Parcel 160TCEPROJECT: Lely Area Stormwater Improvement
US -41 Naples Manor Ditch (Project #51101)
PARCEL No(s): 160TCE
FOLIO No(s): 62250160000
TEMPORARY EASEMENT AGREEMENT
THIS TEMPORARY EASEMENT AGREEMENT (hereinafter referred to as the
"Agreement ") is made and entered into on this /_ day of
20_1�_, by and between ROGER J. GEMMEN, as TRUSTEE of the ROGER J.
GEMMEN M.D. TRUST U/A dated 8/7/2003, whose mailing address is 2508 Eagle
Lane, Holland, Michigan 49424 -2280, (hereinafter referred to as "Owner "), and
COLLIER COUNTY, a political subdivision of the State of Florida (hereinafter referred
to as "County "), whose mailing address is 3299 Tamiami Trail East, c/o the Office of the
County Attorney, Suite 800, Naples, Florida 34112.
WHEREAS, County requires a Temporary Easement for construction of drainage
and access facilities 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.
Owner shall convey the Easement to County for the sum of $500.00 subject to
the apportionment and distribution of proceeds pursuant to paragraph 7 of this
Agreement (said transaction hereinafter referred to as the "Closing "). Said
payment to Owner, payable by County Warrant, 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, 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.
2. 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 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) Temporary Construction Easement;
of
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(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.
3. 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
extend 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 extensions 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.
4. 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.
5. 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.
Page 3
(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 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.
6. 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.
7. 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. In
accordance with the provisions of Section 201.01, Florida Statutes, concerning
payment of documentary stamp taxes by County, Owner shall further pay all
documentary stamp taxes required on the instrument(s) of transfer, unless the
Easement is acquired under threat of condemnation.
8. Owner agrees to grant the TCE for the purpose of constructing public facilities
adjacent to this area. The term of the TCE shall commence upon the issuance
of Grantee's official Notice to Proceed to its roadway contractor for the
construction of Lely Area Stormwater Improvement —US -41 Naples Manor Ditch
Project #51101, and shall automatically terminate 730 days therefrom.
9. 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,
Page 4
personal representatives, successors, successor trustees, and /or assignees,
whenever the context so requires or admits.
10. 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, its successors and assigns. (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.)
11. Conveyance of the Easement by Owner, or any interest in the property
underlying the Easement, 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.
12. 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.
13. 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: 11,14-11
ATTEST:rt, r
DWI Fi E., SROI%,,, Clerk
.� pu�ty Clerk
Attea�,', as to..Gtra:t�t
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
BY: W. C'J,
FRED W. COYLE, Chairmfid
AS TO OWNER:
D D:
Witness (Signature
St 0,014 Sh?
Name (Print or Type)
ZZ2�n
s�
Witness (Signature)
Co r- %*yrnsha.ci.,
Name (Print or Type)
Approved as to form and
legal sufficiency:
J ff E. )Wright
Assistant County Attorney
r
ROB $ J. 0.15MMEN, personally
and as Trustee
Page 5
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LEGEND
R/W = RIGHT -OF -WAY
O.R. = OFFICIAL RECORDS BOOK
PG. = PAGE •�
P.B. = PLAT BOOK
A.K.A. = ALSO KNOWN AS
NO. = NUMBER
S.R. = STATE ROAD
® = TEMPORARY CONSTRUCTION EASEMENT (TCE)
BLOCK 1
NAPLES MANOR LAKES
P.B. 3 PG. 86
LOT 3
PARCEL NO.
62250120008
X817'
%NORTHERLY LINE
OF LOT 4
LOT 4
PARCEL NO.
\ 62250160000
A
0" \ SOUTHERLY LINE
OF LOT 4
O \
,,O s \ N. 1/2 OF LOT 5
\ °o \ PARCEL NO.
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LEGAL DESCRIPTION
PARCEL 160TCE
A PARCEL OF LAND LYING IN SECTION 29, TOWNSHIP 50 SOUTH, RANGE 26 EAST, COLLIER COUNTY, FLORIDA.
THE WESTERLY 11.00 FEET OF LOT 4, BLOCK ONE, LESS THE NORTHERLY 7.00 FEET AND LESS THE SOUTHERLY 54.00
FEET, AS SHOWN ON THE PLAT OF NAPLES MANOR LAKES, RECORDED IN PLAT BOOK 3, PAGE 86, OF THE PUBLIC
RECORDS OF COLLIER COUNTY, FLORIDA.
CONTAINING 539.0 SQUARE FEET MORE OR LESS.
TECM -ROW
SUBJECT TO EASEMENTS AND RESTRICTIONS OF RECORD. CCD - 20H
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MICHAEL A. WARD PROFESSIONAL SURVEYO AND MAPPER LS# 5301 DAT 51 ED
NOT VALID WITHOUT THE ORIGINAL SIGNATURE & RAISED EMBOSSED SEAL OF A FLORIDA REGISTERED PROFESSIONAL SURVEYOR AND MAPPER.
THIS IS NOT A SURVEY.
JWKwy 24 2011 11:34 AN W.. \2009 \090220.02.00 Noplss Manor Ditch And US -47 Ditch Des4m (IASIP) \0007 Sketch Md Lopp1 Description Prspam6w \Sk tch And Dsesnplions \162 To 179 \160910E.&V
PROJECT: LASIP - NAPLES MANOR DITCHt
SKETCH AND LEGAL DESCRIPTION'i
PARCEL I GOTCE (TEMPORARY CONSTRUCTION EASEMENT) 6610 Willow Park Drive, Suite 200
Naples, Florida 34108
PREPARED FOR: COLLIER COUNTY Phone: (239) 687-0575 FAX: (239) 5974576
LB No.: 6952
JOB NUMBER REVISION SECTION TOWNSHIP RANGE SCALE DATE DRAWN BY FILE NAME SHEET
990220.02.00 0 29 50S 1 26 E 1 " = 40 ' 1 /24/ 1 1 R.A K 16( 1 OF 1