Agenda 07/27/2010 Item #16A35Agenda Item No. 16A35
July 27, 2010
Page 1 of 11
EXECUTIVE SUMMARY
Recommendation to approve an amendment to an casement agreement for the purchase of a
road right -of -way, drainage and utility easement (Parcel No. 167RDUE) required for the
expansion of Santa Barbara Boulevard from two lanes to four lanes between Copper Leaf Lane
and Green Boulevard. (Phase II of Project No. 62081.) Estimated fiscal impact: None.
OBJECTIVE: To amend an easement agreement for the purchase of Parcel 167RDUE, required for
the expansion of Santa Barbara Boulevard, by extending the time for closing of the transaction up to
and including October 29, 2010 and to provide for a further time extension, if required, to be approved
by the County Manager or his designee.
CONSIDERATIONS: On April 29, 2010, County entered into an easement agreement with Mr. and
Mrs. Walls for the purchase of said Parcel 167RDUE. Paragraph 4 of the agreement provides that
closing shall occur within ninety days of said date, i.e. by no later than July 28, 2010. Mr. and Mrs.
Walls are obliged to provide to County, on or before the closing date, executed documents releasing
two mortgage liens encumbering the parcel. Their attorney has experienced delays in obtaining these
documents and has requested an extension until October 29, 2010 for the closing. Staff has no
objection to this request as construction of this project is not scheduled in the five -year work program.
The attached Amendment to Agreement provides for this extension of the closing deadline and
includes authority for the County Manager or his designee to grant one additional extension not
exceeding ninety days without further Board action. Unfortunately the banks holding these mortgages
have been slow in responding to the request for release of their liens, and it is not inconceivable that an
additional extension will be required. The remainder of the agreement remains in full force and effect.
FISCAL IMPACT: There is no additional fiscal impact as a result of the proposed amendment.
GROWTH MANAGEMENT IMPACT: The project is consistent with the Long Range
Transportation Plan and the Collier County Growth Management Plan.
LEGAL CONSIDERATIONS: This item is legally sufficient for Board action. —JBW
RECOMMENDATION: That the Board of County Commissioners of Collier County approve the
attached Amendment to Agreement and authorize its Chairman to execute same on behalf of the
Board, once a properly executed agreement has been received from the property owners and reviewed
and approved by the office of the County Attorney.
Prepared by: Robert Bosch, Right -of =Way Coordinator, Transportation Engineering
Attachments: (1) Amendment to Agreement; (2) Easement Agreement
Agenda Item No. 16A35
July 27, 2010
Page 2 of 11
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
Item Number: 16A35
Item Summary: Recommendation to approve an amendment to an easement agreement for the purchase of
a road right -of -way, drainage and utility easement (Parcel No 167RDUE) required for the
expansion of Santa Barbara Boulevard from two lanes to four lanes between Copper Leaf
Lane and Green Boulevard. (Phase II of Project No. 62081.) Estimated fiscal impact: None.
Meeting Date: 7/27/2010 9:00:00 AM
Prepared By
Robert Bosch
Right Of Way Coordinator
Date
Transportation Engineering &
Transportation Division
Construction Management
7112/2010 10:53:25 AM
Approved By
Jennifer White
Assistant County Attorney
Date
County Attorney
County Attorney
7!1212010 12:22 PM
Approved By
Marlene Messam
Project Manager, Senior
Date
Transportation Engineering &
Transportation Division
Construction Management
7!12/20101:04 PM
Approved By
Kevin Hendricks
Manager - Right of Way
Date
Transportation Engineering &
Transportation Division
Construction Management
7(12120101:14 PM
Approved By
Lisa Taylor
Management /Budget Analyst
Date
Transportation Division
Transportation Administration
711 2/2 01 0 1:51 PM
Approved By
Jeff Klatzkow
County Attorney
Date
7!1212010 3:46 PM
Approved By
Nick Casalanguida
Director - Transportation Planning
Date
Transportation Division
Transportation Planning
7!12!2010 4:32 PM
Approved By
Norm E. Feder, AICP
Administrator - Transportation
Date
Transportation Division
Transportation Administration
7!13/20101:30 PM
Approved By
Najeh Ahmad
Director - Transportation Engineering
Date
Agenda Item No. 16A35
July 27, 2010
Page 3 of 11
Transportation Engineering &
Transportation Division
Construction Management
711 3/201 0 1:35 PM
Approved By
Natali Betancur
Administrative Assistant
Date
Transportation Division
Transportation Road Maintenance
711412010 9:27 AM
Approved By
OMB Coordinator
Date
County Manager's Office
Office of Management & Budget
711412010 10:16 AM
Approved By
Leo E. Ochs, Jr.
County Manager
Date
County Managers Office
County Managers Office
7/14/2010 6:08 PM
Approved By
Susan Usher
Management /Budget Analyst, Senior
Date
Office of Management &
Budget
Office of Management & Budget
7/1612010 8:19 AM
Agenda Item No. 16A35
July 27, 2010
Page 4 of 11
AMENDMENT TO AGREEMENT
THIS AMENDMENT TO AGREEMENT is made and entered into on this
day of 2010, by and between DEAN E. WALLS and CYNTHIA S.
WALLS, husband and wife, whose mailing address is 1975 Santa Barbara Blvd.,
Naples, FI 34116 -5445, (hereinafter referred to as "Owner "), and COLLIER COUNTY, a
political subdivision of the State of Florida, whose mailing address is 3301 Tamiami Trail
East, Naples, Florida 34112 (hereinafter referred to as "Purchaser ").
WHEREAS, Purchaser and Owner have previously entered into an Easement
Agreement dated April 29, 2010 (hereinafter referred to as the "Agreement "); and
WHEREAS, Purchaser and Owner are desirous of amending Paragraph 4 of the
Agreement to extend the time for Closing of the transaction up to and including October
29, 2010 and to provide for a further time extension, if required, to be approved by the
County Manager or his designee.
NOW THEREFORE, in consideration of the mutual covenants and obligations
provided within the Agreement dated April 29, 2010 and other valuable consideration,
the Agreement is hereby amended as follows:
1. Paragraph 4 of the Agreement is hereby deleted in its entirety and the following
provision is substituted in its place:
Both Owner and Purchaser agree that time is of the essence. Therefore,
Closing shall occur by no later than October 29, 2010, provided, however,
that Purchaser 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 Purchaser'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
Purchaser in a form acceptable to Purchaser.
Except as expressly provided herein, the Agreement between Purchaser and Owner
remains in full force and effect according to the terms and conditions contained therein,
and said terms and conditions are applicable hereto except as expressly provided
otherwise herein.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
Agreement on the date first above written.
AS TO PURCHASER:
DATED:
ATTEST:
DWIGHT E. BROCK, Clerk
Deputy Clerk
Amendment To A_gxeement
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
BY:
FRED W. COYLE, Chairman
AS TO OWNER:
DATE
Witness (Signature)
Name (Print or Type)
Witness (Signature)
Name (Print or Type)
Witness (Signature)
Name (Print or Type)
Witness (Signature)
Name (Print or Type)
Approved as to form and
legal sufficiency:
nt�)
Jennifer White
Assistant County Attorney
DEAN E. WALLS
CYNTHIA S. WALLS
Agenda Item No, 16A35
July 27, 2010
Page 5 of 11
Agenda Item No. 16A35
July 27, 2010
Page 6 of 11
PROJECT: Santa Barbara Blvd. 62081, Phase II
PARCEL No(s): 167RDUE
FOLIO No(s): a portion of 38229280000
EASEMENT AGREEMENT
THIS EASEMENT AGREEMENT (hereinafter referred to as the "Agreement ") is
made and entered into on this 21_!'day of � �x� 2010, by and between
DEAN E. WALLS and CYNTHIA S. WALLS, husband and wife, whose mailing address is
1975 Santa Barbara Blvd., Naples, Fl 34116 -5445, (hereinafter referred to as "Owner'),
and COLLIER COUNTY, a political subdivision of the State of Florida, whose mailing
address is 3301 Tamiami Trail East, Naples, Florida 34112 (hereinafter referred to as
"Purchaser ").
WHEREAS, Purchaser 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 has been provided with construction plans for purposes of
evaluating Purchaser's offer, which plans reflect roadway improvements proposed for the
Easement; and
WHEREAS, Owner desires to convey the Easement to Purchaser for the stated
purposes, on the terms and conditions set forth herein and with the understanding that the
edge of pavement will not extend within 5 feet of the western boundary of the Easement,
and
WHEREAS, Purchaser 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:
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 Purchaser for the sum of:
$52,500.00
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, 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 Purchaser. In addition, Purchaser shall pay to
Owner. 1) the sum of $1,000.00 as full compensation for all attorneys' fees and
costs, including the costs of Owner's attorney obtaining from the holders of all
mortgages the execution of such instruments, in a form acceptable to Purchaser,
removing or releasing such mortgage interests from or subordinating such mortgage
interests to the Easement, and 2) $350.00 as full compensation for all expert witness
fees and costs, as provided for in Chapter 73, Florida Statutes.
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
Agenda Item No. 16A35
July 27, 2010
Page age 7 of 11
their recording in the public records of Collier County, Florida. At or prior to Closing,
Owner shall provide Purchaser with a copy of any existing prior title insurance
policies. Owner shall cause to be delivered to Purchaser 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) Road Right -of -Way, Drainage and Utility Easement;
(b) Closing Statement;
(c) Grantor's Non - Foreign, Taxpayer Identification and "Gap" Affidavit;
(d) W -9 Form,
(e) Partial Releases or Subordinations removing or releasing all mortgage
interests from or subordinating all mortgage interests to the Easement, 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 Purchaser,
Purchaser's counsel and /or title company.
4. Both Owner and Purchaser 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 Purchaser: provided, however, that Purchaser 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 Purchaser's enjoyment of the Easement. At Closing, payment
shall be made to Owner in that amount shown on the Closing Statement as "Net
Cash to Seller,'' and Owner shall deliver the Closing Documents to Purchaser in a
form acceptable to Purchaser.
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 Purchaser. 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 Purchaser. Owner acknowledges
that Purchaser has compensated Owner for the value of the Improvements and yet
Purchaser 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 Property 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.
Owner and Purchaser 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.
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
Agenda Item No. 16A35 1 27, 2010
Page ,F9
a e 8 of 11
perform all tasks required of Owner hereunder and to consummate the
transaction contemplated hereby.
(b) Purchaser'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 Purchaser 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 Purchaser to such conveyance,
encumbrance, or agreement, which consent may be withheld by Purchaser
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 Purchaser in writing prior to the
effective date of this Agreement.
(g) Purchaser 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 Purchaser.
(h) To the best of Owner's knowledge, 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
Purchaser, 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 Purchaser, 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 indemnity, defend, save and hold harmless the Purchaser against and
from, and reimburse the Purchaser 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 Purchaser 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.
Agenda Item No, 16A35
,Jmy 27. 2010
Page Cge 9 of 11
9. Purchaser shall pay all fees to record any curative instruments required to clear title,
all Easement recording fees, and any and all costs and/or fees associated with
recording 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,
related to the exemptions against payment of documentary stamp taxes by
Purchaser, Owner shall further pay all documentary stamp taxes required on the
instrument(s) of transfer, unless the Easement is acquired under threat of
condemnation.
10. 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.
11. 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, 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 Purchaser. (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.)
12. Purchaser agrees, warrants and represents the following
a) When construction of Santa Barbara Blvd. Phase II (Project No. 62081) is
completed, the edge of pavement of the vehicular travel lanes will not extend within
five (5) feet of the west line of the Easement. In the event Purchaser breaches this
commitment and constructs the paved surface of the roadway within five feet of the
western boundary of the Easement, the Owner, or their successor or assign, may
pursue a claim for any damages resulting therefrom. This provision does not apply to
pedestrian sidewalks
b) This purchase is subject to the provisions of Fla. Stat. s. 73.013. More
specifically, if the Purchaser does not develop the Easement as intended within the
statutory ten years, and seeks to transfer, assign or convey its rights in this
Easement to another public or private entity for some purpose other than roadway
improvements, the Purchaser must notify the Owner in writing of its intent and must
give the Owner, its successors and assigns, the opportunity to purchase the
Easement back for the original Purchase Price, plus any documentary tax stamps
and recording fees. Owner will have twenty (20) days from the Purchaser's notice to
exercise its right to purchase the Easement or this right is forever waived. In so
agreeing, Purchaser is furthering the public interest and policy advanced through the
enactment of s. 73.013.
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 Purchaser.
Agenda Item No. 16A35
my 27, 2010
Page age 10 of 11
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 PURCHASER
DATED: —041—?-
ATTEST:
DWIGHT E, BROCK, Clerk
V6 iD Clerk
AtLat as to C
{i�4'a • an 1 a
AS TO OWNER:
DATED: —4 - 2 c' J U
�z
Witness (Signature)
Name (Print or Type)
dness (S)kature
0%
'Nan' e (Phro r Type))
Witness (Signature)
Name (Print or Type)
tness Si ,raturej
Name (Print Type) f y/C1
Approved as to form and
legal sufficiency
Assistant County Attorney
Last Revised. 2/19109
BOARD OF COUNTY COMMISSIONERS
COLLIER - COUNTY, FLORIDA
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BY: `71-0 LJ. �"�
FRED W. COYLE, Chairm
DEAN E. WALLS
CYNTHIA S. WALLS
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2010
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