construction Plans"). A portion of Santa Barbara Boulevard located south of the
Easement is now scheduled to be developed with a six lane road section, whereas,
the Easement and other portions of Santa Barbara Boulevard are currently
scheduled to be constructed with a four lane road section. Ultimately, the
Purchaser expects to widen the portion of Santa Barbara Boulevard that includes
the Easement. When this additional widening takes place, Purchaser shaH
construct improvements within the Easement that are in substantial conformity
with the existing construction plans for the six-lane sections for Santa Barbara
Boulevard. These construction plans are dated July 26, 2006, and relate to Station
numbers 431 to 435. At all times, Purchaser acknowledges that the improvements
it will construct within the Easement shall not change the existing grade or
elevation ofthe Easement by more than three (3) feet from the grade or elevation
that exists prior to the entry of the Easement. Further, Purchaser acknowledges
that, except for storm events exceeding a twenty-five (25) year storm, no storm
water will flow from the Easement on to Owner's remaining property and that no
storm water will be restricted from flowing off of Owner's remaining property as a
result of the Purchaser's use and development of the Easement. A portion of the
Owner's existing fifteen (15) wide driveway that is located within the Easement is
depicted on Exhibit "C. That portion of the driveway that is not depicted on
Exhibit "C" as being removed will remain open and unimpacted.
9. Since the Easement will be used by Purchaser for Road Right-of-Way, Drainage
and Utility uses, Owner's use of the Easement is extremely limited. As a result,
Purchaser 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 Owner by reason or arising out of the use of the
Easement by any party other than the Owner. This provision shall survive Closing,
however, this provision is not assignable to any subsequent purchaser of the
property located at 5630 Copper Leaf Lane, Naples, Florida and shall only apply to
the Owner.
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10. Purchaser's acquisition of the Easement is made under the threat of condemnation.
Purchaser has the authority to condemn the Easement. The parties acknowledge
that Section 1033 of the Internal Revenue Code is appropriate to apply to this
transaction.
II. 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 apportiorunent 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 for
the execution of any release, subordination or satisfaction, 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 201.0 I, 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 the Easement is acquired under
threat of condemnation.
12. 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.
13. If the Owner holds the property underlying the Easement in the form of a
partnership, limited partnership, corporation, trust or any form ofrcpresentative
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 5]7, Florida Statutes, whose stock is for sale to the
general public, it is hereby exempt from the provisions of Chapter 286, Florida
Statutes.)
14. 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.
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15. 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. Should this Agreement be the subject oflitigation, the prevailing party
attorneys' fees and costs will be paid by the non-prevailing party.
16. This Agreement is governed and construed in accordance with the Jaws of the State
of Florida.
17. Unless this Agreement is executed by Owner and Purchaser no later than
September 18,2007, this Agreement shall be null and void and of no legal effect.
Further, if Owner receives net proceeds from the sale of the Easement in the
amount ofless than $120,000.00 after fulfilling the terms of Paragraph 4, herein,
then Owner may, at Owner's discretion, declare this Agreement as null and void
and of no legal effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreemenron the date
first above written. ; ,
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Acquisition Approved by BCC pursuant to Resolution No. 2002-442.approved Ill! the ';JIll!,
day of Ca.) .:lOD;), f'a .. . .~. (.. "r.;
~ 'lHLvO\f.." ~.
AS TO PURCHASER: DATED: '1 /1)' I 0 onatu,.. 0II1~ f"n/S.'::' 'r
ATTEST:
DWIGHT E. BROCK, Clerk
BY: Deputy Clerk
,.
BOARD OF COUNTY COMMISSIONERS'
COLLIER COUNTY, FLORIDA
:ri)
Z:~ED:
Witness (Signature)
alUM 4.SvlJtEz.
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Witness (Signature)
5U1fK't) B L~
Name (Print or Type)
JA47lrf#
(c't/;t:~ G?,,~
HILDA LUISA DIAZ-PERE
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(;/ uwl/. !:v#E. ~
l ~re (PttVf;e), .
JliJ1!!IJLlJ~
Witness (Signature)
BLf~nC-A B . CbnTllErl-ki
Name (Print Or Type)
Approved as to form and legal
suffi . ency:
lien T. Chadwell Assistant County
Attorney
00370627vl
.
7
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o ~5 ~ 100
l\:) GRAPHIC SCALE
O:l ~ [XISTING 60' [ASEMENT
~ I FOR R.o. W PURPOSES PER PiA T
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330.00' (PLAr)
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106.1
1051 105
SOUTH 150' NORTH 180'1
OF TRACT 105 OF TRACT 105
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PROPOSEDE
NON-EXa.US1 ROAD
Ro. w., DRAIN. AND
U11UTY T
4100 lil1IINIE FEET
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Co
EAST 11 c OF SECTION 29 :\
SANTA BARBARA BOULEVARD
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GOWEN GA TE ES A TES UNIT 30.
PLA T BOOK PAGE 58
104
104.1
PROPOSED,
R: EASEAl NT~
EXIST! G 53' EASEMENT
FOR . O. W. PURPOSES
PeR PLA T)
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7 8 9 I 10
GOWEN GATE CITY UNIT 6. PLAT BOOK 5. PAGES /24-/34 BLOCK 225
LEGAL DFSCRIP710N
BDNG THE IIfST 54 FEfT OF THE EAST /07 FEfT OF THE SOUTH /50 F[fT OF THE NORTH /80 FEfT OF TRACT
/05. GOWEN GAT[ ESTATES UNIT 30. PLAT BOOK 7, PAGE 58. COLLIeR COUNTY. FLORIDA.
""", COLUER COIJNTY 'lRANSPORTA1ION.
ENGlNfERING . CONS1RUCTlON MANAGEMENT DIVISION
"''', ~ AND DEScRIPTION
8[1NG PART OF THE NORTH 180' OF TRACT TOS,
GOLDEN GArr [STATES UNIT JO, PLAT 800K 7, PAGE 58.
COLLIER COUNTY, FLORfDA
CONTAINING 8./00 SQUARE FfET MORE OR LESS.
SUBJECT TO EASEMENTS &- RESTRICTIONS OF RECORD.
... NOT A SURVEY...
exH,e,., "A "
OFf }Ii SlJRVEYOR &: MAPPER
FLORIDA RtC/STRA L515627
Nor VALID UNL[SSSIGNfD BY rHE SURVCYOR AND
5[ALCD WfTH THE SURVEYOR'S fMBOSSEO SEAL.
CfRFlFlCAT[ OF AUTHORIZAllON I LB-43
8CAIiIIIiS.!J/CBASEDCIi/(()RrH
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S>SInI(G/II/J)FIJItIlOUMrAsrZONC.
PROJ(CT NO.: 62087 PARCEl NO.. 143
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04/2002
Nov lJ. 2002 - 13:13;37 ll,jlllfRIX:\SUR\N60n\Sl<elcn Of Desc;c,pUonS\SlJbmiUed\2qq20JS143dwg
LEGEND:
[..>..>.>, " " " '/ Wfl'i:ASEMENr
~ PROPOSeD
R.o.w. eASEMENT
R.o.w. m RIGHT OF WAY
PFlOJECT ..O~
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