Loading...
Agenda 06/23/2009 Item #16E11 Agenda Item No. 16E11 June 23,2009 Page 1 of 18 EXECUTIVE SUMMARY Recommendation to approve an Agreement for Sale and Purchase with Triangle Licensing Corporation, for 29.33 acres under the Conservation Collier Land Acquisition Program, at a cost not to exceed $295,000. OBJECTIVE: To obtain approval from the Board of County Commissioners for execution of the attached Agreement for Sale and Purchase (Agreement) between the Board of County Commissioners (Board) and Triangle Licensing Corporation, a Florida corporation (Seller). CONSIDERATIONS: On January 23, 2007, Agenda Item 10A, the Board approved a Collier Conservation Land Acquisition Advisory Committee (CCLAAC) recommended Active Acquisition List, with changes, and directed staff to actively pursue acquisition of the properties under the Conservation Collier Program. On January 29, 2008, Agenda Item 1 OF, the Board approved a Collier Conservation Land Acquisition Advisory Committee (CCLAAC) recommended Active Acquisition List, with changes, and directed staff to actively pursue acquisition of the properties under the Conservation Collier Program. This property was previously known as the RJS, LLC parcel; however, it was - quitclaimed to the mortgagee, who is the Seller, on January 26, 2009. The Seller's property contains a total of 29.33 acres and is located in Section 29, Township 51 South, Range 27 East. This parcel is within the Mcllvane Marsh area. In accordance with the approved Conservation Collier Purchasing Policy, the purchase price of $289,400 was based upon one independent, state-certified, general real estate appraiser. The attached Agreement provides that should the County elect not to close this transaction for any reason, except for default by the Seller, the County will pay the Seller $1,447 in liquidated damages. The CCLAAC approved this transaction on June 8, 2009, 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 $295,000 ($289,400 for the property, $3,000 for the appraisals, and approximately $2,600 for the title commitment, title policy, and recording of documents). The funds will be withdrawn from the Conservation Collier Trust Fund (172). As of April 13, 2009, property costs for Conservation Collier properties, including this property and those under contract, total - $103,503,785.02. Agenda Item No. 16E11 June 23, 2009 Page 2 of 18 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: The Conservation Collier Ordinance (2007-65) provides a legal framework for property acquisition for the Conservation Collier Program. The process for acquiring this property falls within the legal framework of Ordinance 2007- 65. The Agreement has been reviewed and approved by the County Attorney's Office. -JBW .,.. RECOMMENDATIONS: Staff is recommending that the Board of County Commissioners: 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 Erb, SRfWA, Senior Property Acquisition Specialist, Real Property Management, Department of Facilities Management Page 1 of 1 Agenda Item No. 16E11 June 23, 2009 Page 3 of 18 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: 16E11 Item Summary: Recommendation to approve an Agreement for Sale and Purchase with Triangle Licensing Corporation. for 29.33 acres under the Conservation Collier Land Acquisition Program, at a cost not to exceed $295,000. Meeting Date: 6/23/2009 90000 AM Prepared By Cindy M. Erb Senior Property Acquisition Specialist Facilities Management Date Administrative Services 6/8/200912:20:20 PM Approved By Skip Camp, C.F.M. Facilities Management Director Facilities Management Date Administrative Services 6/8120092:22 PM Approved By Jennifer A. Belpedio County Attorney Assistant County Attorney County Attorney Office Date 618/20093:31 PM Approved By Alexandra J. Sulecki Senior Environmental Specialist Facilities Management Date Administrative Services 618/2009 5:02 PM Approved By Toni A. Mott Real Property Supervisor Date Administrative Services Facilities Management 6/9/20094:21 PM Approved By Len Golden Price Administrative Services Administrator Date Administrative Services Administrative Services Admin. 6/9/20095:10 PM Approved By OMB Coordinator OMB Coordinator Office of Management & Budget Date County Manager's Office 6/10/20091 :30 PM Approved By Laura Davisson Management & Budget Analyst Office of Management & Budget Date County Manager's Office 6/11/200910:52 AM Approved By Jeff Klatzkow County Attorney County Attorney Office Date County Attorney 6/11/2009 1 :25 PM Approved By Leo E. Ochs, Jr. Board of County Commissioners Deputy County Manager Date County Manager's Office 6/11/20096:15 PM file://C:\AgendaTest\Export\132-June%2023.%202009\16.%20CONSENT%20AGENDA \1... 6/17/2009 Conservation Collier Land Acquisition Program Project Design Report RJS LLC - 29.33 acres Date: June 8, 2009 Agenda Item No. 16E11 June 23, 2009 Page 4 of 18 Conservation Collier: Mcllvane Marsh 05 1 Miles. Mcllvane Marsh c:J A.:qulred ":::~,......- [::J Approved for Acquisition o Slate and Federal ConSBrvatlor Land - . Coliicr C O!lIlt~ - . Propertv Owner(s): Triangle Leasing Corporation, formerly owned by RJS LLC Folio(s): 00775080009 Location: McIlvane Marsh - Section 29, Township 51, Range 27 Size: 29.33 acres Appraisal/Offer Amount: $289,400 Historv of Proiect: Received Selected for the Approved for Purchase offer Offer Accepted application Active Acquisition purchase by made to owners List by CCLAAC BCC August 15, 2006 December 1 I, 2006 January 23, 2007 June 13, 2007 December 22, 2008 Purpose of Project: Conservation Collier Agenda Item No. 16E11 June 23, 2009 Page 5 of 18 Pro2ram Qualifications: This site is part of a project area, in which a number of similar parcels were evaluated as a group. The group met 5 out of 6 initial screening criteria, including presence of native habitat, human resource values, biodiversity and connectivity. The one criteria not met was being within another agency boundary, however, the State of Florida Division of State Lands is interested in pursuing a boundary adjustment in order to partner with Collier County for post acquisition partner funding and management of the parcels as discussed in the Projected Management Activities section. McIlvane Marsh is an 800-acre project area located south of U.S. 41 and just to the west of Collier Seminole State Park, in Sections 29 and 30, Township 51, Range 27. The project area is divided into 19 parcels of which Conservation Collier has previously acquired 7 parcels totaling 339.54 acres, excluding the subject parcel. Rookery Bay National Estuarine Research Reserve (RBNERR) either already owns or is in the process of receiving 2 parcels totaling 330 acres that have been donated for mitigation purposes. Collier County has also owns 20 acres of conservation lands within the project area from a 1999 mitigation transaction. Acquisition of the Triangle Licensing Corporation parcel (formerly owned by RTS LLC) will place approximately 389 acres under County ownership, for a total of 719 acres in conservation status. There are 80 acres within McIlvane Marsh remaining to be acquired from 6 owners. The RJS LLC parcel is 29.33 acres on the east side of the marsh project area. It is one of 2 parcels totaling 51.02 acres initially offered by RJS LLC. An offer was extended for both parcels by the County on March 27, 2007. This offer was refused on April 26, 2007; however, the owner subsequently offered one of the parcels again for sale (the 30-acre parcel), and on November 16, 2007 Conservation Collier did acquire that parcel. Subsequent to that transaction, the owner offered the remaining 21.02 acres. At some point in 2007, the Property Appraiser increased the 21.02 parcel by 8.31 acres, now totaling 29.33 acres. The 8.31 acres is a result of RJS LLC transferring a neighboring parcel that omitted this acreage from the transaction, resulting in acreage that needs to be accounted for. After reviewing this with the Conservation Collier Committee, it was agreed to add this acreage and make a new offer to RJS LLC. An offer was made and accepted on December 22, 2008. At the Conservation Collier Land Acquisition Advisory Conunittee meeting on January 12, 2009, the Conservation Collier Committee affirmed their recommendation to proceed to buy the 29.33 acres. On January 27, 2009, the Board of County Conunissioners approved to retain this property on the A-List, and staff moved forward to work with the property owner on a contract. On January 26, 2009, the owner RJS LLC quit claimed his interest in the property to another entity, Triangle Licensing Corporation, who held a mortgage on this property. McIlvane Marsh contains at least 4 different types of native plant communities identified by the Florida Department of Transportation's Florida Land Use Cover and Forms (FLUCCS) (1994/1995) classification system, including saltwater marsh, mangroves, pine flatwoods and inland ponds/sloughs. These native plant communities appear to be in relatively good shape, with exotics primarily along the northern edge where there is a dirt road, however, much of the property was viewed from one video taken of the western side of the marsh and from the air, due to accessibility problems. For inaccessible areas, staff relied upon reports from (RBNERR) staff, who have visited most areas within the marsh. Conservation Collier does not own other lands in this geographic area, so acquisition of this group of parcels expands the geographic distribution of Conservation Collier Preserves. There is 2 Agenda Item No. 16E 11 June 23, 2009 , I 'd . i" b d . hr Page 6 of 18 potentIa to provI e appropnate access lor nature- ase recreatIOn tough State-owned Rookery Bay lands. Although much of the marsh is inaccessible by vehicle or foot, there is potential for canoe or kayak access, fishing and wildlife viewing via Curcie Road, a paved, public right-of- way. Acquisition of the Triangle Licensing Corporation parcel (formerly owned by RTS LLC) provides direct access to Curcie Road. Acquisition of parcels within this project area will provide opportunities for protection of water resource values, including aquifer recharge, water quality enhancement, protection of wetland dependent species and flood control. Coastal wetlands within the project area provide habitat for many wetland dependent species, particularly bird and fish species. There is a known rookery within the McIlvane Marsh and many listed and non-listed bird species have been observed there. The marsh contains habitat for other listed species, including American alligator (State -SSC*, Federal - T**) and American crocodile (State - E***, Federal - E). While it is not known whether the site contains listed plant species, it is likely to contain listed (but locally common) bromeliad species. Acquisition of the marsh will provide protection both for developed properties to the north from storm surge and water quality protection to adjoining marine and estuarine communities, as the plants, animals and soils in coastal marshes absorb, filter and neutralize many pollutants draining from the land. The area also provides moderate to substantial recharge for the surficial aquifer. Acquisition of the McIlvane Marsh will provide opportunities to protect significant biological values by protection listed species habitat, providing connectivity to other conservation lands and offering restoration potential and ecological quality. The marsh appears to have good ecological quality, as observed by staff during area flyovers and as reported by Rookery Bay National Estuarine Research Reserve (RBNERR) staff. The project area is directly connected to public conservation and park lands, including the Collier Seminole State Park, Ten Thousand Islands National Wildlife Refuge, Deltona Settlement Lands and, through them, to RBNERR. Projected Mana2ement Activities: Staff is currently in conversation with the Florida Division of State Lands on a post-acquisition partnering proposal that would share costs of acquisition and potentially transfer title to the State for inclusion in the RBNERR. Rookery Bay staff advises that canoe and kayak access is possible from Curcie Road. Partnership with the State would make the entire project less expensive for Collier County, remove long term management costs and obligations for the County on inaccessible areas and would still result in placing the marsh in permanent conservation status, with some level of public access, thus achieving all the goals of the Conservation Collier Program. As previously mentioned, RBNERR already owns a significant portion of the marsh. Lands owned and managed by RBNERR would be accessible to the public under the Rookery Bay lands management plan. * SSC - Species of Special Concern ** T - Threatened *** E - Endangered 3 ... CONSERVATION COLLIER PROPERTY TAX IDENTIFICATION NUMBER: 00775080009 Agenda Item No. 16E 11 June 23. 2009 Page 7 of 18 AGREEMENT FOR SALE AND PURCHASE THIS AGREEMENT is made and entered into by and between TRIANGLE LICENSING CORPORATION, a Florida corporation, whose address is 1083 North Collier Boulevard, Suite #195, Marco Island, FL 34145, (hereinafter referred to as "Seller"), and COLLIER COUNTY, a political subdivision of the State of Florida, its successors and assigns, whose address is 3301 Tamiamj 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 Two Hundred Eighty Nine Thousand Four Hundred Dollars and 00/100 dollars ($289,400.00) (U.S. Currency) payable 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 Closing shall be held at the Collier County Attorney's Office, Administration Building, 3301 Tamiami Trail East, Naples, Florida. The procedure to be followed 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. 1 \ CONSERVATION COLLIER PROPERTY TAX IDENTIFICATION NUMBER: 00775080009 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: Agenda Item No. 16E 11 June 23. 2009 Page 8 of 18 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 negotiable instrument (County Warrant) 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, 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 2 . CONSERVATION COLLIER PROPERTY TAX IDENTIFICATION NUMBER: 00775080009 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. Agenda Item No. 16E11 June 23, 2009 Page 9 of 18 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 T A Commitment for an Owner's Title Insurance Policy (AL T A 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 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 3 CONSERVATION COLLIER PROPERTY TAX IDENTIFICATION NUMBER: 00775080009 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. Agenda Item No. 16E 11 June 23, 2009 Page 10 of 18 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 Seifer 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 environmental and soil testing results commissioned by Purchaser with respect to the Property. 5.03 Purchaser and its agents, employees and servants shalf, 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. Seifer 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, shalf have the right to inspect the Property at any time prior to the Closing. VII. POSSESSION 4 CONSERVATION COLLIER PROPERTY TAX IDENTIFICATION NUMBER: 00775080009 7.01 Purchaser shall be entitled to full possession of the Property at Closing. Agenda Item No. 16E 11 June 23, 2009 Page 11 of 18 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 2008 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 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 5 CONSERVATION COLLIER PROPERTY TAX IDENTIFICATION NUMBER: 00775080009 Agenda Item No. 16E11 June 23, 2009 Page12of18 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, 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 6 CONSERVATION COLLIER PROPERTY TAX IDENTIFICATION NUMBER: 00775080009 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. Agenda Item No. 16E 11 June 23, 2009 Page 13 of 18 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 governmental 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 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 provisions 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 7 CONSERVATION COLLIER PROPERTY TAX IDENTIFICATION NUMBER: 00775080009 Agenda Item No. 16E 11 June 23, 2009 Page 14 of 18 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: With a copy to: If to Seller: With a copy to: Alexandra Sulecki, Coordinator Conservation Collier Land Acquisition Program Collier County Facilities Department 3301 Tamiamj Trail East Naples, Florida 34112 Cindy M. Erb, SRIWA, 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 Triangle Licensing Corporation 1083 North Collier Boulevard, Suite #195 Marco Island, FL 34145 Telephone number: Lfl,.qlfJ-S3~f1 Fax number: 'flb-If{f) -5b~9 Louis W. Cheffy, Attorney Cheffy Passidomo, P.A. 821 Fifth Avenue South, Suite 201 Naples, Florida 34102 Telephone: (239) 261-9300 Fax number: (239) 261-0884 1(J1I. / 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 -.--& CONSERVATION COLLIER PROPERTY TAX IDENTIFICATION NUMBER: 00775080009 Agenda Item No. 16E11 June 23,2009 Page 15 of 18 12.01 Purchaser and Seller represent and warrant to each other that they have not contacted a broker or salesman in connection with this transaction. Seller hereby agrees to indemnify and hold Purchaser harmless from and against any claims(s) of any other person(s) asserting a right to a commission in connection with this transaction by virtue of dealing with the Seller. XIII. MISCELLANEOUS 13.01 This Agreement may be executed in any manner of counterparts which together shall constitute the agreement of the parties. 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 related 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 9 CONSERVATION COLLIER PROPERTY TAX IDENTIFICATION NUMBER: 00775080009 Agenda Item No. 16E11 June 23, 2009 Page 16 of 18 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. 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: I Deputy Clerk DONNA FIALA, Chairman AS TO SELLER: DATED: IJIb.Jll, looe; WITNESSES: 10 .. CONSERVATION COLLIER PROPERTY TAX IDENTIFICATION NUMBER: 00775080009 Agenda Item No. 16E11 June 23. 2009 Page 17 of 18 p,q (..1L ttJ IL~ yf'1 6 (;E (Printed Name) TRIANGLE LICENSING CORPORATION, a Florida corporation 414 BY: DOUG -- (Signature) /f.;',~.~/ A;~v/ (Printed N9fl'le) . Approved as to form and legal sufficiency: ~~ A-Q[c) r F---. /e n1fer B. White \,fJ' - Assistant County Attorney EXHIBIT "A" PROPERTY TAX IDENTIFICATION NUMBER: 00775080009 LEGAL DESCRIPTION: THE EAST HALF (E ~) OF THE SOUTHEAST QUARTER (SE 14) OF SECTION 29, TOWNSHIP 51 SOUTH, RANGE 27 EAST, COLLIER COUNTY, FLORIDA; LESS AND EXCEPT THE NORTH 854 FEET OF THE SOUTH 1054 FEET OF THE WEST 534 FEET OF THE EAST 1320 FEET OF THE SOUTHEAST QUARTER OF SECTION 29, TOWNSHIP 51 SOUTH, RANGE 27 EAST, COLLIER COUNTY, FLORIDA. 11 I CONSERVATION COLLIER PROPERTY TAX IDENTIFICATION NUMBER: 00775080009 Agenda Item No. 16E 11 June 23, 2009 Page 18 of 18 TOGETHER WITH ACCESS EASEMENT THIRTY (30') FEET WIDE, BEING DESCRIBED AS FOLLOWS: THE NORTH THIRTY (30') FEET OF THE SOUTH 200 FEET OF THE EAST 816 FEET OF SAID SOUTHEAST QUARTER AND THE EAST THIRTY (30') FEET OF THE SOUTH 170 FEET OF THE SAID SOUTHEAST QUARTER. AND LESS AND EXCEPT BEGINNING AT THE SOUTHEAST CORNER OF SECTION 29, TOWNSHIP 51 SOUTH, RANGE 27 EAST, COLLIER COUNTY, FLORIDA, RUN NORTH ALONG THE EAST LINE OF SAID SECTION 29 FOR 230 FEET; THENCE SOUTH 89059'05" WEST, PARALLEL WITH THE SOUTH LINE OF SAID SECTION 29 FOR 92.83 FEET; THENCE SOUTHERLY 230.70 FEET ALONG THE ARC OF A CURVE, CONCAVE TO THE EAST HAVING A RADIUS OF 5,087.57 FEET AND A CHORD BEARING SOUTH 04020'28" EAST FOR 230.68 FEET TO THE SAID SOUTH LINE OF SECTION 29; THENCE NORTH 89059'05" EAST ALONG THE SAID SOUTH LINE OF SECTION 29 FOR 75.37 FEET TO THE POINT OF BEGINNING. AND THE NORTH THIRTY (30') FEET OF THE NORTHEAST QUARTER (NE ~) OF THE SOUTHWEST QUARTER (SW~) OF SECTION 29, TOWNSHIP 51 SOUTH, RANGE 27 EAST, COLLIER COUNTY, FLORIDA. AND THE NORTH FIFTY (50') FEET OF THE WEST HALF (W X) OF THE SOUTHEAST QUARTER (SE ~) OF SECTION 29, TOWNSHIP 51 SOUTH, RANGE 27 EAST, COLLIER COUNTY, FLORIDA. AND THE EAST 100 FEET OF THE WEST HALF (WX) OF THE SOUTHEAST QUARTER (SE X) OF SECTION 29, TOWNSHIP 51 SOUTH, RANGE 27 EAST, COLLIER COUNTY, FLORIDA. 12