Abaco Bay Easement Agreement
I I
PROJECT: 511341
FOLIO NO.: 61840600104
EASEMENT AGREEMENT
THIS EASEMENT AGREEMENT (hereinafter referred to as the "Agreement") is
made and entered into on this day of , 2008, by and between
ABACO BAY CONDOMINIUM ASSOCIATION, INC., a Florida non profit
corporation, whosemailingaddressis74512thAvenueSouth.Suite AA, Naples,
Florida 34102, (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 perpetual, non-exclusive Drainage Access and
Maintenance 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, within said Easement Purchaser desires to place and/or excavate
materials for the purpose of constructing, operating, and maintaining drainage facilities,
including but not limited to canals, ditches, swales and earthen berms, rip-rap and
retaining wall systems, underground pipes, and various types of water control structures
within the easement area, and to construct and maintain a stabilized roadbed facility
capable of providing access for vehicles and equipment for perpetual maintenance of
drainage facilities thereon and adjacent thereto; 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 Property to Purchaser for the sum of:
$50,000.00
subject to the apportionment and distribution of proceeds pursuant to Paragraph 8 of
this Agreement (said transaction hereinafter referred to as the "Closing"). Purchaser
shall also pay Owner's attorney's fees and costs in the amount of $3,150.00 payable to
the Swaim, Bourgeau & Davies, P.A. Trust Account and for real estate appraisal
services in the amount of $750.00 payable to Carroll and Carroll, Inc. The total
payment of $53,900.00 shall be full compensation for the Property 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
Property, and to remove all sprinkler valves and related electrical wiring, and all other
damages in connection with conveyance of said Property to Purchaser, including all
attorneys' fees, expert witness fees and costs as provided for in Chapter 73, Florida
Statutes.
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.
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 of this Agreement
and that, 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 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 agrees to relocate any existing irrigation system located on the Property
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 Property, 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 construction of the project
commences shall be deemed abandoned by Owner.
This provision shall survive Closing and is not deemed satisfied by conveyance of
title.
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.
"
Page 3
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 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. Th~refore, 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,
to the Owner's best knowledge and belief 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.
Page 4
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 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 201.01, 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 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 tegistered 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
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
AS TO PURCHASER:
DATED: 10 { J to 106
, <<': . , '
BOARD OF COUNTY COMMISSIONERS
COLLIER CO TY, FRIDA
.
AS TO OWNER
DATED: B/7~
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Witness (Signature)
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Name (Print)
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Witness (Sign
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Name (Print)
ABACQ BAY CONDOMINIUM
ASSOCIATION, INC., a Florida non profit
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By: ~
(81 na re)
Name: j2e~~'l1.r t::"TTI;;3 5ST"f1 <:;TL
(Print)
Title: V. c,.. J1-...,. /-:0 F'2 ,.
(Print Title
Approved as to form and
~~.I sufficiency:
tL ~2!~Ih-
Ellen T. Chadwell
Assistant County Attorney
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EXHIBIT A
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16408
* THIS IS NOT A SURVEY *