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Parcel 700 Countryside License IRREVOCABLE LICENSE AND RIGHT OF ENTRY Thi~vocable License and Right of Entry is given this )6 day of ~~ ,204, by COLLIER COUNTY, a political subdivision of the State of Florida (hereinafter referred to as "Licensor"), to COUNTRYSIDE MASTER ASSOCIATION, INC., OF FLORIDA, a not-for-profit corporation, its agents, contractors or assigns, whose mailing address is 600 Countryside Drive, Naples, Florida 34104 (hereinafter collectively referred to as "Licensee"), for the express purpose of maintaining and/or repairing a wall located within the Santa Barbara Boulevard right-of- way. ENTRY ONTO LICENSOR'S LANDS (EXHIBIT "A", #10) by Licensee, shall constitute acceptance of this Irrevocable License and Right of Entry, and such acceptance shall carry with it the Licensee's promise to obtain all the required permits prior to performing the work described above, and to indemnify and hold harmless Licensor from and against any and all claims and demands and causes of action, which may arise as a result of Licensee's performance or activities under this agreement, including, but not limited to, all claims and demands and causes of action, personal injury, death, or damage to property sustained by any person, firm, or corporation, including, without limitation, the employees, agents, or Contractors of Licensee, together with all costs and a reasonable attorney's fee for defending the same. ADDITIONALLY, Licensee agrees that it shall, at the Licensee's cost, repair any damage caused to Licensor's property as a result of Licensee's negligence. IN WITNESS WHEREOF, the Licensor has caused this Irrevocable License and Right of Entry to be executed by its duly authorized repre$entative: ATTEST: DWIGHT E. BROCK, Clerk ':"~~; :... " ',', ::A'(e~,:~ . "AI ~ tJltJ;}: '( "'."'< . ....1/.: c::r/ '. '" .. ' . . .' ,(~ ...- ~!)4 . SU3~:.~.:..,." . r . . ! ~ BOARD OF COUNTY COMMISSIONERS COLLIER C~TY' FLORIDA _ By: ~ d-~ DONNA FIALA, CHAIRMAN AS TO LICENSEE: WITNESSES: COUNTRYSIDE MASTER ASSOCIATION, INC., a FLORIDA NOT-FOR-PROFIT CORPORATION BV:~ MARC A FEE ,RESIDE T (Print Name) STATE OF FL COUNTYOF Co//,'er The foregoing ~vocable Licensee and Righ!. of Entry was acknowledged before me this 5t:hday of () I/ernbe r , 200~, by MARICA FEENEY, as President, on behalf of Countryside Master Association Inc., a Florida not-for-profit corporation who: / is personally known to me OR produced as proof of identity. (affix notarial seal) ~\\\\\lm"""111. ~'" ~~\CIA C ~/I~ ~ ~"........ ~A~ S' ....~.'IS(!'" .. 'l/\?' ;:: .._r\,..... UV4' .0 v... ~ ~ . ~ 7 ~.... ~ ~ :.~ 1,<3 ~... ~ :*. ~~. : = : cP",_ = :z:: .... :*= os 0... . IDD "~.4_ .:: _~.~ ~ 0 _ ~~. .~~ ~>~... ~\hIII J>....~~ ~ 7A:..""JIiC~;.~9 ~ ~~()'(/~.o....""'~ '<;-.~ 1111. ". STAn:. v ~,'f. 111""''''\1\\\\'' \ J/J .. C.4~ --~A- . (Signature of Notary Public) Ya-tr"C/CL ('. &rd/ (Print Name of Notary Public) Serial I Commission # (if any): 1)':]) (JS() J./(Q ~ ....,... My Commission Expires: J t7t n. / /) 02 0 13 Approved as to form and Legal sufficiency: ~ \')V ~~.~ Assi nt County Attorney PROJECT: Santa Barbara Road 162081 PARCEL No: 700 EXHIBIT Page I of A- <l NOVATION AGREEMENT ~IS NOVATION AGREEMENT is made and entered into on this $ day of , 2007, by and between COUNTRYSIDE MASTER ASSOCIATION. INC.. a Iorida not- profit corporation, whose mailing address is 600 Countryside Drive, Naples, Florida 34104 (hereinafter referred to as .Countrysidej, 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, County has volunteered to construct two (2) segments of a sound attenulltion wall along Countryside's Santa Barbara Boulevard frontage; and WHEREAS, the first sound attenuation wall segment will be located on Countryside's property from Santa Barbara Boulevard Project No. 62081 Station No. 297+60 to Station No. 304+44, with a top elevation of 21.5 NGVD: and WHEREAS, the second sound attenuation wall segment will begin on Countryside's property at Station No. 333+53.417 extending north to Station No. 335+40 at a northeasterly bearing until it reaches Station No. 335+60, where it will be located completely within County's existing right-of-way, and thereafter extending to and ending at Station No. 339+20 (hereinafter "Noise Wall Segments"), with a top elevation of 21.5 NGVD from Sta. 333+53.47 to Sta. 336+60 and a top elevation of 24 NGVD from 818. 336+60 to Sta. 339+20; and WHEREAS, Countryside acknowledges that County is under no obligation to construct any of the sound attenuation wall segments; and WHEREAS, Countryside has further requested that County construct a privacy wall and a sodded, earthen berm under said wall (hereinafter .Privacy Wallj, along Countryside's Santa Barbara Boulevard frontage beginning at Station 304+414 and extending to Station 333+53.47, with a top elevation of 21.5 NGVD; and WHEREAS, Countryside has offered to provide County with a properly executed Temporary Construction Easement ("TCEj, a legal description of which is attached hereto and incorporated herein as Exhibit. A,. and to provide County with all utility subordinations as needed (where utility easements may encumber the TCE areas), in order that County and its contractor shall have the legal right to enter upon Countryside's property for the purpose of constructing the afore-mentioned walls; and WHEREAS, Countryside acknowledges that County will not begin construction of either the Noise Wall Segments or the Privacy Wall unless and until County receives a properly executed TCE and any necessary utility subordinations and payment from Countryside for the cost of the Privacy Wall; and WHEREAS, Countryside agrees to pay for the cost of recording the Temporary Construction Easement and utility subordinations in the public records; and WHEREAS, Countryside desires to maintain the Noise Wall Segments and Privacy Wall in perpetuity and County has agreed to grant Countryside an irrevocable license to enter upon County right-of-way for such purpose; and WHEREAS, the parties entered into an Agreement memorializing the foregoing terms on July 25, 2006 but have failed to perform in accordance with its terms; and WHEREAS, since execution of the Agreement, the parties have discovered that construction of certain Noise Wall Segments and the Privacy Wall on Countryside's property will require the installation and perpetual maintenance of landscaping in accordance with the Collier County Land Development Code, and 501423 Y_OI 1019051 0001 EXHIBIT A- Page J.,. Of-:t. Agreement Page 2 WHEREAS as a condition for this Novation Agreement, Countryside will accept responsibility for ihe design, installation and future maintenance of the required landscaping, and the costs associated therewith; and WHEREAS, the landscaping design and pennitting must be coordinated, and submitted together, with the County's permit applcatlon for the proposed wall construction, and County has agreed to cooperate with Countryside to the fullest extent possible; and WHEREAS, this Novation Agreement is intended by the parties to replace all previous obRgations and understandings between the parties and to act as a complete novation of the Agreement dated July 25, 2006. 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. County has solicited bids for the Project through its fonnal bidding process and has included the Privacy Wall as an Optional Work Item (hereinafter "Optional Work"). The estimated cost of the Optional Work Item is $807,672.00. Countryside will pay the sum of $914,000.00, which includes a contingency, to the County no later than March 15. 2007. Said funds will be placed into a separate interest-bearing Construction Account to be administered solely by County for purposes of making periodic progress payments pro-rated for the Privacy Wall work effort, when such payments become due under the project contract. A monthly account statement will be provided, if requested, by County, including all documentation submitted by the contractor for purposes of payment. 3. Countryside shaH provide County with a properiy executed TCE and any necessary utility subordinations to the County within 60 days of the date of this Agreement at no cost to the County. In the event Countryside fails to deliver these documents to County in accordance herewith, this agreement shaft tenninate within fourteen (14) days of County's written demand for pelfonnance, unless otherwise agreed by County. 4. County and Countryside will cooperate with each other, or either's designated agent, to obtain the necessary development approvals for the construction and installation of the Walls. as defined below, and associated landscaping and irrigation. To this end, County will obtain an administrative variance for the height requirement for the Walls. Countryside will retain a landscape architect to prepare a code-compliant site plan showing the wall and associated landscaping and irrigation (hereinafter "Plan") for the Privacy Wall and those portions of the Wall Segments to be constructed on Countryside's property. Countryside will be responsrble for delivery of a design plan prepared in accordance with generally acceptable industry standards and all county code requirements. The Plan must be completed and submitted to County transportation staff for initial review at leat 30 days prior to the County's application for development approval of the Proposed wall construction. If the Plan is in compliance with this Paragraph, the Plan will be incorporated into the County's application for development approval for the wall construction. 5. County will direct the contractor to undertake the Optional Work 2!!bl when the following conditions have been met: a. Submittal of a Plan prepared in accordance with Paragraph 4 above, along with the code required number of copies. b. Procurement by County of an administrative variance waiving LDC height requirements for the WaNs. c. Delivery of a fully executed and binding agreement between Countryside and a third party for the installation and first year maintenance of the landscaping and irrigation improvements as shown on the Plan. d. Notification of a plan or method by which Countryside will provide for the perpetual maintenance of the landscape improvements. This condition will be deemed met, if such plan is legally and physically capable of implementation and a reasonable person would rely upon such plan or method. Agreement EXHIBIT k page~ofZ Page 3 6. Countryside acknowledges and agrees that County cannot construct the Walls if all requirements of the Land Development Code ("LOCj are not met. that each party has a duty to use its best efforts to obtain the development approval needed for the wall and landscaping improvements, and that either party's failure to obtain said approvals, where such failure cannot be cured within thirty (30) days, will constitute a frustration of purpose and will terminate this Novation Agreement. In this event, County shall retum, within thirty (30) days, all monies on deposit per Paragraph 2, including accrued interest, to Countryside, and both parties shall be released from any further obligations or liability arising out of this Novation Agreement. 7. Assuming all conditions set forth herein have been met, County shall construct the Noise WaD Segments and Privacy Wall, hereinafter collectively referred to as "the Walls," as part of the 6-lane improvements to Santa Barbara Boulevard, Project #62081, in accordance with the general plans and specifications contained in Exhibit .B. . Countryside has selected a color for both sides of the Walls and County will specify this color when ordering the Optional Work Item. 8. Upon completion of the Optional Work, final payment to the Contractor and acceptance of the Optional Work, County will provide Countryside with a final accounting for all costs associated with the Work. Within thirty (30) days thereafter County shall disperse any surplus funds, including all accrued interest, to Countryside. As used herein .surplus. means any money remaining after all contractual or legally required payments have been made by County related to the Optional Work, and does not include any remaining balance during the pendency of a contactor dispute or claim regarding the Work. 9. After completion of the Optional Work, Countryside shall install all landscaping and irrigation improvements as provided for in the Plan. and shall thereafter maintain all such improvements as required by the LDC. Countryside acknowledges that its failure to plant and maintain all landscaping and associated improvements in accordance with County approvals, will result in a code violation. The parties agree that nothing contained in this Novation Agreement shall act as a waiver or acquiescence by County of existing code requirements and their enforcement. 10.After acceptance of the Optional Work, County will grant Countryside an irrevocable license to enter upon County right-of-way to access and maintain the northernmost Noise Wall Segment. All activity within County right-of-way will be conducted in conformity with County's standards and local ordinance. However, no right-of-way permit will be required. 11. Countryside agrees to assume all maintenance responsibility for the completed Walls and all landscaping installed on Countryside's property in perpetuity. For those portions of the Walls located within the County right-of-way, Countryside agrees to indemnify the County for and from, and to reimburse County with respect to, any and all damages, claims, liabilities, actions, costs and expenses (including without limitation reasonable paralegal and attorney fees and expenses), penalties or fines incurred by or asserted against the County by reason or arising out of Countryside's maintenance of the Walls. County will be responsible for the perpetual maintenance of all landscape improvements which County installs within its right-of-way. It is understood by the parties that Countryside need only design, install and maintain landscaping and associated irrigation for those portions of the Walls to be built on Countryside property. 12. Any notice, request, demand, instruction or other communication to be given to either party hereunder shall be in writing, sent by facsimile with automated confirmation of transmittal, or by registered or certified mail, return receipt requested, postage prepaid, addressed as follows: If to County: Kevin Hendricks. Manager Transportation and Engineering Department 2885 South Horseshoe Or. Naples, Florida 34104 (tel)(239) 213-5844 (fax)(239) 213-5885 Agreement EXHIBIT ~ Page-4-0f~ Page 4 If to Countryside: Mr. Richard Kudelski, President 600 Countryside Drive Naples, FL 34104 (tel) (239) 353-1780 (fax) (239) 353-3717 The addressees and numbers may be changed by either party by giving written notice of such change to the other party in the manner provided herein. For the purpose of changing such addresses or addressees only, unless and untH such written notice is received, the last addressee and respective address stated herein shall be deemed to continue in effect for all purposes. 13. County will obtain for the benefit of Countryside all express warranties given to the Contractor of the Walls by contractors, subcontractors and materialmen supplying materials, equipment or fixtures for the Walls. County wiD obtain B warranty for the benefit of Countryside from the Contractor of the Walls that: (1) any materials and equipment fumished under the project contract shall be new unless otherwise specified; (2) aD work shall be of good quality, free from all defects and in conformance with the project contract documents; (3) all materials and equipment furnished under the contract documents shall be applied, installed, connected, erected, used, cleaned and conditioned in accordance with the instructions of the applicable manufacturers, fabricators, suppliers or processors except as otherwise provided for in the contract documents; (4) if, within one (1) year after the Walls are completed and aocepted by County, any work is found to be defective or not in conformance with the contract documents, Contractor shall correct it promptly after receipt of written notice from County or Countryside; and (5) that Contractor will be responsible for and pay for replacement or repair of any damages to Countryside's property resulting from such replacement or repair. 14. COUNlY MAKES NO REPRESENTATIONS OR WARRANTIES, IMPLIED OR EXPRESS, AS TO THE EFFICACY OF SOUND ATTENUATION OF THE WALLS, THE CONDITION OR QUALITY OF THE OPTIONAL WORK AND THE FITNESS OF THE WALLS FOR ANY PARTICULAR PURPOSE. 15. No later than 30 days after completion of the Walls, the County Project Manager and a representative of Countryside shan conduct an inspection of the Walls to verify compliance with the requirements of the Agreement. The Contractor's representative shaD be present at the time of inspection and shall take remedial actions to correct any deficiencies noted in the inspection. Failure of the Contractor to correct the cited defic:iencies shall be grounds for County to disqualify the Contractor from future bid opportunities with County, in addition to any other rights and remedies available to County pursuant to the contract documents. 16. County shall use its best efforts to minimize the construction impacts to existing vegetation in accordance with the attached specifications, but is under no obligation to replace any trees damaged, removed or unsuccessfully relocated due to construction. County shall restore the ground cover on all areas left disturbed by the construction and will remove and discard existing fence. 17. Countryside will designate B representative for the duration of construction effort and for purposes of all notice obligations of the County under the terms of this Agreement. County will keep this person informed of the status of progress of the Optional Wortc, as well as supply this person with all accountings requested pursuant to this Agreement. Upon receipt of record drawings from the contractor for the project, County will furnish these drawings to Countryside. 18. No waiver of, or failure to dam, any breach of this agreement by either party shall be construed as a waiver of any rights or remedies with respect to any subsequent breach of this Agreement. 19. 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 EXHIBIT It Page -6-of-:Z= Agreement Page 5 representatives, successors, successor trustees, and/or assignees, whenever the context so requires or admits. 20. The parties acknowledge and agree that the failure of the proposed Walls, once completed, to conform with Countryside members anticipated appearance of such Walls shall not constitute a breach of this Agreement. 21. The reciprocal obligations contained herein are contingent upon no other provisions, conditions, or premises other than those so stated above; and this written Agreement, including al exhibits attached hereto, shall constitute the entire Agreement and understllnding of the parties, and there are no other prior or contemporaneous written or oral agreements, undertakings, promises. warranties. or covenants not contained herein. \ 22. This Agreement is governed and construed in accordance with the laws of the State of Florida. 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. ~OCK, Clerk BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA BY: rw;J; V~~ -- ~it... .", Ell." T. ",'4 (In$ RK AS TO COUNTRYSIDE: WITNESSES: ~f~'O~'~ Name:CI.~:rJ~~}a (Print) W~~) Name: ~ "'Jl'Au~ (Print) Countryside Master Association, Inc., a Florida not-for.profit corporation By: ~.~'J~-~~ft RIchard . President EXHIBIT -.k. page+of~ DlSTMCt" , ,00' 15.00' '$,00' EXHIJIT .l- ... .:::L.oI.....1- ~ --r- ~ o ISO" MO GRAPHIC SCALE I 'NO secTION 5. TC1tItNSHIP SO SOUTH. ftANGE 15 CAST COUNrRYSlO€ A r BCftKSHI/tC ~KCS PV<T BOOK lB. PACES 1-4. SECTION 4 COLr COURSE lM/NJl'HoWCE rACILtIY 1RACT 'J GCl.I' COURSt TRN:T " u u PARCf:L 700 rCltIPORARY CONST7fVCTlON CASCMENT 52.,"~ SQt.I4/tC fTCT COLT CCJC#lSC rIMer" O.R. /IOOIt '<flU PACE '.'7 D.ff. 110O<< 262' PMX J4J4 P.O.C. CAST I/f CORNCft S-5, T-50-S. R-25-C D.ff. BOOK INJ AOCE: '10 LLCAI. tE!!it:RJPTION ALL IHAr PART OF GOLr CtJURSE TRAcr ,.s. COUNTR'1SIDC AT BERKSIIIRF: LAKeS, PLAr 8O(JK '4 PAGCS '-f, SECTION 4, crJLUCR COUNTY, FLORIDA. AND GOLf COURSC MAIfiTENANCC fACILITY TRACT 'J. COUNTRYSiOC AT BCRKSHIRC LAKl'S. PlAT BOOK '4 PAces 1-4. SCCTION f, CQLLICR COUNTY, FLORIOA. Bl/NG IIORf PART7CIA.ARI. Y ()(SCRI8CO AS raLOM; COI/IIOICING AT THE EASr OUARTFR CDRNCR OF seCTION 5. TOWNSHIP 50 SOUTH. RANGE 26 CAST, COWER COUN TY, FlORIOA; THCNCC SOUTH 811'5YJ8' WEsr 100.00 FFCT TO A POINT ON THC WEST /lICHr OF WAY LIII! or SANTA BNlBARA 8(UEVAIlD (200 roor RlCHT OF WAY) SAID POINT BEING THE POINT or BCCINNINC; THCNCE ALONG SAID rrEST RlGHr or WAY LIN€ SOUTH O'TJ2'2r CAST 1.9,"4' fen THCNCE LCA\IVC SAID rrEST RlCHT OF WA Y LIIK SOUTH M'57'J8' II(ST '5.00 FEcr TO A POINT ON A L1N( 1500 FFCr C'ST OF AND PARALLEl. 11711 SAID II(ST RIGHT OF WAY 1JNC; 1HCNCE ALONG SAID LIE NOIITH 01'02'12' II(ST 1.9J.s.45 FEcr TO A POINT 15.00 fecr ItCST or THE ffCST RlCHT OF WA r LINC or SANTA /lAllBARA 8OIII.CVARO; 'fHCNCC ALONG A LINE 1.s.00 FFCT rrEST OF AND PARALLEL IIITH THE Mf'ST RICHT or WAY LINE OF SAW SANrA BARBARA BOULEVARO NORTH OTTJ2'/S' Ilfsr 1,6".55 rEET,' THCNCC LCAIfNG SAiD UNC NORTH 118'51'f" CAST 15.00 FFCr TO A POINT ON THE IlfST /ilCHr OF WI. Y LIN{ OF SAID SANTA BARBARA BOULEVARO; THCNCC ALONG SAJ() //CST RlGHr OF WA Y LINE SOUTH O'TJ2'15' EAST 1.67455 ra:T TO THE POINT OF t1CGINN1NG. CONTAJNINC 57,1$0.00 SOUARE 1'CCT. MORe OR USS. SlJSLCT TO EASDiENTS ANO RESTRICTIONS OF ReCORD. BCARINCS ARC BASCO ON THE EAST LINt OF seCTION.s. TOWNSHiP 50 SOUTH, RANGe 25 EAST, CQLLICR COUNrY, FLORIOA BEING SOfITH 0/'02'15" EAST. ... NOT A SURVEY ..- PllCPARED BY: until/( RK LEGEND: h "-. "-. "-. "-. "-. "-. ~ =?~~"'i::'::rNT L , . FLORIOA IfEClSlR lS /5627 NOT VALID IJNlESS S1CNED By THe SURVEYOR AND seALCD WITH THe SURVEYOR'S EII8OSSro SEAL CCRrlFICATE or AUTHORIZATION IlB-4J "'" 62 0 . ....,... _............. .---.~- ,-- ......" lie. __b.............=;.:.t:'...~.=-.__ ICItMIfJJ AM .... CII NI11IPH MI/BItIII AI" /If.tt~ ,....". -..IWNI,"'. fI/UtItI_rr MO (t:IW) ". II~ IAn ItlI6. R.O.W. - RIGHT OF WAY P.O.B. = POINT OF BeGlNNlNC P.O.c. . POINT OF CONUENCCutNT ___ 'Wo,Jt... .. ,., COLLIeR COUNTY TRANSPORTA nON. 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