Agenda 09/28/2010 Item #16E 5
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Agenda Item No, 16E5
September 28, 2010
Page 1 of 21
EXECUTIVE SUMMARY
Recommendation to approve an Agreement for Sale and Purchase with Richard F.
Berman as to 1/3 interest and Raymond and Terry Bennett also known as Terri
Bennett, husband and wife, as to 1/3 interest and Frank J. Celsnak and Marlene J.
Celsnak Trustees U/DIT dated 27th December 1991 as to 1/3 interest for 1.59 acres
under the Conservation Collier Land Acquisition Program at a cost not to exceed
$16,500.
OBJECTIVE: To purchase a 1,59 acre parcel within the Winchester Head Multi-Parcel Project
from Richard F, Berman as to 1/3 interest and Raymond and Terry Bennett also known as Terri
Bennett, husband and wife, as to 1/3 interest and Frank J, Celsnak and Marlene J, Celsnak
Trustees UIDIT dated 27th December 1991 as to 1/3 interest (Sellers),
CONSIDERATIONS: On January 25, 2005, Agenda Item 10D, the Board approved a
Conservation Collier Land Acquisition Advisory Committee (CCLAAC) recommended Cycle II -
Active Acquisition List, (AAL) with changes, and directed staff to actively pursue acquisition of
the properties under the Conservation Collier Program, A multi-parcel project included on the
Cycle II - AAL was a portion of Unit 65 in Golden Gate Estates (Winchester Head Multi-parcel
Project), Staff has actively pursued acquiring parcels within Unit 65, However, on September
13, 2005, Agenda Item 16 A 34, the Board accepted CCLAAC's recommendation to, due to
rising property costs, discontinue buying properties for the Winchester Head Multi-parcel Project
for 90 days, On February 14, 2006, Agenda Item 10A, the Board approved placing the
Winchester Head Multi-parcel Project on the "B" list of the Cycle III - AAL, and on January 23,
2007, Agenda Item 10A, the Board approved the Cycle IV - AAL, once again placing the Multi-
parcel Project on the "B" list. On May 22, 2007, Agenda Item 10F, the Board approved
activating the Winchester Head Multi-parcel Project, with conditions, and it was placed on the
"A" list on the current AAL.
The Winchester Head Multi-parcel Project consists of 115 parcels and a total of 158.67 acres.
To date, Conservation Collier has acquired 46 parcels for a total of 64,19 acres, and the Collier
Soil and Water Conservation District has acquired 2 parcels totaling 2,28 acres,
Staff contracted with two independent, state-certified, general real estate appraisal firms to
appraise all parcels within the Winchester Head Multi-parcel Project. The appraisers based
their analyses on comparable sales from wetland, not upland parcels, preferably within the
Winchester Head Multi-parcel Project boundaries, The appraisals dated October 2009,
provided an averaged appraised value for all parcels within the Winchester Head Multi-parcel
Project at $10,000 an acre, On July 12, 2010, the CCLAAC recommended extending offers to
owners at the October 2009 appraisal vaiues, The cost to obtain new appraisals is $8,000,
Based on the slight decline in land values and the number of interested property owners last
year, the CCLAAC determined that the most cost effective approach is to utilize the 2009
appraisal values,
The Sellers' property contains a total of 1.59 acres and is located within the Winchester Head
Multi-parcel Project. The land cost for the 1,59 acre parcel is $15,900, The Property
Appraiser's 2010 Preliminary Tax Roll assessed value for this property is $12,243,
Agenda Item No, 16E5
September 28,2010
Page 2 of 21
The attached Agreement provides that should the County elect not to close this transaction for
any reason, except for default by the Sellers, the County will pay the Sellers $79,50 in liquidated
damages,
The CCLAAC approved this transaction on September 13, 2010 and voted to recommend Board
approval and execution of the attached Agreement.
Pursuant to Ordinance 2007-65, Section 13(8), a Project Design Report for the property is
provided herewith,
FISCAL IMPACT: The total cost of acquisition will not exceed $16,500 ($15,900 for the
property and approximately $600 for the title commitment, title policy, and recording of
documents). The funds will be withdrawn from the Conservation Collier Trust Fund (172), As
of September 13, 2010, property costs for Conservation Collier properties, including this
property and those under contract, total $104,060,193,02, Estimated costs of maintenance in
perpetuity have been considered by the CCLAAC and have been incorporated into the
Conservation Collier Long Term Financial Manilgement Plan,
GROWTH MANAGEMENT IMPACT: Fee simple acquisition of conservation lands is
consistent with and supports Policy 1,3,1(e) In the Conservation and Coastal Management
Element of the Collier County Growth Management Plan,
LEGAL CONSIDERATIONS: This item has been reviewed and approved by the County
Attorney's Office and is legally sufficient. - JBW
RECOMMENDATION: Staff is recommending that the Board:
1) Approves the attached Agreement and accepts the Warranty Deed once it has been received
and approved by the County Attorney's Office; 2) Authorizes the Chairman to execute the
Agreement and any and all other County Attorney's Office approved documents related to this
transaction; 3) Authorizes the County Manager or his designee to prepare related vouchers and
Warrants for payment; and 4) Directs the County Manager or his designee to proceed to
acquire this parcel, to follow all appropriate closing procedures, to record the deed and any and
all necessary documents to obtain clear title to this parcel, and to take all reasonable steps
necessary to ensure performance under the Agreement.
PREPARED BY: Cindy M, Erb, SRIWA, Senior Property Acquisition Specialist, Real Property
Management, Department of Facilities Management
2
Agenda Item No, 16E5
September 28, 2010
Page 3 of 21
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
Meeting Date:
16E5
Recommendation to approve an Agreement for Sale and Purchase with Richard F, Berman
as to 1/3 interest and Raymond and Terry Bennett aiso known as Terri Bennett, husband and
wife, as to 1/3 interest and Frank J Celsnak and Marlene J, Celsnak Trustees UlDrT dated
27th December 1991 as to 1/3 interest for 1,59 acres under the Conservation Collier Land
Acquisition Program at a cost not to exceed $16,500,
9/28/20109:00:00 AM
Item Number:
Item Summary:
Prepared By
Cindy M. Erb
Property Acquisition Specialist, Senior
Date
Administrative Services
Division
Facilities Management
9/13/20102:23:38 PM
Approved By
Skip Camp, C,F,M,
Director ~ Facilities Management
Date
Administrative Services
Division
FaciUties Management
9/13/20103:39 PM
Approved By
Toni A. Matt
Manager ~ Property Acquisition & Const
M
Date
Administrative Services
Division
Facilities Management
9/14/20102:37 PM
Approved By
Alexandra J. Sulecki
Environmental Specialist, Senior
Date
Administrative Services
Division
Facilities Management
9/14120103:13 PM
Approved By
Jennifer White
Assistant County Attorney
Date
County Attorney
County Attorney
9114120103:41 PM
Approved By
Len Golden Price
Administrator - Administrative Services
Date
Administrative Services
Division
Administrative Services Division
9/15/20102:09 PM
Approved By
OMS Coordinator
Date
County Manager's Office
Office of Management &. Budget
9116/201010:20 AM
Approved By
Therese Stanley
Manager - Operations Support ~ Trans
Date
A~enda Item No, 16E5
'September 28,2010
Page 4 of 21
Office of Management &
Budget
Office of Management & Budget
9/16/2010 12:42 PM
Approved By
Michael Sheffield
Assistant to the County Manager
Date
County Managers Office
9/17/20109:08 AM
Agenda Item No, 16E5
September 28, 2010
Page 5 of 21
Conservation Collier Land Acquisition Program
Project Design Report
Date: September 13,2010
Conservation Cofher: Winchester Head
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Propertv Owner: Richard F. Berman, Raymond and TerTi Benncll, Frank J, Celsnak,
Trustee, und Marlene J, Celsnak, 'l ruS1ee
Folio!s): :19960200005
Location: West 105 feet or Tracl R:1. GOLDE" GATE EST UNlT 65
Size: 1.59 acres
Appraisal/Offer Amount: $15,')00
Histon; of Projcct:
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I Selected fu: ! Approved I Pm.!ec! II{e,approved i f'urchu,c i OtTer
j the ..~. I' for " ! ~l<l hed, _ ,tor Pl~_:c_~-lasc II oner 11 Accepted
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l'urnose of Project: Consen'ution (oilier
Aqenda Item No, 16E5
'September 28,2010
Page 6 of 21
Proeram Oualifications:
The Winchester Head multi-parcel project. which includes the Bennan-!3ennett-Celsnak
] ,59-acre parcel, is located within an undeveloped depressional cyprcss head and marsh
wetland located in NGGE in Lnits 62 and 65, Using aerial photol,'Taphs. elevation data.
soil maps and public input. a total or 115 parcels (158,67 aeres) were identified as being
important for acquisition, The entire site is within North Golden Gatc Estates, identified
within the Conservation Collier ordinance COrd, 1\0, 2(J()7-65i as a larget protection area,
One importam reason for the nominatilln of Winehcster Head is that this arca junctions to
provide floodplain storage for sun'ounding hllme sites during high rainy season, In facl.
these types of depressional stl1ragc areas werc inCluded in the watcr managementl110dels
j{lr thc Golden Gate canal system done by Ihe [lig Cypress Basin, South Florida \Vater
Mana!!cment ~istrict and Dre a eonl1'nncnl or tlood clln/rol fen the area, /\t this time,
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Conservation Collier owns (>4 19 acres out or a lowl of 158,(,7 acres, or 4(J'Yo or the
proj ect area.
Other criteria that would be satisfied by " purchase here include protection of surface and
ground vv'8ier resources.prOlection of wetland dependent species habitat, good potential
J'Jr restoration and 10\\: estimated m~magemc:nl costs. Listed pL:.mr species were observed.
",hi Ie a lislcd ",jldlik species (Florida hlad heal! has heen dOClIlllenled al the edges of
the pmper!y, During a \:o\'cmber 20(ll) site ,'isiL It was nowd that there \\as standing
water within \Vinehester Head. Ihal man\ birds arc using (he area. and that the wetland
areas (except those directly adjoining roadway~,) aprear 10 he' nearl)' free of invasive
exotic plant jilt, indicming goud ~.C\.)jo~]caj value. Additionally, three different public
roads. 011l' or vvhich is pav('(i acccs:-; the site and aBo,\ the prop('I1:' lp he readily vie\ved.
rhe mall1r(" c;/pn:.ss and s:::hon,'JIJ:, :.:hangin~ marsh enhance the aesthctic setting oj'
Collier Coum\,
Proiectcd Managcment Activities:
/\clivt' manag.ement of this project i~ nnl feasii."'Ik' until ~! signiJlCunt contiguous area can
be acquired, Since Winchester Head ;, reimiwh J'ree oj' c,olle pbms, minimal control
dTons consisting of herhiciJe Jrpji":,HlC';I~_ on ::xolic~ at the t'df;CS of cl\\'ned properties
fnay he done until a lar.~l'r ar~>~; is LiU.!Ull't.\l B:..~caus:.' or th:.: wetland nature of the site.
trailS arc nut recomnk'nded. -\ r~li:-;:.:d buard\','aJk \\'oukl PC th:: nest purdie access
oPPortunity. howev:::r. this ,:-; no: rropos(:J until sOIllCllm(' \-vel1 imp the future of the
projecl when more parcels (Jrc ncquir>:'d. \atur(' ph(lh)~T:1ph: ::md hird \\:::llching are 1\\-0
activities that can occur ;:11 pn::~cr;1. \111.:':" consiLL.:::ralllll1 or nsks and liahilily. it may be
possihle lu allc)\.\- school i..."hiktrcJl L(l ";,-';1: :-;:wci!~:...' }!urccis :J~ part of an educational
1 t", " .., ..,u, I ....l)ll1 " '-'j:' 'd
program a,xlU1 \\.'CdanJs. '- lllT(.'l'11J:,, :n~: l\-\"l' r\l~ii:_L-': \.'" an;.::,,', :":.trt"~'lS :'\-'-"'~ pn)\'j e
access htH the ani>' parking ':' Llv.:: ruaJ ri81n-of-\-\':1>, (ll1T~nl]y. d VIsitor parking urea is
no! neccssury hut ;..:ould ]''-' cunSTl"uch:l; in the fUtLH\: If ;::~n lleart1~ upiand lot \Vcrc
acqmrec:, A_n educational kiosk ClyL!jJ Ot' pia;..:t..\.l dlong 011:..' iJl-lhc roads through the
]"")foJt'ct. It c\)uid contain In formatlcH \ ,lJ; \-\ ctland~ :tI1d on the pn;;:'servaliolJ uf'the areG-.
Signs can lx' placed at hounduricc; ainn~ ~ ;mo ~;,()\I! '>-;,1, ~\\. \-linima) rnamjgcnlcnl
acti\'itics. iik::::- trash removal can he {h':\.:\1!r:pllsn~'~' USll:~ ~-k)t;; c.{)l1lracLeli and \.()lunleer
lahor.
CONSERVATION COLLIER
TAX IDENTIFICATION NUMBER: 39960200005
Agenda Item No, 16E5
September 28,2010
Page 7 of 21
AGREEMENT FOR SALE AND PURCHASE
THIS AGREEMENT is made and entered into by and between RICHARD F. BERMAN
AS TO 1/3 INTEREST AND RAYMOND AND TERRI BENNETT AKA TERRY
BENNETT, HUSBAND AND WIFE. AS TO 1/3 INTEREST AND FRANK J. CELSNAK
AND MARLENE J. CELSNAK TRUSTEES WDIT DATED 27TH DECEMBER 1991 AS
TO 1/3 INTEREST, whose address is 6111'1 Street SW, Naples, FL 34117(hereinafter
referred to as "Seller"), and COLLIER COUNTY, a political subdivision of the State of
Florida, its successors and assigns, whose address is 3301 Tamiami Trail East, Naples,
FL 34112, (hereinafter referred to as "Purchaser"),
WITNESSETH
WHEREAS, Seller is the owner of that certain parcel of real property (hereinafter
referred to as "Property"), located in Collier County, State of Florida, and being more
particularly described in Exhibit "A", attached hereto and made a part hereof by
reference.
WHEREAS, Purchaser is desirous of purchasing the Property, subject to the conditions
and other agreements hereinafter set forth, and Seller is agreeable to such sale and to
such conditions and agreements.
NOW. THEREFORE, and for and in consideration of the premises and the respective
undertakings of the parties hereinafter set forth and the sum of Ten Dollars ($10.00), the
receipt and sufficiency of which is hereby acknowledged, it is agreed as follows:
I. AGREEMENT
1,01 In consideration of the purchase price and upon the terms and conditions
hereinafter set forth, Seller shall sell to Purchaser and Purchaser shall purchase
from Seller the Property, described in Exhibit "A".
II. PAYMENT OF PURCHASE PRICE
2,01 The purchase price (the "Purchase Price") for the Property shall be Fifteen
Thousand Nine Hundred and 00/100 Dollars ($15,900.00), (U,S, Currency)
payabie at time of closing.
III. CLOSING
3,01 The Closing (THE "CLOSING DATE", "DATE OF CLOSING", OR
"CLOSING") of the transaction shall be held on or before one hundred and twenty
(120) days following execution of this Agreement by the Purchaser, unless
extended by mutual written agreement of the parties hereto, The Manager of the
Real Property Management or designee is authorized to enter into such mutual
written agreements on behalf of the County for extensions of up to an additional 60
1
CONSERVATION COLLIER
TAX IDENTIFICATION NUMBER: 39960200005
Agenda Item I~o. 16E5
September 28,2010
Page 8 of 21
days without further approval by the Board of County Commissioners, The
Closing shall be held at the Collier County Attorney's Office, Administration
Building, 3301 Tamiami Trail East, Naples, Florida, The procedure to be follqwed
by the parties in connection with the Closing shall be as follows:
3.011 Seller shall convey a marketable title free of any liens, encumbrances,
exceptions, or qualifications. Marketable title shall be determined according to
applicable title standards adopted by the Florida Bar and in accordance with
law. At the Closing, the Seller shall cause to be delivered to the Purchaser
the items specified herein and the following documents and instruments duly
executed and acknowledged, in recordable form:
3,0111 Warranty Deed in favor of Purchaser conveying title to the
Property, free and clear of all liens and encumbrances other than:
(a) The lien for current taxes and assessments,
(b) Such other easements, restrictions or conditions of record.
3,0112 Combined Purchaser-Seller closing statement.
3.0113 A "Gap," Tax Proration, Owner's and Non-Foreign Affidavit," as
required by Section 1445 of the Internal Revenue Code and as required
by the title insurance underwriter in order to insure the "gap" and issue
the policy contemplated by the title insurance commitment.
3,0114 A W-9 Form, "Request for Taxpayer Identification and
Certification" as required by the Internal Revenue Service,
3,012 At the Closing, the Purchaser, or its assignee, shall cause to be delivered to
the Seller the following:
3,0121 A wire transfer or negotiable instrument in an amount equal to
the Purchase Price. No funds shall be disbursed to Seller until the Title
Company verifies that the state of the title to the Property has not
changed adversely since the date of the last endorsement to the
commitment, referenced in Section 4,011 thereto, and the Title Company
is irrevocably committed to pay the Purchase Price to Seller and to issue
the Owner's title policy to Purchaser in accordance with the commitment
immediately after the recording of the deed,
3,0122 Funds payable to the Seller representing the cash payment due
at Closing in accordance with Article III hereof, shall be subject to
adjustment for prorations as hereinafter set forth.
3.02 Each party shall be responsible for payment of its own attorney's fees, Seller,
at its sole cost and expense, shall pay at Closing all documentary stamp taxes due
relating to the recording of the Warranty Deed, in accordance with Chapter 201,01,
2
CONSERVATION COLLIER
TAX IDENTIFICATION NUMBER: 39960200005
Agenda Item No, 16E5
September 28, 2010
Page 9 of 21
Florida Statutes, and the cost of recording any instruments necessary to clear
Seller's title to the Property. The cost of the Owner's Form B Title Policy, issued
pursuant to the Commitment provided for in Section 4,011 below, shall be paid by
Purchaser. The cost of the title commitment shall also be paid by Purchaser.
3,03 Purchaser shall pay for the cost of recording the Warranty Deed, Real
Property taxes shall be prorated based on the current year's tax with due
allowance made for maximum allowable discount, homestead and any other
applicable exemptions and paid by Seller. If Closing occurs at a date which the
current year's millage is not fixed, taxes will be prorated based upon such prior
year's millage.
IV. REQUIREMENTS AND CONDITIONS
4,01 Upon execution of this Agreement by both parties or at such other time as
specified within this Article, Purchaser and/or Seller, as the case may be, shall
perform the following within the times stated, which shall be conditions precedent
to the Closing;
4,011 Within fifteen (15) days after the date hereof, Purchaser shall obtain as
evidence of title an AL TA Commitment for an Owner's Tille Insurance Policy
(ALTA Form 8-1970) covering the Property, together with hard copies of all
exceptions shown thereon. Purchaser shall have thirty (30) days, following
receipt of the title insurance commitment, to notify Seller in writing of any
objection to title other than liens evidencing monetary obligations, if any,
which obligations shall be paid at closing. If the title commitment contains
exceptions that make the title unmarketable, Purchaser shall deliver to the
Seller written notice of its intention to waive the applicable contingencies or to
terminate this Agreement
4,012 If Purchaser shall fail to advise the Seller in writing of any such
objections in Seller's title in the manner herein required by this Agreement, the
title shall be deemed acceptable, Upon notification of Purchaser's objection to
title, Seller shall have thirty (30) days to remedy any defects in order to convey
good and marketable title, except for liens or monetary obligations which will
be satisfied at Closing, Seller, at its sole expense, shall use its best efforts to
make such title good and marketable, In the event Seller is unable to cure said
objections within said time period, Purchaser, by providing written notice to
Seller within seven (7) days after expiration of said thirty (30) day period, may
accept title as it then is, waiving any objection; or Purchaser may terminate the
Agreement. A failure by Purchaser to give such written notice of termination
within the time period provided herein shall be deemed an election by
Purchaser to accept the exceptions to title as shown in the title commitment.
4.013 Seller agrees to furnish any existing surveys of the Property in Seller's
possession to Purchaser within 10 (ten) days of the effective date of this
Agreement. Purchaser shall have the option, at its own expense, to obtain a
current survey of the Property prepared by a surveyor licensed by the State of
3
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CONSERVATION COLLIER
TAX IDENTIFICATION NUMBER: 39960200005
Agenda Item No, 16E5
September 28,2010
Page 10 of 21
Florida, No adjustments to the Purchase Price shall be made based upon any
change to the total acreage referenced in Exhibit "A," unless the difference in
acreage revealed by survey exceeds 5% of the overall acreage, If the survey
provided by Seller or obtained by Purchaser, as certified by a registered
Florida surveyor, shows: (a) an encroachment onto the property; or (b) that an
improvement located on the Property projects onto lands of others, or (c) lack
of legal access to a public roadway, the Purchaser shall notify the Seller in
writing of such encroachment, projection, or lack of legal access, and Seller
shall have the option of curing said encroachment or projection, or obtaining
legal access to the Property from a public roadway, within sixty (60) days of
receipt of said written notice from Purchaser, Purchaser shall have ninety (90)
days from the effective date of this Agreement to notify Seller of any such
objections, Should Seller elect not to or be unable to remove the
encroachment, projection, or provide legal access to the property within said
sixty (60) day period, Purchaser, by providing written notice to Seller within
seven (7) days after expiration of said sixty (60) day period, may accept the
Property as it then is, waiving any objection to the encroachment, or projection,
or lack of legal access, or Purchaser may terminate the Agreement. A failure
by Purchaser to give such written notice of termination within the time period
provided herein shall be deemed an election by Purchaser to accept the
Property with the encroachment, or projection, or lack of legal access,
V, INSPECTION PERIOD
5,01 Purchaser shall have one hundred and twenty (120) days from the date of this
Agreement, ("Inspection Period"), to determine through appropriate investigation
that:
1, Soil tests and engineering studies indicate that the Property can be developed
without any abnormal demucking, soil stabilization or foundations.
2. There are no abnormal drainage or environmental requirements to the
development of the Property.
3, The Property is in compliance with all applicable State and Federal
environmental laws and the Property is free from any pollution or
contamination,
4, The Property can be utilized for its intended use and purpose in the
Conservation Collier program.
5,02 If Purchaser is not satisfied, for any reason whatsoever, with the results of
any investigation, Purchaser shall deliver to Seller prior to the expiration of the
Inspection Period, written notice of its intention to waive the applicable
contingencies or to terminate this Agreement. If Purchaser fails to notify the Seller
in writing of its specific objections as provided herein within the Inspection Period,
it shall be deemed that the Purchaser is satisfied with the results of its
investigations and the contingencies of this Article V shall be deemed waived. In
the event Purchaser elects to terminate this Agreement because of the right of
inspection, Purchaser shall deliver to Seller copies of all engineering reports and
4
CONSERVATION COLLIER
TAX IDENTIFICATION NUMBER: 39960200005
Agenda Item No, 16E5
September 28,2010
Page 11 of21
environmental and soil testing results commissioned by Purchaser with respect to
the Property,
5.03 Purchaser and its agents, employees and servants shall, at their own risk and
expense, have the right to go upon the Property for the purpose of surveying and
conducting site analyses, soil borings and all other necessary investigation.
Purchaser shall, in performing such tests, use due care and shall indemnify Seller
on account of any loss or damages occasioned thereby and against any claim
made against Seller as a result of Purchaser's entry, Seller shall be notified by
Purchaser no less than twenty-four (24) hours prior to said inspection of the
Property,
VI. INSPECTION
6.01 Seller acknowledges that the Purchaser, or its authorized agents, shall have
the right to inspect the Property at any time prior to the Closing,
VII. POSSESSION
7,01 Purchaser shall be entitled to full possession of the Property at Closing,
VIII. PRORATIONS
8,01 Ad valorem taxes next due and payable, after closing on the Property, shall
be prorated at Closing based upon the gross amount of 2009 taxes, and shall be
paid by Seller.
IX. TERMINATION AND REMEDIES
9,01 If Seller shall have failed to perform any of the covenants and/or agreements
contained herein which are to be performed by Seller, within ten (10) days of
written notification of such failure, Purchaser may, at its option, terminate this
Agreement by giving written notice of termination to Seller. Purchaser shall have
the right to seek and enforce all rights and remedies available at law or in equity to
a contract vendee, including the right to seek specific performance of this
Agreement.
9,02 If the Purchaser has not terminated this Agreement pursuant to any of the
provisions authorizing such termination, and Purchaser fails to close the
transaction contemplated hereby or otherwise fails to perform any of the terms,
covenants and conditions of this Agreement as required on the part of Purchaser
to be performed, provided Seller is not in default, then as Seller's sole remedy,
Seller shall have the right to terminate and cancel this Agreement by giving written
notice thereof to Purchaser, whereupon one-half percent (1/2%) of the purchase
price shall be paid to Seller as liquidated damages which shall be Seller's sole and
exclusive remedy, and neither party shall have any further liability or obligation to
the other except as set forth in paragraph 12,01, (Real Estate Brokers), hereof,
The parties acknowledge and agree that Seller's actual damages in the event of
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Agenda Item No, 16E5
September 28,2010
CONSERVATION COLLIER Page 12 of 21
TAX IDENTIFICATION NUMBER: 39960200005
Purchaser's default are uncertain in amount and difficult to ascertain, and that said
amount of liquidated damages was reasonably determined by mutual agreement
between the parties, and said sum was not intended to be a penalty in nature,
9,03 The parties acknowledge that the remedies described herein and in the
other provisions of this Agreement provide mutually satisfactory and sufficient
remedies to each of the parties, and take into account the peculiar risks and
expenses of each of the parties,
X, SELLER'S AND PURCHASER'S REPRESENTATIONS AND WARRANTIES
10,01 Seller and Purchaser represent and warrant the following:
10,011 Seller and Purchaser have full right and authority to enter into and to
execute this Agreement and to undertake all actions and to perform all tasks
required of each hereunder. Seller is not presently the subject of a pending,
threatened or contemplated bankruptcy proceeding,
10,012 Seller has full right, power, and authority to own and operate the
Property, and to execute, deliver, and perform its obligations under this
Agreement and the instruments executed in connection herewith, and to
consummate the transaction contemplated hereby, All necessary
authorizations and approvals have been obtained authorizing Seller and
Purchaser to execute and consummate the transaction contemplated hereby,
At Closing, certified copies of such approvals shall be delivered to Purchaser
and/or Seller, if necessary,
10,013 The warranties set forth in this paragraph shall be true on the date of
this Agreement and as of the date of Closing, Purchaser's acceptance of a
deed to the said Property shall not be deemed to be full performance and
discharge of every agreement and obligation on the part of the Seller to be
performed pursuant to the prOVisions of this Agreement.
10.014 Seller represents that it has no knowledge of any actions, suits, claims,
proceedings, litigation or investigations pending or threatened against Seller, at
law, equity or in arbitration before or by any federal, state, municipal or other
governmental instrumentality that relate to this agreement or any other
property that could, if continued, adversely affect Seller's ability to sell the
Property to Purchaser according to the terms of this Agreement.
10,015 No party or person other than Purchaser has any right or option to
acquire the Property or any portion thereof.
10.016 Until the date fixed for Closing, so long as this Agreement remains in
force and effect, Seller shall not encumber or convey any portion of the
Property or any rights therein, nor enter into any agreements granting any
person or entity any rights with respect to the Property or any part thereof,
without first obtaining the written consent of Purchaser to such conveyance,
6
CONSERVATION COLLIER
TAX IDENTIFICATION NUMBER: 39960200005
Agenda Item No, 16E5
September 28, 2010
Page 13 of 21
encumbrance, or agreement which consent may be withheld by Purchaser for
any reason whatsoever.
10.017 Seller represents that there are no incinerators, septic tanks or
cesspools on the Property; all waste, if any, is discharged into a public sanitary
sewer system; Seller represents that they have (it has) no knowledge that any
pollutants are or have been discharged from the Property, directly or indirectly
into any body of water. Seller represents the Property has not been used for
the production, handling, storage, transportation, manufacture or disposal of
hazardous or toxic substances or wastes, as such terms are defined in
applicable laws and regulations, or any other activity that would have toxic
results, and no such hazardous or toxic substances are currently used in
connection with the operation of the Property, and there is no proceeding or
inquiry by any authority with respect thereto. Seller represents that they have
(it has) no knowledge that there is ground water contamination on the Property
or potential of ground water contamination from neighboring properties. Seller
represents no storage tanks for gasoline or any other substances are or were
located on the Property at any time during or prior to Seller's ownership
thereof, Seller represents none of the Property has been used as a sanitary
landfill,
10,018 Seller has no knowledge that the Property and Seller's operations
concerning the Property are in violation of any applicable Federal, State or
local statute, law or regulation, or of any notice from any governmental body
has been served upon Seller claiming any violation of any law, ordinance, code
or regulation or requiring or calling attention to the need for any work, repairs,
construction, alterations or installation on or in connection with the Property in
order to comply with any laws, ordinances, codes or regulation with which
Seller has not complied,
10,019 There are no unrecorded restrictions, easements or rights of way (other
than existing zoning regulations) that restrict or affect the use of the Property,
and there are no maintenance, construction, advertising, management,
leasing, employment, service or other contracts affecting the Property,
10,020 Seller has no knowledge that there are any suits, actions or arbitration,
bond issuances or proposals therefor, proposals for public improvement
assessments, pay-back agreements, paving agreements, road expansion or
improvement agreements, utility moratoriums, use moratoriums, improvement
moratoriums, administrative or other proceedings or govemmental
investigations or requirements, formal or informal, existing or pending or
threatened which affects the Property or which adversely affects Seller's ability
to perform hereunder; nor is there any other charge or expense upon or related
to the Property which has not been disclosed to Purchaser in writing prior to
the effective date of this Agreement.
10,021 Seller acknowledges and agrees that Purchaser is entering into this
Agreement based upon Seller's representations stated above and on the
7
_.__.__....~-~",._------_..-,...~'--_.."
CONSERVATION COLLIER
TAX IDENTIFICATION NUMBER: 39960200005
Agenda Item No, 16E5
September 28,2010
Page 14 of 21
understanding that Seller will not cause the zoning or physical condition of the
Property to change from its existing state on the effective date of this
Agreement up to and including the Date of Closing. Therefore, Seller agrees
not to enter into any contracts or agreements pertaining to or affecting the
Property and not to do any act or omit to perform any act which would change
the zoning or physical condition of the Property or the governmental
ordinances or laws governing same. Seller also agrees to notify Purchaser
promptly of any change in the facts contained in the foregoing representations
and of any notice or proposed change in the zoning, or any other action or
notice, that may be proposed or promulgated by any third parties or any
governmental authorities having jurisdiction of the development of the property
which may restrict or change any other condition of the Property,
10,022 At the Closing, Seller shall deliver to Purchaser a statement
(hereinafter called the "Closing Representative Statement") reasserting the
foregoing representations as of the Date of Closing, which provision!; shall
survive the Closing,
10,023 Seller represents, warrants and agrees to indemnify, reimburse, defend
and hold Purchaser harmless from any and all costs (including attorney's fees)
asserted against, imposed on or incurred by Purchaser, directly or indirectly,
pursuant to or in connection with the application of any federal, state, local or
common law relating to pollution or protection of the environment which shall
be in accordance with, but not limited to, the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, 42 U,S,C, Section 9601,
et seq" ("CERCLA" or "Superfund"), which was amended and upgraded by the
Superfund Amendment and Reauthorization Act of 1986 ("SARA"), including
any amendments or successor in function to these acts, This provision and
the rights of Purchaser, hereunder, shall survive Closing and are not deemed
satisfied by conveyance of title.
10,024 Any loss and/or damage to the Property between the date of this
Agreement and the date of Closing shall be Seller's sole risk and expense,
XI. NOTICES
11,01 Any notice, request, demand, instruction or other communication to be
given to either party hereunder shall be in writing, sent by facsimile with
automated confirmation of receipt, or by registered, or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to Purchaser:
Alexandra Sulecki, Coordinator
Conservation Collier Land Acquisition Program
Collier County Facilities Department
3301 Tamiami Trail East - Building W
Naples, Fiorida 34112
8
~~
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CONSERVATION COLLIER
TAX IDENTIFICATION NUMBER: 39960200005
Agenda Item No, 16E5
September 28,2010
Page 15 of 21
With a copy to:
Cindy M, Erb. SRMlA, Senior Property Acquisition Specialist
Collier County Real Property Management
3301 Tamiami Trail East - Building W
Naples, Florida 34112
Telephone number: 239-252-8991
Fax number: 239-252-8876
If to Seller:
Richard F, Berman
611 1't Street SW
Naples, FL 34117-5108
Telephone number: 239-352-2376
Fax number: 239-304-5905
If to Seller:
Raymond & Terri Bennett
5330 SW 1951h Terrace
Fort Lauderdale, FL" 33332-1243
Telephone number: 954-680-2774
Fax number: 954-765-4564
If to Seller:
Frank J, & Marlene J, Celsnak, Tr,
455 W. Oakhampton Dr.
Eagle, 10, 83616
Telephone number: 208-939-6626
Fax number: 208-939-1520
11,02 The addressees and numbers for the purpose of this Article may be
changed by either party by giving written notice of such change to the other party
in the manner provided herein, For the purpose of changing such addresses or
addressees only, unless and until such written notice is received, the last
addressee and respective address stated herein shall be deemed to continue in
effect for all purposes.
XII. REAL ESTATE BROKERS
12.01 Any and all brokerage commissions or fees shall be the sole responsibility
of the Seller. Seller shall indemnify Purchaser and hold Purchaser harmless from
and against any claim or liability for commission or fees to any broker or any other
person or party claiming to have been engaged by Seller as a real estate broker,
salesman or representative, in connection with this Agreement. Seller agrees to
pay any and all commissions or fees at closing pursuant to the terms of a separate
agreement, if any.
XIII. MISCELLANEOUS
13.01 This Agreement may be executed in any manner of counterparts which
together shall constitute the agreement of the parties,
9
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CONSERVATION COLLIER
TAX IDENTIFICATION NUMBER: 39960200005
Agenda Item No, 16E5
September 28,2010
Page 16 of 21
13,02 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 trustee, and assignees
whenever the context so requires or admits,
13,03 Any amendment to this Agreement shall not bind any of the parties hereof
unless such amendment is in writing and executed and dated by Purchaser and
Seller. Any amendment to this Agreement shall be binding upon Purchaser and
Seller as soon as it has been executed by both parties,
13.04 Captions and section headings contained in this Agreement are for
convenience and reference only; in no way do they define, describe, extend or
limit the scope or intent of this Agreement or any provisions hereof,
13,05 All terms and words used in this Agreement, regardless of the number and
gender in which used, shall be deemed to include any other gender or number as
the context or the use thereof may require,
13,06 No waiver of any provision of this Agreement shall be effective unless it is in
writing signed by the party against whom it is asserted, and any waiver of any
provision of this Agreement shall be applicable only to the specific instance to
which it is reiated and shall not be deemed to be a continuing or future waiver as
to such provision or a waiver as to any other provision.
13.07 If any date specified in this Agreement falls on a Saturday, Sunday or legal
holiday, then the date to which such reference is made shall be extended to the
next succeeding business day,
13.08 Seller is aware of and understands that the "offer" to purchase represented
by this Agreement is subject to acceptance and approval by the Board of County
Commissioners of Collier County, Florida,
13,09 If the Seller holds the Property in the form of a partnership, limited
partnership, corporation, trust or any form of representative capacity whatsoever
for others, Seller 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 before Property held in such capacity is
conveyed to Collier 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.)
13,10 This Agreement is governed and construed in accordance with the laws of
the State of Florida.
10
CONSERVATION COLLIER
TAA IDENTIFICATION NUMBER: 39960200005
Aqenda Item No, 16E5
'September 28,2010
Page 17 of 21
XIV. ENTIRE AGREEMENT
14.01 This Agreement and the exhibits attached hereto contain the entire
agreement between the parties. and no promise. representation, warranty or
covenant not included in this Agreement or any such referenced agreements has
been or is being relied upon by either party, No modification or amendment of this
Agreement shall be of any force or effect unless made in writing and executed and
dated by both Purchaser and Seller. Time is of the essence of this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed below,
Dated Project/Acquisition Approved by BCC:
AS TO PURCHASER:
DATED:
ATTEST:
DWIGHT E. BROCK, Clerk
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
BY:
, Deputy Clerk
FRED W. COYLE, Chairman
Approved as to form and
Ie I s ciency:
~v'
Jen , White
Ass ta County Attorney
11
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CONSERVATION COLLIER
TAX IDENTIFICATION NUMBER: 39960200005
AS TO SELLER:
DATED: ; b- /0/-0 IZJ
II /
WITNESSES:
(1~ /7/ C:J,
C u;d.&t. J?J. f:'r,b
(Pnnted Narrf>
~~~
(Signature) !
t (tJ/) K ~{j f'v' I c.Jt
(Printed Name)
Agenda Item No, 16E5
September 28,2010
Page 18 of 21
--
12
CONSERVATION COLLIER
TAX IDENTIFICATION NUMBER: 39960200005
AS TO SELLER:
DATED: l- '2\-'2c:lIO
WITNESSES:
,tt..,
t' "_'
~ . Ay .p, G.1JAr
'gnature)
~p~ L. a1,t~o
(Printed me)
r
(Printed Name)
WITNESSES:
Ro b <<- (' .>.- I.j, '" ,tv ~
(Signature)
~~ "\J 4
(Printed Name)
~~
(Signature)
-:S.:;.~ ..J
,'-./,,-f- cch, ti.
(Printed Name)
Agenda Item No, 16E5
September 28,2010
Page 19 of 21
JS~>--~~ ~~
RAYMO;D-a~~~'E'TT
13
CONSERVATION COLLIER
TAX IDENTIFICATION NUMBER: 39960200005
AS TO SELLER:
"7-27-IU
DATED:
WITNESSES:
tzr"" -
tllu8f1?l 't ~TS6tJ
(Printed Name)
~1J~
(Sign~
~;A. ~]')(t(;?,,1 ~,1
(Printed Name) J
WITNESSES:
bKr=
c1gnatu) .,/
f/l~6tfL '-f /IV.<)/,s o}-l
(printed Name)
/i ~~ -
(Signature) 1 ' /
:~ '
10M CJ-.:>,~C(.).>rL~
(Printed Name) /
Agenda Item No, 16E5
September 28, 2010
Page 20 of 21
~~
THE FRANK J. CElSNAK & MARLENE
J. CElSNAK TRUST UNDER AGREEMENT
DATED DECEMBER 27, 1991.
~
MARLENE J. CElS
THE FRANK J. CE NAK & MARLENE
J. CElSNAK TRUST UNDER AGREEMENT
DATED DECEMBER 27, 1991
14
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CONSERVATION COLLIER
TAX IDENTIFICATION NUMBER: 39960200005
Agenda Item No. 16E5
September 28,2010
Page 21 of 21
EXHIBIT "A"
LEGAL DESCRIPTION:
THE WEST 105 FEET OF THE WEST 180 FEET OF TRACT
83, GOLDEN GATE ESTATES, UNIT NO, 65, ACCORDING
TO PLAT THEREOF AS RECORDED IN PLAT BOOK 5, PAGE
88 OF THE PUBLIC RECORDS OF COLLIER COUNTY,
FLORIDA.
PROPERTY IDENTIFICATION NUMBER: 39960200005
1.59 acres
15
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