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Agenda 02/22/2011 Item #16E1 2/22/2011 Item 16.E.1. EXECUTIVE SUMMARY Recommendation to approve a Right-of-Way Consent Agreement and Memorandum of Right-of-Way Consent Agreement from Florida Power & Light Company for access on, over and across a portion of Freedom Park. OBJECTIVE: That the Board of County Commissioners of Collier County, Florida (Board) approve the attached Right-of-Way Consent Agreement and Memorandum of Right-of-Way Consent Agreement from Florida Power & Light Company. The public purpose is to secure additional easement area for the construction and maintenance of a walkway near the Freedom Park Memorial located along Goodlette-Frank Road in Naples. CONSIDERATIONS: Approval of this Agreement will further the process of providing and improving an existing walkway path to the Memorial site. The Florida Power & Light Company (FPL), as first right easement holder over the property at this location, has expressed no objection to the proposed easement location. A copy of the FPL Right-of-Way Consent Agreement is attached. The attached Right-ot-Way Consent Agreement and Memorandum of Right-ot-Way Consent Agreement have been reviewed and approved by the Facilities Management Department and the County Attorney's Office. A location map of the proposed Easement area is attached for ease of reference. LEGAL CONSIDERATIONS: The attached documents have been approved for form and legal sufficiency. This item requires a simple majority vote for approval, and is legally sufficient for Board action. RNZ FISCAL IMPACT: The total cost should not exceed $35.50 tor recording. Funds are available in Fund 620, Freedom Memorial Donation. GROWTH MANAGEMENT IMPACT: There is no growth management impact associated with this Executive Summary. RECOMMENDATION: That the Board of County Commissioners of Collier County, Florida approves and authorizes the Chairman to execute the Right-of-Way Consent Agreement, and Memorandum of Right-of-Way Consent Agreement; and direct the County Manager or his designee to proceed to record the Memorandum of Right-of-Way Consent Agreement in the Public Records of Collier County, Florida. PREPARED BY: Gary Bigelow, Property Acquisition Specialist Real Property Management/Department of Facilities Management! Administrative Services Division ATTACHMENTS: (1) Right-of-Way Consent Agreement; (2) Memorandum of Right-of-Way Consent Agreement; and (3) Location Map Packet Page -955- 2/22/2011 Item 16.E.1. COLLIER COUNTY Board of County Commissioners Item Number: 16.E.l. Item Summary: Recommendation to approve a Right-of-Way Consent Agreement and Memorandum of Right-of-Way Consent Agreement from Florida Power & Light Company for access on, over and across a portion of Freedom Park. Meeting Date: 2/22/2011 Prepared By Name: BigelowGary Title: Property Acquisition Specialist,Facilities Managem 1/24/2011 8:52:01 AM Approved By Name: SmithKristen Title: Administrative Secretary,Risk Management Date: 1/24/2011 10:54:07 AM Name: NesbittClaude Title: Project Manager, Senior,Facilities Management Date: 1/24/2011 10:59:53 AM Name: CampSkip Title: Director - Facilities Management,Facilities Manage Date: 1/24/2011 4:58:36 PM Name: DowlingMicheal Title: Property Management Specialist, Senior,Facilities Date: 1/27/2011 9:14:32 AM Name: BigelowGary Title: Property Acquisition Specialist,Facilities Managem Date: 1/28/2011 10:31 :54 AM Name: ZacharyRobert Title: Assistant County Attorney,County Attorney Date: 1/31/2011 11 :48:40 AM Packet Page -956- 2/22/2011 Item 16.E.1. Name: PriceLen Title: Administrator - Administrative Services, Date: 2/3/2011 3:57:44 PM Name: GreenwaldRandy Title: ManagementlBudget Analyst,Office of Management & B Date: 2/3/2011 4:22:29 PM Name: KlatzkowJeff Title: County Attorney, Date: 2/10/2011 10:20:44 AM Name: OchsLeo Title: County Manager Date: 2/13/20116:]8:18 PM Packet Page -957- 2/22/2011 Item 16.E.1. This Instrument Prepared By: Mark Byers CRE/AOW Florida Power & Light Company P.O. BOX 1119 Sarasota, FL 34230 Line No: 8B Parcel No: 3 Line Name: Collier-Naples #1 138kv S1ructure No.: 147M4-148M8 Section, Township, Range: 27-49-25 RIGHT-OF-WAY CONSENT AGREEMENT FLORIDA POWER & LIGHT COMPANY, a Florida corporation, whose mailing address is P.O. Box 14000, Juno Beach, Florida 33408-0420, Attn: Corporate Real Estate Department, hereinafter referred to as "Company", hereby consents to Collier County, a political subdivision of the State of Florida, whose mailing address is 3335 Tamiami Trail East, Suite 101, Naples, Florida 34112-5356, hereinafter referred to as "Licensee", using an area within Company's right-of-way granted by that certain agreement recorded in OR Book 2868, at 3126, of the Public Records of Collier County, Florida The said area within Company's right-of-way, hereinafter referred to as "Lands". The use of the Lands by Licensee, shall be solely for the purpose of an eight (8) foot wide concrete paver pathway as submitted by Licensee, attached hereto as Exhibit "A". In consideration for Company's consent and for the other mutual covenants set forth below, and for Ten Dollars and No Cents ($10.00) and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto agree as follows: 1. Licensee agrees to obtain all necessary rights from the owners of the Lands in the event Licensee does not own said Lands; to obtain any and all applicable federal, state, and local permits required in connection with Licensee's use of the Lands; and at all times, to comply with all requirements of all federal, state, and local laws, ordinances, rules and regulations applicable or pertaining to the use of the Lands by Licensee pursuant to this Agreement. 2. Licensee understands and agrees that the use of the Lands pursuant to this Agreement is subordinate to the rights and interest of Company in and to the Lands and agrees to notify its employees, agents, and contractors accordingly. Company specifically reserves the right to maintain its facilities located on the Lands; to make improvements; add additional facilities; maintain, cons1ruct or alter roads; maintain any facilities, devices, or improvements on the Lands which aid in or are necessary to Company's business or operations; and the right to enter upon the Lands at all times for such purposes. Licensee understands that in the exercise of such rights and interest, Company from time-to-time may require Licensee, to relocate, alter, or remove its facilities and equipment, including parking spaces and areas, and other improvements made by Licensee pursuant to this Agreement which interfere with or prevent Company, in its opinion, from properly and safely constructing, improving, and maintaining its facilities. Licensee agrees to relocate, alter, or remove said facilities, equipment, parking spaces and areas, and other improvements within thirty (30) days of receiving notice from Company to do so. Such relocation, alteration, or removal will be made at the sole cost and expense of Licensee and at no cost and expense to Company; provided however, should Licensee, for any reason, fail to make such relocation, alteration, or Form 3740 Rev. 10/9/95 Page 1 of 5 Packet Page -958- 2/22/2011 Item 16.E.1. removal, Company retains the right to enter upon the Lands and make said relocation, alteration, or removal of Licensee's facilities, equipment, parking spaces and areas, and other improvements and Licensee hereby agrees to reimburse Company for all of its costs and expense incurred in connection therewith upon demand. 3. . Licensee agrees that it will not use the Lands in any manner which, in the opinion of Company, may tend to interfere with Company's use of the Lands or may tend to cause a hazardous condition to exist. Licensee agrees that no hazardous substance, as the term is defined in Section 101 (14) of the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA") (42 USC Section 9601 [14]), petroleum products, liquids or flammables shall be placed on, under, transported across or stored on the Lands, which restricts, impairs, interferes with, or hinders the use of the Lands by Company or the exercise by Company of any of its rights thereto. Licensee agrees further that in the event it should create a hazardous condition, then upon notification by Company, Licensee shall, within seventy-two (72) hours, at its sole cost and expense, correct such condition or situation; provided however that the Company retains the right to enter upon the Lands and correct any such condition or situation at any time and, by its execution hereof, Licensee hereby agrees to indemnify and hold harmless Company from all loss, damage or injury resulting from Licensee's failure to comply with the provisions of this Agreement. 4. Licensee hereby agrees and covenants to prohibit its agents, employees, and contractors from using any tools, equipment, or machinery on the Lands capable of extending greater than fourteen (14) feet above existing grade and further agrees that no dynamite or other explosives shall be used within the Lands and that no alteration of the existing terrain, including the use of the Lands by Licensee as provided herein, shall be made which will result in preventing Company access to its facilities located within said Lands. Unless otherwise provided herein, Licensee agrees to maintain a forty (40) foot wide setback, twenty (20) feet on each side, from Company's facilities. 5. Trees, shrubs, and other foliage planted or to be planted upon the Lands by Licensee are not to exceed, at maturity, a height of fourteen (14) feet above existing grade. Licensee hereby agrees to maintain the height of all vegetation on the Lands at a height not to exceed fourteen (14) feet above existing grade. 6. Outdoor lighting installed or to be installed upon the Lands by Licensee are not to exceed a height offourteen (14) feet above existing grade and all poles or standards supporting light fixtures are to be of a non-metallic material. 7. Sprinkler systems installed or to be installed by Licensee upon the Lands are to be constructed of a non-metallic material and sprinkler heads are to be set so the spray height does not exceed fourteen (14) feet above existing grade and does not make contact with any Company's facilities. Aboveground systems shall not be installed within or across Company patrol or finger roads and underground systems crossing said patrol and finger roads are to be buried at a minimum depth of one (1) foot below existing road grade. 8. Licensee agrees to warn its employees, agents, contractors and invitees of the fact that the electrical facilities and appurtenances installed or to be installed by Company within the Lands are of high voltage electricity and agrees to use all safety and precautionary measures when working under or near Company's facilities. 9. Licensee agrees, at all times, to maintain and keep the Lands clean and free of debris. Except as provided herein, Licensee further understands and agrees that certain uses of the Lands are Form 3740 Rev. 10/9/95 Page 2 of 5 Packet Page -959- 2/22/2011 Item 16.E.1. specifically prohibited; such uses include but are not limited to recreational purposes, hunting and camping, and Licensee agrees to notify its employees, agents, contractors, and invitees accordingly. 10. The use of the Lands by Licensee shall be at the sole risk and expense of Licensee, and Company is specifically relieved of any responsibility for damage or loss to Licensee or other persons resulting from Company's use of the Lands for its purposes. II. Notwithstanding any provision contained herein, Licensee agrees to reimburse Company for all cost and expense for any damage to Company's facilities resulting from Licensee's use of the Lands and agrees that if, in the opinion of Company, it becomes necessary as a result of Licensee's use of the Lands for Company to relocate, rearrange or change any of its facilities, to promptly reimburse Company for all cost and expense involved with such relocation, rearrangement or change. 12. To the extent provided for in section 768.28, Florida Statutes, Licensee agrees it will exercise its privileges hereunder at its own sole risk and agrees to indemnify and save harmless Company, its parent, subsidiaries, affiliates, and their respective officers, directors, agents and employees (hereinafter referred to as FPL Entities), from all liability, loss, cost, and expense, including attorneys' fees, which may be sustained by FPL Entities to any person, natural or artificial, by reason of the death of or injury to any person or damage to any property except those due to or caused by the negligence of FPL Entities, arising' out of or in connection with the herein described purposes by Licensee, its contractors, agents, or employees; and Licensee agrees to defend at its sole cost and expense and at no cost and expense to FPL Entities any and all suits or action instituted against FPL Entities, for the imposition of such liability, loss, cost and expense. 13. Licensee is self insured for all liability claims and related expenses pursuant to the provisions of Section 111.072 and 768.28, Florida Statutes. . 14. This Agreement will become effective upon execution by Company and Licensee and will remain in full force and effect until completion of Licensee's use of the Lands pursuant to this Agreement, unless earlier terminated upon ninety ( 90 ) days written notice by Company to Licensee, or at the option of Company, immediately upon Licensee failing to comply with or to abide by any or all of the provisions contained herein. IS. The use granted herein as shown on Exhibit "A" shall be under construction by Licensee within 3 years of the effective date of this Agreement and the construction shall be diligently pursued to completion. Licensee shall give Company ten (10) days prior written notice of its commencement of construction. "Under construction" is the continuous physical activity of placing the foundation or continuation of construction above the foundation of any structure or improvement permitted hereunder. Under construction does not include application for or obtaining a building permit, a site plan approval or zoning approval from the appropriate local government agency having jurisdiction over the activity, purchasing construction materials, placing such construction materials on the site, clearing or grading the site (if permitted) in anticipation of construction, site surveying, landscaping work or reactivating construction after substantially all construction activity has remained stopped for a period of two (2) months or more. Licensee acknowledges that failure to have the use under construction within the one (I) year time period will result in immediate termination of this Agreement in accordance with Paragraph 14 herein for failing to comply with the provisions contained herein unless Licensor grants a written extension for a mutually agreed upon time. Any request for an extension of time shall be submitted in writing by Licensee no later than thirty (30) days prior to the expiration of the one (1) year period for the project to be under construction. Form 3740 Rev. 10/9/9S Page 3 of 5 Packet Page -960- 2/22/2011 Item 16.E.1. 16. The tenn "Licensee" shall be construed as embracing such number and gender as the character of the party or parties require(s) and the obligations contained herein shall be absolute and primary and shall be complete and binding as to each, including its successors and assigns, upon this Agreement being executed by Licensee and subject to no conditions precedent or otherwise. 17. Should any provision of this Agreement be detennined by a court of competent jurisdiction to be illegal or in conflict with any applicable law, the validity of the remaining provisions shall not be impaired. In the event of any litigation arising out of enforcement of this Consent Agreement, the prevailing party in such litigation shall be entitled to recovery of all costs, including reasonable attorneys' fees subject to the limitations ofliability established in Section 768.28, Florida Statutes. 18. Licensee may assign its rights and obligations under this Agreement to a solvent party upon prior written consent of the company, which consent shall not be unreasonably withheld. The parties have executed this Agreement this ~ay of dMVmc; ,20..!J. wnn~~ ~ Signature: By: Its: West Area Real Estate M Print Name: f..os E MA7c-.t G" NO'vA1<:.- Print Name: Mark L. Byers (Acknowledgements Continued on Next Page) Form 3740 Rev. 10/9/95 Page 4 of 5 Packet Page -961- 2/22/2011 Item 16.E.1. Approved and accepted for and behalf of Collier County, Florida, this _ day of , 20 II. (Official Seal) ATTEST: BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA DWIGHT E. BROCK, Clerk , Deputy Clerk BY: FRED W. COYLE, Chainnan BY: APPROVED AS TO FORM AND~CY BY: A~ RO ERT N. Y, Assistant County Attorney Form ~A40 Rev. 10/9/95 Page 5 of 5 Packet Page -962- 59 ~~ C>o ~~ 2/22/2011 Item 16.E.1. . ,/;i?,fiC,~".~ 5 ~ ~ I 'Ci) .;; 15 - r:: Q) E Q) C) Cll r:: Cll C!; :!E :; ..r:: .., ~ .g E .15", 2 C> li:~ ., ....: J!... ~ ~ ~ r:: fjo;q 11 co ff3@ .....:i c.2 ;2';.,1, ~ I.l) ~ ~ 0 !l;;o ~ ca ~-~ ~ :!:u U ~B"58t.11>. 0 o~ en .- C) '"' N US.... ~ ~g 5 ~~j:t;) zs U >l Iiol C::U - ....... ... II ocn-o l'l~ !l;!;:;:LUl1. ::r: =.<:1 U Clr:: 6..\ otLC>~ CJ 0 If 0 if II 0... -.9 a::: '2 Cll :z:~ .... ==tinli:' ~ w Q)C)~O> 0 iSda:~ p:: :::::i Q) ,5 ::l 'i" 0 .....J.s 2 z;; 0 o C)Cll:iS!5 I U r::_ 00'= .... we.. NI>. .... 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This Instrument Prepared By: Mark Byers, CRE/AOW Florida Power & Light Company P.O. BOX 1119 Sarasota, FL 34230 THIS SPACE RESERVED FOR RECORDING MEMORANDUM OF RIGHT-OF-WAY CONSENT AGREEMENT THIS MEMORANDUM OF RIGHT -OF - WAY CONSENT AGREEMENT dated this _ day of , 20_, by and between COLLIER COUNTY, FLORIDA, a political subdivision of the State of Florida, acting by and through its Board of County Commissioners, the governing body thereof (hereinafter referred to as "Licensee"), and FLORIDA POWER & LIGHT COMPANY, a Florida corporation (hereinafter referred to as "Company"). WITNESSETH: WHEREAS, on the _ day of , 20_ Company and Licensee entered into a written Right-of-Way Consent Agreement, hereinafter referred to as the "Agreement" related to certain property situated in the County of Collier, State of Florida as more particularly set forth in said Agreement and described in Exhibit "A" attached hereto and made a part hereof and hereinafter referred to as the "Lands", and WHEREAS, the parties are desirous of placing their interest therein as a matter of public record. NOW THEREFORE, in consideration of the mutual covenants herein contained and the parties intending to be legally bound thereby, the parties hereto agree as follows: 1. The property described in Exhibit "A" is subject to a right-of-way in favor of Company recorded in OR Book 2868, at Page 3126, of the Public Records of Collier County, Florida. 2. The Agreement provides, among other things, Licensee's right to construct and maintain certain improvements upon the Lands including, but not limited to an eight (8) foot wide concrete paver pathway, subject to certain conditions and restrictions. 3. The Agreement is assignable to purchasers of all or a portion of the Lands provided that the purchasers assume the obligations under the Agreement and specifically acknowledge and agree that the use of the property and improvements to be placed on the property are strictly limited to those depicted on a certain plan of improvement and are otherwise subject to the terms of the Agreement. Packet Page -964- 2/22/2011 Item 16.E.1. IN WITNESS WHEREOF, the parties have executed this Memorandum of Agreement on the date hereinabove written. Witnesses: Company: FLORIDA POWER & LIGHT CaMP ANY CR-Yk:~ Signature ~i2 1V1~ No/kk- Name rint): By: Its: West Area Real Esta Print Name: Mark Byers State of Florida ) )ss: County of Sarasota ) On this <S'1:1 day o~, 20~, before me, the undersigned Notary Public, personally appeared Mark Byers, West Area Real Estate Manager, of Florida Power & Light Company, a Florida corporation, personally known to me to be the person who subscribed to the foregoing instrument and acknowledged that he executed the same on behalf of said corporation and that he was duly authorized to do so. (seal) In Witness Whereof, I hereunto set m~i:~ NOTARY PUBLIC, STATE OF FLORIDA Print Name: f!..t;Sc 111~c; NcJ.Ilt1:.- Commission No.: My Commission Expires: ROSE MARIE NOVAK MY COMMISSION # EE 030265 EXPIRES: December 6. 2014 Bonded Thru Notary Public Underwriters (Acknowledgements Continued on Next Page) Packet Page -965- 2/22/2011 Item 16.E.1. ATTEST: DWIGHT E. BROCK, Clerk BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA BY: , Deputy Clerk BY: FRED W. COYLE, Chairman APPROVED AS TO FORM :~;~ ROBERT N. ZACHARY, Assistant County Attorney Packet Page -966- ~ ~9 ~~ oc ~~ W \ z :J 1< ;r .... ~ 0 \ cr CI.l@ ~o 3:u ~~ ~ :r3! C3 ~~w~ 0....01= II of II 3:~IIa:- 6o~~ ~.~~~ . .. CI) Cl o o ~ D ~ ... ra ::-~ \""...... "". -"\ l~ I ~>- -~ ~~ ~~ :;;...~ ~~~ ~~, ~ W 0:: ~5 UCJ) 0:: W 9 ~ III !.2 0 CI) Uj =< O:::r :;; 0 ~ g~ ~~ ~ r;:j~ ~:;; CI.l ~o:: UW a:~ CH... >- "'C 3:-0 ~tO CLtO <0 a.."'C wO I-CL ~~ ZZ w=> 00 ..JU o ~ ~-' zS ~o:: 00 u~ 0:::;; !!!:;; ::Jg 8lJ:l We:: :r.... 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