Agenda 12/09/2014 Item #16A 5 12/9/2014 16.A.5.
EXECUTIVE SUMMARY
Recommendation to terminate an easement agreement, dated June 27, 2014, entered into
between Collier County and Jose Luis Carballea for the purchase of a road right-of-way,
drainage and utility easement (Parcel 234RDUE) required for the expansion of Golden
Gate Boulevard from east of Wilson Boulevard to 20th Street East. (Project No. 60040).
OBJECTIVE: To terminate an easement agreement for the purchase of an easement needed for
the four-laning of Golden Gate Boulevard from east of Wilson Boulevard to 20th Street East
("the Project").
CONSIDERATIONS: On June 27, 2014, Collier County entered into an easement agreement
("the agreement") with Jose Luis Carballea (the owner). The agreement provided for the
purchase of Parcel 234RDUE, a road right-of-way, drainage and utility easement required for
construction of the Project. Paragraph 3 of the agreement obliges the owner to obtain executed
instruments releasing two mortgages from or subordinating the mortgages to the interests of the
County in Parcel 234RDUE. Neither the County nor the owner has been able to procure the
requisite releases or subordinations. The second mortgagee has demanded that the entire
proceeds of the closing be paid to it. The first mortgagee has been non-responsive and, because
it has a superior interest, it is highly unlikely that it will agree to any portion of the proceeds
being paid to the second mortgagee.
On October 20, 2014, the owner was notified in writing that unless these mortgage releases or
subordinations were furnished within 14 days, the agreement would be terminated. Staff
recommends termination of the agreement to facilitate condemnation of this parcel in due course
as it will not be possible to close this acquisition.
FISCAL IMPACT: There is no Fiscal Impact associated with this item.
LEGAL CONSIDERATIONS: This item has been approved as to form and legality, and
requires a majority vote for Board approval. -ERP
GROWTH MANAGEMENT IMPACT: There is no Growth Management Impact associated
with this item.
RECOMMENDATION: That the Board of County Commissioners of Collier County terminate
the easement agreement, dated June 27, 2014, and authorize the County Manager or his designee
to furnish written notice of termination to the owner.
Prepared by: Robert Bosch, Right-of-Way Coordinator, Transportation Engineering, GMD.
Attachments: (1) Easement agreement dated June 27, 2014; (2) Letter dated October 20, 2014 to
the owner.
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12/9/2014 16.A.5.
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.16.A.16.A.5.
Item Summary: Recommendation to terminate an easement agreement, dated June 27,
2014, entered into between Collier County and Jose Luis Carballea for the purchase of a road
right-of-way, drainage and utility easement (Parcel 234RDUE) required for the expansion of
Golden Gate Boulevard from east of Wilson Boulevard to 20th Street East. (Project No. 60040).
Meeting Date: 12/9/2014
Prepared By
Name: BoschRobert
Title: Right Of Way Coordinator, Transportation Engineering&Construction Management
11/4/2014 9:54:03 AM
Approved By
Name: PutaansuuGary
Title: Project Manager,Principal, Transportation Engineering&Construction Management
Date: 11/4/2014 10:04:18 AM
Name: HendricksKevin
Title:Manager-Right of Way, Transportation Engineering&Construction Management
Date: 11/5/2014 12:31:56 PM
Name: AhmadJay
Title: Director-Transportation Engineering,Transportation Engineering&Construction Management
Date: 11/5/2014 2:15:10 PM
Name: DelateJoseph
Title:Project Manager, Senior, Transportation Engineering&Construction Management
Date: 11/6/2014 1:1 8:02 PM
Name: TaylorLisa
Title: Management/Budget Analyst,Transportation Administration
Date: 11/12/2014 2:20:43 PM
Name: LynchDiane
Title: Supervisor-Operations, Road Maintenance
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12/9/2014 16.A.5.
Date: 11/17/2014 8:52:05 AM
Name: ShueGene
Title: Director-Operations Support, Transportation Administration
Date: 11/17/2014 10:37:15 AM
Name: GossardTravis
Title: Superintendent-Roads &Bridges, Road Maintenance
Date: 11/17/2014 1:20:24 PM
Name: KearnsAllison
Title: Manager Financial &Operational Support, Transportation Administration
Date: 11/18/2014 3:04:45 PM
Name: CasalanguidaNick
Title: Administrator-Growth Management Div,Business Management&Budget Office
Date: 11/23/2014 10:30:03 PM
Name: PepinEmily
Title: Assistant County Attorney, CAO Litigation
Date: 11/24/2014 2:30:26 PM
Name: KlatzkowJeff
Title: County Attorney,
Date: 11/24/2014 2:44:42 PM
Name: UsherSusan
Title: Management/Budget Analyst, Senior, Office of Management&Budget
Date: 11/25/2014 2:53:25 PM
Name: OchsLeo
Title: County Manager, County Managers Office
Date: 11/30/2014 8:09:13 PM
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PROJECT: 60040
PARCEL No: 234RDL)E
FOLIO No: 39207120000
EASEMENT AGREEMENT
THIS EASEMENT AGREEMENT (hereinafter referred to as the "Agreement") is
made and entered into on this 2:1 VA-c. day of , 2014, by and between
JOSE LUIS CARBALLEA, whose mailing address is 1480 Golden Gate Boulevard East,
Naples, FL 34120-3603 (hereinafter referred to as "Owner"), joined by his spouse,
-.rS5 LDS L XYv/k , and COLLIER COUNTY, a political subdivision of the
State of Florida, whose mailing address is 3299 Tamiami Trail East, do the Office of the
County Attorney, Suite 800, Naples, Florida 34112 (hereinafter referred to as "County").
WHEREAS, County requires a perpetual, non-exclusive road right-of-way, drainage
and utility 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:
$28,000.00
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 (if applicable) 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 (if any), and the cost to cut and cap irrigation lines (if any) extending
into the Easement, and to remove all sprinkler valves and related electrical wiring (if
any), and all other damages in connection with conveyance of said Easement to
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County, including all attorneys' fees, expert witness fees and costs as provided for in
Chapter 73, Florida Statutes.
3. 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. Prior to Closing and as soon after the
execution of this Agreement as is possible, Owner shall provide County with a copy of
any existing title insurance policy and the following documents and instruments
properly executed, witnessed, and notarized where required, in a form acceptable to
County (hereinafter referred to as "Closing Documents"):
(a) Perpetual, Non-Exclusive Road Right-of-Way, Drainage and Utility
Easement;
(b) Instruments required to remove, release or subordinate any and all liens,
exceptions and/or qualifications affecting County's enjoyment of the
Easement;
(c) Closing Statement;
(d) Grantor's Non-Foreign, Taxpayer Identification and "Gap"Affidavit;
(e) W-9 Form; and
(f) 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 of the date of execution of this Agreement or within thirty
(30) days of County's receipt of all Closing Documents, whichever is the later. This
agreement shall remain in full force and effect until Closing shall occur, until and
unless it is terminated for other cause. At Closing, payment shall be made to Owner
in that amount shown on the Closing Statement as "Net Cash to the Seller."
5. Owner agrees to relocate any existing irrigation system located on the Easement
including irrigation lines, electrical wiring and sprinkler valves, etc. (if any), prior to the
construction of the project without any further notification from County. Owner
assumes full responsibility for the relocation of the irrigation system (if any) 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 (if any), 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 all
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improvements located within the Easement area, and yet County is willing to permit
Owner to salvage said 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 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.
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(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.
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 lien-holders and/or easement-holders 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. County shall have sole
discretion as to what constitutes "reasonable processing fees."
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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.
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: Le. \al-114
ATTEST`. BOARD OF COUN COMMISSIONERS
DWIGHT E. BROCK, Clerk COLLIER CO,i N LORIDA
Zv� BY: k
Attest as t� TO N G, Ch.'wan
hairm uty Clerk
signature only.
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AS TO OWNER:
DATED: CD 00-0(4-
ANL --
Witness (Signat.re) JOSE LUIS CA ALLEA
A;7 c-C cctt .
Name (Print or Type)
Witness! /(' ignatu )
AUa ar,cc derticia02-
Name (Print or Type)
JOINED BY HIS SPOUSE:
DATED:
TED
4`i /216 W
Witness (Signature) Spouse (Signature)
to. ,el,act key: vf4
Name (Print or Type) Name (Print or Type)
C � A YQ
Witness (Si nature)
Name (Print or Type)
Approved as to form and legality:
4...A.1 I. Lam. .1 i1i1
Assistant County Attorney
Last Revised:6/3/2013
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CA
EXH L12/9/2014 16.A.5.
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a GOLDEN GATE BOULEVARD (CR 875)
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= PROPOSED ROADWAY, DRAINAGE AND LITILTY EASEMENT (ROUE) / LB N00'30.06"ltV 5.00
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r L8 LN89'31.58TE I 75.01'
LEGAL DESCRIPTION FOR PARCEL 234 ROUE
A PORTION QF TRACT 97. GOLDEN CATE ESTATES. UNIT 45 AS RECORDED !N PLAT BOOK 5. PAGE 78 OF 'THE PUBLIC
RECORDS 01 COWER COuNTY, FLORIDA, LYING IN SECTcoN 2. TOWNSHIP 49 SOLDH, RAGE 27 EAST. COLLIER
COUNTY, =LGRIDA, BEING MDRE 9Ap,r,cutARLY DESCRIBED AS ICU OwS
COMMENCING AT THE NORTHEAST CORNER Cr SAID TRACT 97;
E_NT:E S',2?,'3:'5B7A/. ALONG THE NORTH LINE OF SAID TRACT 97, FOP F...15 C2 REP TO A ROM ON THE EAST LINE
OR THE !AST 75 FEET O THE EAST 180 FEET 01' SAC TRACT 97;
1,4FNCE S.0030.06E,, A.,D\;C.." SAT, EAST ,...NE, FOR 50,00 FEET TO A POINT ON THE SOU T H JNE OF THE NORTH 50
F EL 7 OF SAW TRACT 97 AND THE POINT OF BEGINNING OF INC HEREIN DESCRIBED PARCEL,
THENCE CONT'NUE S C0:30'06E. ALONE, Sk0 EA51- L!NE, FOR 43 03 FEET:
1 HEN:E 3.893058W., "OR 497 FEET,
-HENCE N D0'.10'OETW, FOR 5.00 FEET;
THENCE 5 89'31'58%,. FOR 70.04 FEET TO A POINT ON THE WEST LIE OF THE EAST 180 FEET OF SAID TRACT 97:
-r LCE N a-73006V Al ONG SAID •F "1 L!NE, FOR 38 DO FEET TO A "0 NT ON SAO SOUTH LINE;
THENCE N 89'31581. ALONG SAD SauTH LINE. FOR 75.01 FEET -0 7,-(F. POINT OF BEGINNING OF THE HERE:N
DESCRIBED PARCEL
CON'All4r41:. 2,875 SO,V.:RE FEET, MORE DR I_ESS
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COLLIER COUNTY, FLORIDA rtone 12391597-0575 FAX 1251)55-osTe
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12/9/2014 16.A.5.
Co ler County
Growth Management Division
Transportation Engineering
October 20, 2014
VIA CERTIFIED MAIL AND VIA FEDEX
CERTIFIED RECEIPT NO.: 7004 1160 0001 6098 1112
RETURN RECEIPT REQUESTED
Jose Luis Carballea
1480 Golden Gate Blvd. East
Naples, Florida 34120-3603
Re: Parcel No. 234RDUE: Golden Gate Blvd. Project No. 60040
Dear Mr. Carbal ea:
Paragraph 3 of the Easement Agreement, dated June 27, 2014, entered into between you and
Collier County for the purchase and sale of Project Parcel 234RDUE ("the agreement") reads in
part as follows:
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.
Paragraph 4 of the agreement provides that time is of the essence and that closing should occur
within 90 days of execution of the agreement or within 30 days of Collier County's receipt of all
closing, documents.
In paragraph 6 of the agreement_ both parties agreed to do all things that may be required to give
effect to the agreement immediately when such requirement is made known to them or they are
requested to do so. whichever is the earlier.
As you already know, we have been endeavoring to obtain partial releases or subordination,
consent and joinders from Nationstar Mortgage and Real Time Resolutions, the two mortgagees
who hold mortgages encumbering your property. On October 3, 2014 we received a telephone
call from Jessica Runyon of Real Time Resolutions (telephone no. 214-438-5406), the holder of
the second mortgage encumbering your property, informing us that Real Time Resolutions was
not willing to release or subordinate their mortgage without payment of the full amount of the
proceeds of the closing to them. Miss Runyon also informed us that they had made numerous
attempts to contact you to discuss your arrear mortgage installments but that you were not
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12/9/2014 16.A.5.
responding to their calls. As you know, we have requested on several occasions that you contact
them to address the issue of your arrear installments.
We cannot undertake to pay any portion of the proceeds of the closing to Real Time Resolutions
without Nationstar Mortgage's consent. Thus far we have not had any response from Nationstar
Mortgage, the first mortgagee, to our two separate written requests that they subordinate or
release their mortgage. Note that even if Nationstar did respond, it is extremely unlikely that
they would agree to all of the proceeds being paid to Real Time Resolutions as Nationstar
Mortgage holds the first mortgage.
Your failure to procure duly executed partial releases or subordinations, consents and joinders
from Nationstar Mortgage and from Real Time Resolutions that, upon their recording will
remove, release or subordinate foresaid mortgages from Project Parcel 234RDUE constitutes a
material breach of the agreement. Please note that unless you remedy your breach by furnishing
to us foresaid duly executed documents within 14 days from date hereof, Collier County will
cancel the agreement.
Yours sincerely,
Rorert Bosch
Coordinator—Right of Way Acquisitions
Transportation Engineering Department
Phone: (239) 252-5843; Fax: (239)252-5885
RohmResell icollier2oN ntt,
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