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Agenda 09/09-10/2008 Item #16F(2)B 110 (J-l' AGENDA ITEM No. " I Pg ~~rt EXECUTIVE SUMMARY Recommendation to approve an Agreement for a temporary construction easement and other site modifications necessitated for closure of one driveway and the modification to another driveway at Mavrick House related to the expansion of Santa Barbara Boulevard from Davis Boulevard to north of Golden Gate Parkway. Project No. 62081. Estimated fiscal impact: $27,957.00. OBJECTIVE: To obtain the Board of County CommissiClners' approval of an Agreement that conveys a temporary construction easement to County on the Mavrick House property, located at the northeast comer of 29th Place SW and Santa Barbara Boulevard, in order to restore access to the parking lot located north of the principal structure on the property. CONSIDERATIONS: On October 27, 2002, the Board of County Commissioners approved Resolution 2002-442 authorizing the acquisition by gift or purchase of right-of-way and stormwater retention and treatment pond sites which will be required for the construction of roadway, drainage and utility improvements to Santa Barbara Boulevard (Project 62081). ( In February 2007 the Collier County Transportation Division was notified by the attorney representing the owner of the property known as the Mavrick House, that the County's proposed improvements to Santa Barbara Boulevard would result in the closure of both driveways on Santa Barbara, and that the closure of 29th Place SW would result in the complete loss of access to and from Santa Barbara Boulevard. The letter (and the attached report from Diaz-Pearson, Inc., Engineering and Planning) further explained that with the remaining access to Mavrick House limited to 29th Place, through the residential subdivision, that vehicular access to the parking lot had been severed as well, and that, ". . . the cost to rehabilitate the present use (halfway house) to residential use (single family home) may be cost prohibitive." If, rather than work with the County to find a solution to these access and parking problems, the owner had waited for the road construction project to be completed, and then brought a claim for damages and a demand for inverse condemnation, the County's exposure to additional costs and awards could have easily exceeded the fiscal impact of this Agreement. With the assistance of the County's design consultant, a solution was agreed to by the owners whereby 29th Place would remain open for right-in / right-out movements only, and whereby the County's contractor would reconstruct the driveway leading to the parking lot and install drainage structures to accept stormwater run-off. The "rental" for the County's period of occupancy of the property during the reconstruction of the driveway was reduced from $15,000 to $10,000. This payment also compensates the owner for the closure of the second driveway on Santa Barbara Boulevard and the resulting loss of two paved parking spaces. The owner's costs are being reimbursed as follows: The owner's attorney had 39 hours ($9,750) into the negotiations by December 17,2007. The total fee payable to attorney, Bella Patel, has been capped at $10,000 per the Agreement. The total fees payable for the services of the owner's real estate appraiser, engineer and land planner have been negotiated from $9,378.15 down to $7,921.50. N~GENDA ITEM S,P(f F/f!iJ.q j , Pg r9. 0+ l~J Approval of this document by the County Manager is subject to formal ratification by the Board of County Commissioners. If the decision by the County Manager is not ratified by that Board, this document shall be enforceable against Collier County only to the extent authorized by law in the absence of such ratification by that Board. FISCAL IMPACT: Funds in the amount of $27,957.00 will come from the Transportation Supported Gas Tax Fund and Impact Fee Funds. (Total amount includes the $10,000.00 negotiated purchase price, $10,000.00 attorney fees, $2,725 for engineering fees, $3,970.00 for land planning fees, $1226.50 for real estate appraisal fees, approximately $35.50 for recording fees. Source of Funds are Gas Taxes and Impact Fees. GROWTH MANAGEMENT IMPACT: There IS no Growth Management Impact associated with this Executive Summary. LEGAL CONSIDERATION: Substantial loss of access rights are compensable in an inverse condemnation action. The proposed agreement restores access to the site which is satisfactory to owner while minimizing the costs to the County. The item is ready for Board consideration and approval. HF AC RECOMMENDATION: That the Board of County Commissioners of Collier County, Florida: 1. Approve the attached Agreement; ( 2. Authorize its Chairman to execute said Agreement; 3. Authorize the County Manager or his designee to close the real estate transaction pursuant to the terms of the Agreement; 4. Authorize staff to record the Temporary Construction Easement in the public records; and 5. Authorize any budget amendments which may be required in order to implement the collective will of the Board. Prepared by: Kevin E. Hendricks, Right-of-Way Acquisition Manager, Transportation Engineering and Construction Management Attachments: Agreement wi Exhibits "A" and "B" \. PROJECT: PARCEL: FOLIO No: 99999 147TDRE 36431120002 EP (I! 20fjP pg3 o-f 10 AGREEMENT THIS TORE AGREEMENT (hereinafter referred to as the "Agreement") is made and entered into on this _ day of , 20_, by and between C. DEAN COPLEN AND HELEN I. COPLEN, as Trustees of The Coplen Family Trust dated 11/12/2001 AND SANDRA S. HOLDEMAN, whose mailing address is c/o Bella Y. Patel, Attorney at Law, 13026 Waterford Run Drive, Riverview, Florida 33569, (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 is expanding Santa Barbara Boulevard and making access improvements to Owner's property and to 29th Place SW, as part of the Santa Barbara Boulevard expansion project; and WHEREAS, as part of the above-referenced project, Purchaser has agreed to construct improvements on Owner's property pursuant to the terms of this Agreement: and WHEREAS, Owner's southerly driveway on Santa Barbara Boulevard will be closed: and ( WHEREAS, Purchaser requires a Temporary Drtveway Restoration 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") in order to construct the improvements; and WHEREAS, Owner desires to convey the Easement to Purchaser for the stated purposes, on the terms and conditions set forth herein; and WHEREAS, Purchaser agrees to install the drain in the driveway and reconstruct the driveway in accordance with the plans attached hereto as Exhibit "B". 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: 1. All of the above RECITALS are true and correct and are hereby expressly incorporated herein by reference as if set forth fully below, and all Exhibits referenced herein are made a part of this Agreement. 2. Owner shall convey the Easement to Purchaser for the sum of: $10,000.00 subject to the apportionment and distribution of proceeds pursuant to Paragraph 9 of this Agreement (said transaction hereinafter referred to as the "Closing"). Said payment to Owner, payable by County Warrant, shall be full compensation for the Easement conveyed, inciuding all landscaping, trees, shrubs, improvements, and fixtures located thereon, and shall be in full and final settlement of any and all damages resulting to Owner's remaining lands, and costs to cure, in connection with conveyance of said Easement to Purchaser. Furthermore, Purchaser shall pay attorney fees to Bella Y. Patel, P.A., in the amount of $10,000; engineertng fees to the firm of P.E.E.R in the amount of $2,725; land planning fees to the firm of Diaz- Pearson in the amount of $3,970; and real estate appraisal fees to the firm of Integra Realty Resources in the amount of $1 ,226.50. I (p F:J.- 117. AGE !'lDA ITEM No. Page 2 SE! 3. Prior to Closing, Owner shall obtain from the holders of any iiens, exceptions and/or. Pg qualifications encumbering the Easement, the execution of such instruments which ~ will remove, release or subordinate such encumbrances from the Easement upon their recording in the pubiic records of Collier County, Florida. 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: n '. o/UIr:~ ~( 0+' ID _..~= (a) Temporary Driveway Restoration Easement; (b) Closing Statement; (c) Grantor's Non-Foreign, Taxpayer Identification and "Gap" Affidavit; (d) W-9 Form; and (e) 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 of this Agreement and that, 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 quaiifications 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. (- 5. 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 responsibie 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 Easement prior to construction of the project commencement of shall be deemed abandoned by Owner. This provision shall survive Closing and is not deemed satisfied by conveyance of title. 6. Owner and Purcnaser agree to do all things which may be required to give effect to this Agreement immediately as such requirement is made known to them or they are requested to do so, whichever is the earlier. 7. Owner agrees, represents and warrants the following: (a) Owner has full right, power and authority to own and operate the property underlying the Easement, to enter into and to execute this Agreement, to execute, deliver and perform its obligations under this Agreement and the instruments executed in connection herewith, to undertake all actions and to perform all tasks required of Owner hereunder and to consummate the transaction contemplated hereby. r[pr-02-6 Pa ~ (b) Purchaser's acceptance of the Easement shall not be deemed to b performance and discharge of every agreement and obligation on the p Owner to be performed pursuant to the provisions of this Agreement. SEP I, Ii ?fJ[li: .5' +(0 t Pg (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) 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 underiying the Easement; b) any existing or threatened environmental lien against the property underlying the Easement; or c) any lawsuit, proceeding or investigation regarding the generation, storage, treatment, spill or transfer of hazardous substances on the property underlying the Easement. This provision shall survive Closing and is not deemed satisfied by conveyance of title. 8. Owner shall indemnify, defend, save and hold harmless the 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 t~le. 9. By the execution hereof, Owner hereby releases Purchaser from any and all claims arising in connection with the Santa Barbara Boulevard expansion project, including but not limited to claims of compensation for, or damages relating to: a. Access both to and/or from e~her Santa Barbara Boulevard or 29th Place Southwest; (- (wF7 Page AGEN No. . . . . I Pg SEj J; o}OI~ 10. 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 securing and recording a Release br 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 for the execution of any release, subordination or satisfaction, 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 exempions 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. b. Parking; and c. Drainage. 11. This Agreement and the terms and provisions hereof shall be effective as of the date this Agreement is executed by both parties and shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, personal representatives, successors, successor trustees, and/or assignees, whenever the context so requires or admits. 12. If the Owner holds the property underlying the Easement in the form of a partnership, limited partnership, corporation, trust or any form of representative capacity whatsoever for others, Owner shall make a written public disclosure, according to Chapter 286, Florida Statutes, under oath, 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.) 13. Conveyance of the Easement, or any interest in the property underlying the Easement, by Owner is contingent upon no other provisions, condtlions, 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. 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: ATTEST: DWIGHT E. BROCK, Clerk BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA BY: TOM HENNING, Chairman Deputy Clerk AS TO OWNER: -- ( - Witness ignature) C~ t...oc.J~ (Print e) ~~J1~ Wi ness (SigOOl'ure) ~...>'I-!1) IJv1..~~O (Print Name) (~L ess (Signature) 'P'/~.r' ~, ii/-L Name 'n! or Type) 7~-J;:1-~ itness (Sig ure) KDWV -T tA"i1~ Name (Print or Type) Approved as to form and 'jluffiCiency: . 1 !t1~' A-ct Heidi F.')S;shton-Cicko 0 Assistant County Attorney LastRavised:411J08 ((j; if' ;7.8 N~GENqA ITEM SEP (J, "'II'" ~./ {ldJ:; I Pg ....:::.1"p -f- (0 C. DEAN COPLEN, Ind' Idually and as . .. '.., t~ ~;:;;:--- Co-Trustee of The Coplen Family Trust dated 11/12/2001 Pa ~ l (!,-?f..' ,-.-.J HELEN I, COPLEN, Indivfctually and as Co-Trustee of The Coplen Family Trust dated 11/12/2001 ~d~!!Jkn~ SEP OJ ?Wi<i 1 Pg g I -f' 10 -~ ,.~-~., Exhibit "A" The North 30 feet of the West 30 feet of the following described property: ( Lot 28, Block 230, Golden Gate Unit 7, according to the plat thereof recorded in the publiG records or Collier County, Florida, in Plat Book 5, Pages 135 through 146, TOGETHER WITH the South 10 feet of the 20 foot wide platted alleyway vacated by Collier County via Resolution No. 95-155, recorded in the public records of Collier County, Florida, in OR Book 2035, Pages 1367 through 1372, located immediately adjacent to the north line of said Lot 28. ~ " a EXHIBIT J) ~ \ at II' I~) ?11f1A U+[o . , , , , , , , I I I I ~ I ' . 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