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Resolution 2011-063 RESOLUTION NO. 2011- 63 A RESOLUTION AUTHORIZING THE ACQUISITION BY GIFT OR PURCHASE OF THOSE PERPETUAL AND TEMPORARY EASEMENT INTERESTS NECESSARY FOR THE CONSTRUCTION OF STORMWATER IMPROVEMENTS KNOWN AS THE US-41 DITCH SEGMENT OF THE LELY AREA STORMWATER IMPROVEMENT PROJECT. (PROJECT NO. 51101.) WHEREAS, on June 8, 2004, the Board of County Commissioners of Collier County, Florida adopted Resolution No. 2004-205, authorizing the acquisition by gift or purchase of land and easements required for the construction of stormwater improvements known as the Lely Area Stormwater Improvement Project ("LASIP"), located in east Naples; and WHEREAS, since the adoption of the aforesaid resolution several segments of the LASIP project have been designed and permitted, the land and easements have been acquired, and in many cases the construction has already been completed; and WHEREAS, plans and specifications have been prepared for construction of stormwater improvements known as the US-41 Ditch segment (the "US-4l Ditch") of LASIP, which require easements to be acquired before construction may begin; and WHEREAS, estimates of the cost of easement acquisition required for the US-4l Ditch have recently been completed; and WHEREAS, the Board of County Commissioners, after considering the current estimated cost of acquiring the property rights necessary to begin construction on the US-4l Ditch, desires to reaffirm the delegation of authority to acquire said easements by gift or purchase; and WHEREAS, the acquisition of the easements and the construction of the US-4l Ditch within the boundaries depicted in Exhibit "A", attached hereto and incorporated herein, is in the best interests of the citizens of Collier County. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that: I. The Board has determined that construction of storm water improvements known as the US-4l Ditch segment of the Lely Area Storm water Improvement Project, Project No. 51101, is necessary and in the public's best interest in order to protect the health, safety and welfare of the citizens of Collier County. 2. The acquisition of various easement interests required for the construction of the US-41 Ditch is an integral part of the County's long range planning effort, and is included in the Capital Improvement Element of the Collier County Growth Management Plan, as approved by the Florida Department of Community Affairs. 3. It is necessary and in the best interest of Collier County for the Board to authorize the acquisition of drainage easements and temporary construction easements to enable construction of storm water improvements known as the US-4l Ditch within the project boundaries identified in Exhibit "A" (attached hereto and by reference made a part hereof), and the County Manager or his designee is hereby authorized and directed to acquire said easements by either gift or purchase. 4. The Board hereby directs the County Manager or his designee to make purchase offers to property owners for the easements required to construct foresaid segments of LASIP, which otTers shall be based upon estimates of the market value of the subject real estate which have been developed by licensed state-certitied general real estate appraisers. 5. In view of the ditTerences of opinions between real estate appraisers regarding market value and full compensation to property owners, and in view of the cost of condemnation, the Board hereby authorizes the County Manager or his designee to approve purchases of easements -Page 2- where the property owner has agreed to sell to the County at, or up to twenty tive percent (25%) above the County's full compensation estimate, with the maximum approval authority not to exceed $50,000 over the County's appraiser's full compensation estimate, and the Board hereby authorizes the approval and execution of Closing Statements related to said transactions by the County Manager or his designee. Any and all purchases in excess of one hundred and twenty- five percent (125%) of the appraiser's full compensation estimate, or in excess of $50,000 above the appraiser's full compensation estimate, whichever amount is the lesser of the two, shall require separate Board approval. 6. The Board hereby authorizes its Chairman, and any subsequent Chairman for the life of the Project, upon the approval of the Office of the County Attorney as to form and legal sufficiency, to execute real property conveyance agreements and subordinations of utility interests incorporating agreements for reimbursement for additional facilities relocation, in substantially the same form as that Sample Real Property Conveyance Agreement and that Sample Subordination of Utility Interests and Agreement for Reimbursement for Additional Facilities Relocation, attached hereto as Exhibits "B" and "C" respectively and made a part hereof, and/or other documents approved by the Office of the County Attorney to close real estate transactions, where the property owner has agreed to sell to the County at appraised value, or within the parameters stipulated in Paragraph 5 (above). 7. Said authority is delegated by the Board to the extent that such delegation does not conflict with the provisions of Section 125.355, Florida Statutes. 8. The Board hereby authorizes the Finance Department to issue warrants, and/or to make wire transfers, payable to the property owner(s) of record, to title companies and attorneys -Page 3- closing real estate transactions, and to others who may possess an equitable interest in the subject real property parcels in those amounts as shall be specified on a Closing Statement. 9. All title to real property which has been acquired in the manner described above shall be deemed "accepted" by the Board of County Commissioners, as the governing body of Collier County, Florida, a political subdivision of the State of Florida, and as such, staff is hereby authorized to record in the Public Records of Collier County, Florida, conveyance instruments such as easements, as well as any other instrumcnts that may be required to remove, release or subordinate the lien of any encumbrance on the subject real estate, in order to effect constructive notice of the County's interest in real property. This Resolution, adopted on this 11 ",b day of N.'<\~ ( I:{ , 2011, after motion, second and majority vote. ATTEST: DWIGHT E..):tRO<S:K,'<:;J.-ERK \o~~CL AttiJ;;t :I~" tl):-Cb4l'r.,.1:' t. .lllnatU;-~9Il,1. .:,-','.. BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA By: MW ~ FRED W. COYLE, CHAIR" N ..... I' . Approved as to form and legal sufficiency: :f!d', ' /\ . . . ---, 'f E,wRIG,HT Ass! ant County Attorney .Page 4- < 10l a: < z o i= Iii :J Cl U < I- Z 10l <~ 1-1Ol - III a:l< i:1Ol XCl lOlZ ~ o :J: III Q. < ~ Z o !;: u o ..... ~ ii!!'.: z o i=< !!!~ a< u < EXHIBIT "B" SAMPLE REAL PROPERTY CONVEYANCE AGREEMENT THIS AGREEMENT (hereinafter referred to as the "Agreement") is made and entered into on this day of , 20_, by and between , whose mailing address is , (hereinafter referred to as "Owner"), and COLLIER COUNTY, a political subdivision of the State of Florida, whose mailing address is 3299 Tamiami Trail East, c/o the Office of the County Attorney, Suite 800, Naples, Florida 34112 (hereinafter referred to as "County"), WHEREAS, County requires an 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 County for the stated purposes, on the terms and conditions set forth herein; and WHEREAS, County 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 Easement to County for the sum of: $ subject to the apportionment and distribution of proceeds pursuant to Paragraph 9 of this Agreement (said transaction hereinafter referred to as the "Closing"), Said payment to Owner, payable by County Warrant or funds wire transfer, shall be full compensation for the Easement conveyed, including all landscaping, trees, shrubs, improvements, and fix1ures 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 Easement, and to remove all sprinkler valves and related electrical wiring, and all other damages in connection with conveyance of said Easement to County, including all attorneys' fees, expert witness fees and costs as provided for in Chapter 73, Florida Statutes, 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 Page 2 their recording in the public records of Collier County, Florida, At or prior to Closing, Owner shall provide County with a copy of any existing prior title insurance policies, Owner shall cause to be delivered to County 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 County, County's counsel and/or title company, 4, Both Owner and County agree that time is of the essence, Therefore, Closing shall occur within ninety (90) days from the date of execution of this Agreement by the County; provided, however, that County 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 County's enjoyment of the Easement. Such right to ex1end may be exercised by the County Manager or his designee for an additional term not exceeding ninety (90) days without further Board action, All additional ex1ensions must be Board approved, At Closing, payment shall be made to Owner in that amount shown on the Closing Statement as "Net Cash to the Seller," and Owner shall deliver the Closing Documents to County in a form acceptable to County, 5, Owner agrees to relocate any existing irrigation system located on the Easement including irrigation lines, electrical wiring and sprinkler valves, etc" prior to the construction of the project without any further notification from County, 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 Easement, the Owner is responsible for their retrieval prior to the construction of the project without any further notification from County, Owner acknowledges that County has compensated Owner for the value of the Improvements and yet County 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 Easement prior to Page 3 commencement of construction of the project shall be deemed abandoned by Owner. This provision shall survive Closing and is not deemed satisfied by conveyance of title, 6, Owner and County 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. 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) County'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 County 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 County to such conveyance, encumbrance, or agreement, which consent may be withheld by County 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 County in writing prior to the effective date of this Agreement. (g) County 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 Page 4 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 County. (h) 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 County; 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 County, 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. 8, Owner shall indemnify, defend, save and hold harmless the County against and from, and reimburse the County 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 County 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, County shall pay all fees to record any curative instruments required to clear title, and all Easement instrument recording fees. In addition, County may elect to pay reasonable processing fees required by mortgagees in connection with the execution and delivery of 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 due to any diminution in the value of its property right, 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. 10, There shall be deducted from the proceeds of sale all prior year ad valorem taxes and assessments levied against the parent tract property which remain unpaid as of the date of Closing, Furthermore, in accordance with the exemptions provided for in Section 201,01, Florida Statutes, concerning payment of documentary stamp taxes Page 5 by County, Owner shall pay all documentary stamp taxes required on the instrument(s) of transfer. 11, 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, 12, 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, subject to the penalties prescribed for perjury, 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 County, (If the corporation is registered 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,) 13. 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 County, 14, 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, 15, This Agreement is governed and construed in accordance with the laws of the State of Florida, IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first above written, AS TO COUNTY: DATED: ATTEST: DWIGHT E, BROCK, Clerk BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA BY: Deputy Clerk , Chairman Page 6 AS TO OWNER: DATED: Witness (Signature) Name (Print or Type) Witness (Signature) Name (Print or Type) Approved as to form and legal sufficiency: Assistant County Attorney Last Revised: 10/15/10 EXHIBIT "c" SAMPLE SUBORDINATION OF UTILITY INTERESTS AND AGREEMENT FOR REIMBURSEMENT FOR ADDITIONAL FACILITY RELOCATIONS THIS AGREEMENT, entered into this _ day of ,20__, by and between COLLIER COUNTY, a political subdivision of the State of Florida (hereinafter referred to as "County"), and [NAME OF UTILITY PROVIDERl (hereinafter referred to as "Utility"), W ITN ESE TH: WHEREAS, the Utility presently has an interest in certain lands that have been determined necessary for highway purposes; and WHEREAS, the proposed use of these lands for highway purposes will require subordination of the interest claimed in such lands by Utility to the County; and WHEREAS, the County is willing to pay for the initial relocation of the Utility's facilities within the public right-of-way to prevent conflict between the County's use and the Utility's use, and for the benefit of each, and WHEREAS the County, in recognition of the Utility's interest in the certain lands, is willing to pay for any future relocation of the Utility's facilities from or within the entire width of the public right-of~way shown on Exhibit "A", attached hereto and made a part hereoj~ NOW, THEREFORE, in consideration of the mutual covenants and promises of the parties hereto, Utility and the County agree as follows: UTILITY subordinates any and all of its interest in its easement lands described on "EXHIBIT A" attached hereto and made a part hereof, to the interest of the County, or its successors, for the purpose of constructing, improving, maintaining and operating a road over, through, upon, and/or across such lands, based on the following: ~ NATURE OF DATE FROM OR AGAINST IN FAVOR OF RECORDED ENCUMBRANCE BOOK, PAGE - The County and the Utility further agree that: I. "Public right-of~way", as used herein, shall mean that area which is described in Exhibit "A" and which includes the Utility's easements identified above and additional lands for public right-of-way, as described in Exhibit "A", attached hereto and made a part hereof. 2, The Utility shall have the right to construct, operate, maintain, improve, add to, upgrade, remove, and relocate facilities on, within, and upon the public right-of-way described in Exhibit "A", in accordance with the County's current minimum standards for such facilitics as ofthe date of this agreement. Any new construction or relocation of facilities within the public right-of-way will be subject to prior approval by the County. 3, The County shall pay for the relocation of existing facilities, In addition, the Utility retains the right to be reimbursed, either now or in the future, for additional relocation or adjustment of its facilities located presently or to be located on the public right-of-way described in Exhibit "A", if such relocation or adjustment is caused by present or future uses of the right-of-way by the County or its assigns, including, but not limited to, the cost of acquiring replacement casements, 4. The Utility shall have the right to enter upon the lands described in Exhibit "A" for the purposes outlined in Paragraph 2 above, including the right to trim such trees. brush, and growth which might endanger or interfere with such facilities, The County shall provide and insure access to said lands by the Utility, 5, The Utility af,'fees to repair any damage (0 County facilities and to indemnify the County against any loss or damage resulting from the Utility exercising its rights to construct, operate, maintain, improve, add to, upgrade or remove its facilities on the said public right-of-way. 6, This Agreement shall not be assigned by the County except to the State of Florida, IN WITNESS WHEREOF, the parties hereto have executed this Subordination of Utility Interests and Agreement for Reimbursement for Additional Facility Relocations on the day and year first above written, ATTEST: DWIGHT E, BROCK, Clerk BOARD OF COUNTY COMM]SSIONERS COLLIER COUNTY, FLORIDA BY: , Deputy Clerk , CHAIRMAN Signed, sealed and delivered in the presence of: By: Print Name: By: Title: Print Name: By: Print Name: (Corporate Seal) 2 Utility Subordination Agreement STATE OF COUNTY OF I hereby certify that on this day, before me, an otllcer duly authorized to take acknowledgements, personally appeared , to me known and personally known to me to be the person described in, and did not take an oath and who executed the foregoing instrument as the ____ of _ and acknowledged beforc me that he executed the same as such official in the name and on behalf of said Corporation, WITNESS my hand and official seal in the County and State aforesaid this __ day of , 20 (affix notarial seal) (Signature of Notary Public) (Print Name of Notary Public) Serial! Commission # (if any): My Commission Expires: Approved as to fonn and legal sufficiency: Assistant County Attorney ., " Utilit~y Subordination Agreement