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Agenda 05/12/2015 Item #16A19 EXECUTIVE SUMMARY Recommendation to approve a Temporary Use Agreement to permit the temporary use of a portion of the right-of-way previously acquired for the expansion of County Barn Road from two lanes to four lanes. OBJECTIVE: To permit a property owner from whom right-of-way was acquired for the four- laning of County Barn Road to temporarily use a portion of said right-of-way. CONSIDERATIONS : In 2006 easements required for the expansion of County Barn Road from two lanes to four lanes were taken from Delbert and Nancy Ackerman via condemnation process. A couple years later, in 2008, a settlement between the County and the Ackerman’s was mediated; and a stipulated final judgment was entered with the court which set forth the full compensation which the Ackerman’s were entitled to receive from the County. Shortly after the completion of the acquisition of all of the right-of-way required for the four- laning of County Barn Road, the extension of a six lane Santa Barbara Boulevard from Davis Boulevard to Rattlesnake Hammock Road delayed the widening of County Barn outside of the five year work program. Recently, construction began on the County Barn Road segment of LASIP (the L ely A rea S tormwater I mprovement P roject). The plans and specifications for the LASIP project required the County’s contractor to clear the right-of-way out all the way to the limits of the right-of-way previously acquired for the roadway expansion project. The fence along the County Barn Road frontage of the Ackerman property was removed by the County’s LASIP contractor (as the County was within its rights to do so, having paid for the fencing as part of the Mediated Settlement Agreement and Stipulated Final Judgment.) The many trees located within the fifty (50) foot perpetual road right-of-way, drainage and utility easement were also removed (see attached photo), and the house was exposed to the roadway. Mr. Ackerman has asked if he might be permitted to erect or plant some type of buffer around the circular driveway shown in the photograph until such time as the County needs to make use of its easement. Staff knows of no reason to object to this temporary use and is recommending that the Board of County Commissioners approve the attached Temporary Use Agreement permitting the Ackerman’s the temporary use of a portion of the County’s perpetual easement until such time as the County intends to construct or install improvements in the temporary use area. The agreement includes a hold harmless and indemnification provision requiring the Owner to indemnify the County for claims that may arise from the Owner’s use of the property. Mr. Ackerman also asked if he might have his old fence back. Since the County’s contractor was going to throw it away after he tore it down, staff knows of no reason to object to returning the fence posts and panels to Mr. Ackerman, and placing them on Mr. Ackerman’s remainder property, and is recommending that the Board of County Commissioners approve the return of the fence posts and panels to Mr. Ackerman. Packet Page -680- 5/12/2015 16.A.19. FISCAL IMPACT: There may be a nominal recording fee of $100. GROWTH MANAGEMENT IMPACT: There is no Growth Management Impact associated with this Executive Summary. LEGAL CONSIDERATIONS: This item has been reviewed by the County Attorney, is approved as to form and legality, and requires majority vote for approval. -JAK RECOMMENDATION: That the Board of County Commissioners approves the attached Temporary Use Agreement and authorizes its chairman to execute same on behalf of the Board. Prepared by: Kevin Hendricks, Right-of-Way Acquisition Manager, Transportation Engineering Division, Growth Management Department. Attachments: (1) Photograph; (2) Temporary Use Agreement (with Exhibit); (3) Exhibit; and (4) Stipulated Final Judgment Packet Page -681- 5/12/2015 16.A.19. COLLIER COUNTY Board of County Commissioners Item Number: 16.16.A.16.A.19. Item Summary: Recommendation to approve a Temporary Use Agreement to permit the temporary use of a portion of the right-of-way previously acquired for the expansion of County Barn Road from two lanes to four lanes. Meeting Date: 5/12/2015 Prepared By Name: HendricksKevin Title: Manager - Right of Way, Transportation Engineering & Construction Management 5/1/2015 9:46:59 AM Submitted by Title: Manager - Right of Way, Transportation Engineering & Construction Management Name: HendricksKevin 5/1/2015 9:47:00 AM Approved By Name: LynchDiane Title: Supervisor - Operations, Road Maintenance Date: 5/1/2015 10:02:41 AM Name: ShueGene Title: Division Director - Operations Support, Growth Management Department Date: 5/1/2015 10:40:50 AM Name: TaylorLisa Title: Management/Budget Analyst, Capital Construction & Maintenance Budget/Fiscal Date: 5/1/2015 11:03:13 AM Name: KearnsAllison Title: Manager Financial & Operational Support, Capital Construction & Maintenance Budget/Fiscal Date: 5/1/2015 11:05:49 AM Packet Page -682- 5/12/2015 16.A.19. Name: AhmadJay Title: Division Director - Transportation Eng, Transportation Engineering & Construction Management Date: 5/1/2015 2:55:00 PM Name: KlatzkowJeff Title: County Attorney, Date: 5/1/2015 3:08:23 PM Name: CasalanguidaNick Title: Deputy County Manager, County Managers Office Date: 5/3/2015 9:08:28 AM Name: KlatzkowJeff Title: County Attorney, Date: 5/4/2015 8:29:50 AM Name: IsacksonMark Title: Division Director - Corp Fin & Mgmt Svc, Office of Management & Budget Date: 5/4/2015 10:07:29 AM Name: CasalanguidaNick Title: Deputy County Manager, County Managers Office Date: 5/4/2015 11:29:15 AM Packet Page -683- 5/12/2015 16.A.19. Pa c k e t P a g e - 6 8 4 - 5 / 1 2 / 2 0 1 5 1 6 . A . 1 9 . PROJECT: County Barn Road FOLIO No: 00427440007 TEMPORARY USE AGREEMENT THIS TEMPORARY US E AGREEMENT (hereinafter referred to as the "Agreement") ") is made and entered into on this _____ day of _______________, 20 15 , by and between DELBERT ACKERMAN , an un-remarried widow, whose mailing address is 5610 Cynthia Lane, Naples, Florida34112-2309 (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, Owner is the record title holder to the North One Half (N ½) of the South One Half (S ½) of the Northwest One Quarter (NW ¼) of the Northwest One Quarter (NW ¼) of Section 17, Township 50 South, Range 26 East, LESS the West 1,085 feet thereof, LESS the East 50 feet and the South 20 feet thereof for Right-of - Way (hereinafter referred to as the “Subject Property”); and WHEREAS, pursuant to the Order of Taking signed by Circuit Court Judge, Lawrence D. Martin, (Case No. 06-1124-CA) and the timely deposit into the registry of the court of the sums set forth in the Order of Taking, County acquired a 27 foot Perpetual Non-exclusive Road Right-of -Way, Drainage and Utility Easement (Parcel 113), a 13 foot Perpetual Non-exclusive Drainage and Utility Easement (Parcel 813), and a 10 foot Perpetual Non-exclusive Utility Easement (Parcel 913) over, under, upon and across the east 50 feet of the Subject Property for the purpose of expanding County Barn Road from two lanes to four lanes; and WHEREAS, pursuant to the Mediated Settlement Agreement between Owner and County, Owner later conveyed to County a Perpetual Non-exclusive Road Right-of - Way, Drainage and Utility Easement over Parcels 813 and 913, conveyances which were later ra tified by Stipulated Final Judgment entered with the Court and recorded in Official Records Book 4339, at Page 1420,; and WHEREAS, Owner desires to use a portion of the fifty (50) foot perpetual Road Right-of -Way, Drainage and Utility Easement on a temporary basis with the full understanding that said temporary usage rights will terminate upon notice from the County; and WHEREAS, County will permit Owner to use a portion of the fifty (50) foot perpetual Road Right-of -Way, Drainage and Utility Easement temporarily, until such time as County utilizes the temporary use area depicted on Exhibit “A” (attached hereto and made a part hereof ); and Packet Page -685- 5/12/2015 16.A.19. Page 2 WHEREAS, County and Owner agree that there will be no fee, charge or payment to County in exchange for Owner’s temporary us e of a portion of the County’s fifty (50) foot perpetual Road Right-of -Way, Drainage and Utility 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. RECITALS - All of the above recitals and Exhibits are true and correct and are hereby expressly incorporated herein by reference as if set forth fully below, and are made a part of this Agreement. 2. EFFECTIVE DATE - This Agreement shall be effective as of the date first set forth above 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. 3. TERMINATION - County has the unilateral right to terminate this Agreement at will by providing Owner with one hundred and eighty (180) calendar days notice of its intent to construct and/or install improvements in the temporary us e area depicted on the Exhibit attached hereto. Any and all improvements located within the temporary us e area at the end of the 180 day notice period shall be deemed to have been abandoned by Owner and may be removed and disposed of by County with no payment to or recourse by Owner. 4. HOLD HARMLESS & INDEMNIFICATION – OWNER agrees to release from liability, and to hold harmless COUNTY, it’s employees and agents against any and all claims brought by or on behalf of the OWNER, its employees, contractors, any person, or other legal entity which may arise from the OWNER’S use of the demised premises and will further hold harmless, indemnify and defend the COUNTY, its' agents, participants, contractors or employees, from all costs, attorney's fees, expenses, and liabilities incurred as a result of any claim or proceeding brought thereon. 5. LEGAL MATTERS – In the event either party hereto shall institute legal proceedings in connection with, or for the enforcement of, this Agreement, the prevailing party shall be entitled to recover its costs of suit, including reasonable attorney's fees, at both trial and appellate levels. This Agreement may be recorded by the County in the Official Records of Collier County, Florida. Owner shall pay all costs of recording this Agreement prior to the execution of this Agreement. A copy of the Recorded Agreement will be provided to the Owner. This Agreement is t he entire agreement between the parties, and supersedes all previous oral and written representations, agreements and understandings between the parties. This Agreement shall be governed by the laws of the State of Florida, and may not be altered or amended in any way, save by written agreement signed by both parties. Packet Page -686- 5/12/2015 16.A.19. Page 3 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first above written. AS TO COUNTY: DATED: _______________ ATTEST: BOARD OF COUNTY COMMISSIONERS DWIGHT E. BROCK, Clerk COLLIER COUNTY, FLORIDA By: ________________________ By : _____________________________ , Deputy Clerk TIM NANCE, Chairman AS TO OWNER: DATED: _______________ ____________________ Witness (Signature) DELBERT ACKERMAN Name (Print or Type) Witness (Signature) Name (Print or Type) STATE OF _________________ COUNTY OF _______________ The foregoing Temporary Use Agreement was acknowledged before me this ______ day of __________________, 20____, by ____________________________, who: _____ is personally known to me OR _____ produced __________________________________________as proof of identity. Packet Page -687- 5/12/2015 16.A.19. Page 4 (affix notarial seal) __________________________________ (Signature of Notary Public) __________________________________ (Print Name of Notary Public) Serial / Commission # (if any):__________ My Commission Expires: ______________ Approved as to form and legality: Jeffrey A. Klatzkow, County Attorney Packet Page -688- 5/12/2015 16.A.19. 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