Agenda 03/25/2008 Item #10H
Agenda Item No. 10H
March 25, 2008
Page 1 of 19
EXECUTIVE SUMMARY
Recommendation to approve the purchase of a 4.98 acre improved property (Parcel No.
147) and a vacant, 4.27 acre parcel (Parcel No. 146), both of which are required for the
construction of the Vanderbilt Beach Road Extension project. Project No. 60168 (Fiscal
Impact: $1,977,600.)
OBJECTIVE: To obtain the Board of County Commissioners' approval to purchase improved
property and a vacant parcel, both of which are required for the construction of the Vanderbilt
Beach Road Extension project (between Collier Boulevard and Wilson Boulevard).
CONSIDERATIONS: On June 6, 2006 the Board of County Commissioners approved
Resolution No, 2006-142 authorizing the acquisition by gift or purchase of property required for
the construction of Vanderbilt Beach Road between Collier Boulevard and Wilson Boulevard
(Project No. 60168).
Parcel No. 147 contains 4.98 acrcs and is improved with a 3,783 sq. ft. single family home and a
763 sq. ft. detached garage, Two appraisals were performed by independent real estate
appraisers. The County's appraiser estimated the market value of the property at $1,385,800.
The owner's appraiser estimated the market value as $1,725,000.
Parcel No, 146 contains 4.27 acres and is vacant and contiguous to Parcel 147. Two appraisals
were also performed on Parcel 146. The County's appraiser estimated the market value of the
property at $350,000. ($81,967. per acrc), The owner's appraiser estimated the market value as
$511,000. ($119,672. per acre).
The total estimated values (both parcels) are: $2,236,000 (owner's appraisals); and $1,735,800
(County's appraisals). Therefore, staff is recommending the purchase of Parcel 146 at $369,000
and Parcel 147 at $1,581,000 for a total purchase price of $1,950,000. This figure represents a
split on the value of the improvements (as explained below) and a land value of $86,417 per
acre.
As to the value of the improvements, the parties compromised on a figure of $215 per square
foot (under air) as the value of the home. The owner's appraiser had estimated the value of the
home using a figure of $250 per square foot under air; while the County's appraiser had
estimated the value of the home using a figure of $165 per square foot under air. The house and
garage were constructed in 2004.
The remaining improvements (Pool/spa, porch, huge garage, site improvements, etc.) were
assigned a value of $337.299. (based upon the county's appraisal); bringing the total purchase
price for Parcel 147 to $1,581,000.
The owner's attorney has agreed to a payment of $20,000. for a total payment of attorney's fees
and costs, Had this settlement been reached with the property owners under threat of eminent
domain, attorney's fees according to the benefit formula set forth in Florida Statutes Chapter
Agenda Item No. 10H
March 25, 2008
Page 2 of 19
73.092 would have been $64,416. Extended possession of the premises was requested. With
consideration given to the current project schedule, possession of the premises until April 30,
2009 was factorcd into the purchase negotiations.
FISCAL IMPACT: The fiscal impact associated with this Executive Summary (including the
$1,950,000 purchase price, $20,000 for attorney's fees, $7,450 for a title policy and $150 for
recording fees) is approximately $1,977,600. and is available in impact fees and gas taxes.
Source of funds are gas taxes and impact fees,
GROWTH MANAGEMENT IMPACT: The recommendation is consistent with the County's
Growth Management Plan.
RECOMMENDATION: That the Board of County Commissioners of Collier County:
1. Approve the attached Purchase Agreement;
2. Authorize its Chairman to execute same on behalf of the Board;
3, Authorize the payment of all costs and expenses necessary to close the transaction;
4. Accept the conveyance of the property via Warranty Deed and authorize the County Manager
or his designee to record same in the public records of Collier County, Florida; and
5. Approve any and all budget amendments required,
Prepared by: Kevin Hendricks, Right-of-Way Acquisition Manager
Attachment: Purchase Agreement
Item Number:
Item Summary:
Meeting Date:
Page 1 of2
Agenda Item No. 10H
March 25, 2008
Page 3 of 19
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
10H
Recommendation to approve the purchase of a 4.98 acre improved property (parcel No. 147)
and a vacant, 4.27 acre parcel (Parcel No. 146), both of which are required for the
construction of the Vanderbilt Beach Road Extension project. Project No. 60168 (Fiscal
Impact $1,977,600.) (Jay Ahmad, Transportation/ECM Director)
3/25/2008 90000 AM
Prepared By
Kevin Hendricks
Transportation Services
Right Of Way Acquisition Manager
Date
TECM-ROW
3/4/20089:39:47 AM
Approved By
Joseph Delate
Transportation Services
Senior Project Manager
Date
Transportation Engineering and
Construction
3/6/20061 :47 PM
Approved By
Kevin Hendricks
Transportation Services
Right Of Way Acquisition Manager
Date
TECM-ROW
3/10/20081:17 PM
Approved By
Najeh Ahmad
Transportation Services
Director
Date
Transportation Engineering &
Construction Management
3/10/20063:16 PM
Approved By
Norm E. Feder, AICP
Transportation Services
Transportation Division Administrator
Date
Transportation Services Admin.
3111/200811:07 AM
Approved By
Lisa Taytor
Transportation Services
ManagemenUBudget Analyst
Date
Transportation Administration
3/11/20081:12 PM
Approved By
Sharon Newman
Transportation Services
Accounting Supervisor
Date
Transportation Services Admin
3/12/2008 4:4S PM
Approved By
Pat Lehnhard
Transportation Services
Executive Secretary
Date
Transportation Services Admin
3/13/20088:40 AM
A pproved By
OMS Coordinator
Applications Analyst
Date
file ://C :\Agenda Test\Export\ I 03-March%2025, %202008\ I O. %20COUNTY%20MANAGE...
3/19/2008
Page 2 of2
Agenda Item NO.1 OH
March 25, 2008
Page 4 of 19
Administrative Services
Information Technology
3/13/20068:48 AM
Approved By
Susan Usher
Senior ManagemenUBudget Analyst
Date
County Manager's Office
Office of Management & Budget
3/17/20086:23 PM
Approved By
James V. Mudd
County Manager
Date
Board of County
Commissioners
County Manager's Office
3/17120087:35 PM
fiJe://C:\AgendaTest\Export\ J 03-March%2025,%202008\ 1 0.%20COUNTY%20MANAGE... 3/19/2008
I
Agenda Item No. 10H
March 25, 2008
Page 50f 19
PROJECT: Vanderbilt Beach Road Extn. #60168
PARCEL No(s): 146 and 147
FOLIO No(s): 36913040008 and 36913120009
PURCHASE AGREEMENT
(Extended Possession of Improved Property)
p rrr
HASE AGREEMENT Is made and entered Into on this L Q ~
day of ~c /(/I'f'/<, 2008, by and between PAUL M. BREEHNE, JR., AND
DAWN M. BREEHNE, husband and wife, whose mailing address IS 790 21" Street NW,
Naples, FL 34120, hereinafter referred to as "SeUer"), and COLLIER COUNTY, a
political subdiVision of the State of Florida, whose mailing address IS 3301 Tamlami
Trail East. Naples, Florida 34112 (hereinafter referred to as "Purchaser').
WHEREAS, Seller owns certain improved property located at 790 21" Street NW,
Naples, FL 34120, and more particularly described as:
All of Tract 49, less the South 200 feet thereof, Golden Gate Estates, Unit
No.7, according to the plat thereof, as recorded In Plat Book 4, Pages 95
and 96, Public Records of Collier County, Florida,
together with all buildings, structures and Improvements, fixtures, built-In appliances,
refrigerators, stove, dishwasher, washer, dryer, ceiling fans, floor coverjngs and window
treatments, and Seller owns certain vacant property located at 791 21" Street NW,
Naples, FL 34120 and more particularly described as:
Tract 48, iess the South 210 feet thereof, Golden Gate Estates Unit No.7,
according to the plat thereof, as recorded in Plat Book 4, pages 95 and 96,
Public Records of Collier County, Florida, and as more specifically
described as Lot B In the Lot Line adjustment document recorded in Official
Records Book 1786, page 2051. of the Public Records of Collier County,
FlOrida.
(hereinafter collectively referred to as "Property"); and
Whereas, Purchaser requires the Property for right-of-way purposes as part of the
Vanderbilt Beach Road Extension Project: and
WHEREAS, Seller deSires to remain In possession of the reSidence, and has
requested the nght to occupy the premises until April 30, 2009, to which request
Purchaser has agreed; and
WHEREAS, Seller has agreed to sell and Purchaser has agreed to purchase the
Property subject to the terms and conditions that follow,
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. AGREEMENT
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.
2. PURCHASE PRICE
The purchase phce (the "Purchase Price") for the Property shall be $1,950,000,00 (U,S.
Currency) payable at time of closing. Said payment to Owner shall be full
compensation for the Property conveyed, Including all structural and site improvements
and fixtures, and all landscaping, trees and shrubs located thereon, and shall be in full
f rv;!1
~y
Agenda Item NO.1 OH
March 25. 2008
Page 6 of 19
and final settlement of all other costs and expenses Incurred by Seller, Including but not
limited to moving expenses. Said Purchase Pnce was agreed upon by the parties
hereto with full consideration having been given to the value of the extended
possession. Attorney's fees, including any expert fees and costs, In the amount of
$20,000.00 will be paid to Richard Yovanovich, Esq., c/o Goodiette Coleman &
Johnson, P.A" 4001 Tamiami Trail North, Suite 300, Naples, FL 34103 and shall be full
and final settlement of all fees and costs.
None of this Purchase Price is attributable to any personal property.
3, CLOSING
A. The Closing (THE "CLOSING DATE", "DATE OF CLOSING", OR
"CLOSING") of the transaction shall be held on or before one hundred 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 Callier County Attorney's Office, Administration Building, 3301 Tamiami
Trail East, Naples, Florida. Purchaser shall be entitled to possession as of
Closing, unless otherwise provided herein. Seller shall deliver the Property in
broom-clean and working condition, and free of all debns upon vacating the
premises.
B. 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 Flonda Bar and In accordance with law.
At or before 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:
1. 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, restnctions or conditions of record.
2. Combined Purchaser-Seller closing statement.
3, A "Grantor's Non-Foreign, Taxpayer Identification & "Gap" 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.
4, A W-g Form, "Request for Taxpayer Identification and Certification" as
required by the Internal Revenue Service.
5. Such evidence of authority and capacity of Seller and its representatives
to execute and deliver thiS Agreement and all other documents reqUired to
consummate this transaction. as reasonably determined by Purchasers
counsel and/or title company.
6. Certificate of insurance pursuant to Section 4L (below).
C. At the ClOSing, the Purchaser. or its aSSignee, shall cause to be delivered to
the Seller the follOWing:
1. A negotiable Instrument in an amount equal to Net Cash to Seller on the
Closing Statement. 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 "Requirements and Conditions" below, and the
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Page No. 2
Sellerslnibals
Agenda Item No. 10H
March 25, 2008
Page 7 of 19
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.
2. Funds payable to the Seller representing the Purchase Price shall be
subject to adjustments and pro-rations as hereinafter set forth,
D. Purchaser shall pay all fees to record any curative instruments required to
clear title, all Warranty Deed recording fees, and any and all costs and/or fees
associated with securing and recording a Release or Subordination of any
mortgage, lien or other encumbrance recorded against the Property; provided,
however, that any apportionment and distribution of the full compensation amount
in Section 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 Section 2.
E. Seller, at its sole cost and expense, shall pay at Cioslng all documentary
stamp taxes due upon the recording of the Warranty Deed, in accordance with
Chapter 201.01, Florida Statutes, unless the Property is acquired under threat of
condemnation. The cost of a Titie Commitment shall be paid by Purchaser along
with the cost of an Owner's Form B Title Policy, issued pursuant to the
Commitment proVided for in Section 8, "ReqUIrements and Conditions" (below),
F. 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,
G, A Security Deposit In the amount of Five Thousand and NO/100 Dollars
($5,000.00) will be paid out of the Seller's closing proceeds into an interest-
bearing account under Purchaser's control to be held dUring the Seller's
occupancy in accordance with the provisions of Section 4B (below).
4. OCCUPANCY BY SELLER AFTER CLOSING
A. Seller may occupy the Property after Closing until April 30, 2009 (the "Tenn"),
In the event Seller and Purchaser agree to extend the Term, an additional sum will
be required from Seller and shall be calculated by multiplYing the number of
months of this Extended Term by a monthly amount of $1,000.00. This Fee must
be paid to the Purchaser In a lump sum, no later than thirty (30) days before
expiration of the initiai Term, whereupon Purchaser and Seller shall execute an
addendum to thiS Agreement memonalizlng this Extended Term of possessIOn.
Purchaser's approval of SUGh extension shall not be unreasonably withheld,
provided however, that said extended occupancy shall not exceed a penod of 6
months,
B. At Closing, the sum of Five Thousand and NO/100 Dollars ($5,000.00) will be
deposited into an Interest-bearing account as security for any damages suffered
by the Property during the Seller's occupancy ("Security Deposit"), The Security
Deposit plus accrued interest will be paid to Seller at the end of its Term of
occupancy, provided there has been no damage to the Property caused by the
negligence or Intentional acts of Seller or anyone acting with Seller's knowledge
and consent. Upon the vacating of the Property, the Purchaser will have twenty
(20) days to return the Security Deposit or give Seller written notice of Purchaser's
Intention to Impose a claim upon the Security Deposit. In the event Purchaser
intends to impose a claim upon a part of all of the Security Deposit. it will provide
Seller with an explanation of the damage, an estimate of repair and an accounting
of the deposit balance.
/P-:J
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Page No, :)
Seller'slniuals
Agenda Item NO.1 OH
March 25, 2008
Page 8 of 19
C. When the Property is partly damaged or destroyed by fire or other casualty
not due to Seller's willful or negligent act or that of anyone on the Property with the
knowledge or consent (actual or Implied), of Seller, Purchaser wHl make repair as
soon as reasonably possible. Purchaser shall also be responsible for the repair to
fixtures or appliances in excess of the limit set forth In Section 4F (below),
provided such repair IS not necessitated by Seller's misuse, waste or neglect of
the Property, or that of anyone on the Property with Seller's knowledge and
consent (actual or implied). If the Property is rendered un-Inhabitabie due to fire,
storm or other casualty, then this Agreement shall automatically terminate, with the
sole duty of Purchaser then being to refund to Seller the security deposit. plus
accrued Interest. Purchaser shall not be liable for any damage or injury to Seller
and his or her property by reason of any water damage sustained by Seller and his
or her property, or by reason of the breakage, leakage, or obstruction of water and
sewer lines or other breakage in or about the Property.
D. Seller agrees to pay all utility services as they come due, Including eiectncity,
telephone, gas, cable teleVISion, water, sewer. and solid waste collection, and shall
arrange for a final billing and payment of same at the time Seller vacates the
Property, and acknowiedges that Purchaser will deduct all such unpaid bills from
the Security Deposit. Seller shall keep the property free from pests and insure that
the alf conditioning system is in operation to maintain a reasonable room
temperature until the Seller vacates the property.
E. Seller will use the Property only as its primary reSidence. Seller Is prohibited
from allowing persons, other than its immediate family members, to reSide on the
Property,
F. Seller shall maintain the Property, Including all Systems and EqUipment, In
clean and working condition at all times. Seller shall use all Systems and
EqUipment in a reasonable manner. Seller shall Immediately make and pay for all
reqUired repairs to the piumbing, range, heating apparatus, washer-dryer, air
conditioning, refrigerator, dishwasher and electric and gas fixtures, provided the
cost of said repairS does not exceed Ten Thousand Dollars ($10,000.00).
Purchaser reserves the nght to enter upon the Property and repair, at the Seller's
expense. all damage or injury to the fixtures and appliances In the event Seller
fails to effect repairs after 10 days' notice, Purchaser's election not to effect
repairs shall not relieve Seller of its obligation to repair or subject Purchaser to
liability for its election.
G, Seller shall comply with all governmental regulations concerning the use of
the Property and not permit or suffer any Illegal activity or use. or permit to be
made any disturbance, noise or nUisance whatsoever, which would be detrimental
to the peace, quiet and comfort of other persons In the VICinity of the Property, or
affect the insurance risk factor to the Property.
H. Seller shall permit Purchaser's agent or employee to enter the Property at
any reasonabie time. upon 24 hours notice, during the term of thiS Agreement to
Inspect the Property or make any needed repairs.
I. Seller will surrender possession of the Property at the expiration of the Term
in as good a condition as of the Effective Date, reasonable wear and tear and acts
of God excepted. Seller shall not be responSible to repair or repiace the items or
deficiencies, if any, which existed pnor to the Closing, not addressed under the
Inspection, Section 6 of thiS Agreement and agreed to by Purchaser. If there are
items or deficiencies prior to dosing. they shall be set forth in a list, attached to
thiS agreement and marked Exhibit "A",
J. Seller shall not aiter or make additions to the Property without the
Purchaser's consent. Seller shall not deface, damage or remove any part of the
Property or permit any person to do so, nor shall any of the appliances, Including
4M,)he refrigerator, range, microwave oven, dishwasher. washer and dryer be
/ / ~~replaced without the Purchaser's consent.
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Sellllr'sloitials
Page No, 4
Agenda Item NO.1 OH
March 25, 2008
Page 9 of 19
K. DEFAULT. Seller will be deemed in default of this Agreement if Seller fails
to perform any of the covenants, promises or obligations contained In this Seelion
for a period of ten (10) days after notice of such default. Upon Seller's default,
County may terminate this Agreement upon twenty (20) days written notice to
Seller, re-enter and take possession of the Property, whereupon the term thereby
granted and all rights of Seller to occupy the Property shall terminate. The Seller
shall remain liable for any damage suffered by the Property because of Seller's
breach of any of the covenants of this Agreement. and such termination shall be
without prejudice to the Purchaser's nght to collect said damages. Purchaser and
Seller shall have the right to pursue any and all remedies available under this
Agreement or applicable law.
L. Seller shall be required to maintain insurance on the Property during the
entire Term, and any Extended Term, which policy shall include contents coverage
of $100,000, premises liability with limits of $300,000, and loss of use coverage.
Purchaser will be named as an additional insured and the policy premium for the
Term of occupancy will be paid In advance at Closing. Seller will be required to
provide a certificate of Insurance prior to ClOSing.
M. The terms and conditions contained in this Section shall survive Cioslng and
are not deemed satisfied by conveyance of title.
5. PROPERTY CONDITION DISCLOSURES
A. General. Seller represents that Seller knows of no facts or conditions
materially affecting the value of the Property, except those which are readily
observable by Purchaser, or which have been disclosed to Purchaser by Seller in
writing and furnished to Purchaser prior to the Effective Date of this Agreement.
B. Radon Gas. Flonda law requires the following disclosure: Radon IS a
naturally occurring radioactive gas that, when it has accumulated in a building In
sufficient quantities, may present health nsks to persons who are exposed to it
over time. Levels of radon that exceed federal and state gUidelines have been
found in buildings in Florida. Additional information regarding radon and radon
testing may be obtained from your county health department. Seller has no
knowledge of the eXistence of radon on the Property or any radon mitigation
having been performed on the Property.
C. Lead Based PainVPaint Hazards. if construelion of the reSidence on the
Property was commenced prior to 1978, Seller is required to complete, and Seller
and Purchaser are required to sign and attach to this Agreement. the addendum
entitled "Lead-Based Paint and/or Lead-Based Paint Hazards Attachment to Sales
Contract: Disclosure of Information and Acknowledgement."
D. Mold. Molds are commonly found both indoors and outdoors. Intenor
infestation by certain moids may cause property damage and health problems for
some persons. Seller has no knowledge of any mold remediation having been
performed on the Property.
E. Warrantv. Except as to any faels or conditions disclosed to Purchaser as
required under Seelion 5.A. above, Seller warrants that all major appliances and
equipment: sprinkler, well, septic, heating, cooling, electrical and plumbing and
security systems; major mechanical components; roof (including fascia and
soffits); ceiling; struelural walls; foundation; swimming pool, spa and pool/spa
deck; seawalls; docks; boat lifts/davits and related electrical and mechanical
components, if any (collectively "Systems and EqUipment") are in Working
Condition. "Working Condition" shall mean operating in a manner In which the
Systems and Equipment were designed to operate. The roof, ceiling, interior and
exterior walls, foundation, swimming pool, spa and pool/spa deck, if any, shall be
considered In Working Condition if structurally sound and watertight. Seawalls
and docks, if any, shall be considered in Working Condition if structurally sound.
A tfJ Seller shall not be required to repair or replace any Cosmetic Condition.
/' "Cosmetic Condition" shall mean an aesthetic imperfection which does not affect
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SeIJarslnltials
Agenda item NO.1 OH
March 25, 2008
Page100f19
the Working CondITion of the item, including corrosion; tears: worn spots;
discoloration of floor covering or wallpaper or Window treatments; missing or tom
screens; nail holes; scratches: dents; chips; caulking; pitted pool surfaces; minor
cracks In Windows, driveways, sidewalks, spa/pool decks and garage, tile, lanai
and patio floors; and cracked roof tiles, curling or worn shingles and limited roof
life, so long as there is no evidence of structurai damage or leakage.
6. INSPECTIONS
A. Insoection Period. Purchaser shall have 60 days from the Effective Date
(Inspection Period) to have the Property and Improvements thereon inspected at
Purchaser's expense as follows: (a) Systems and Equipment, by an appropriately
Fiorida licensed Inspection company or licensed contractor, and/or (b) radon gas,
by a Fiorida certified radon measurement technrcian or specialist, and/or (c) lead-
based paint and hazards, by an EPA-certified lead exposure risk assessor, and/or
(d) termites or other wood-destroying organisms, by a certified pest controi
operator (collectiveiy the "Inspection Items"). Upon reasonable notice, Seller shall
proVide access and utilities service to the Property to facilitate inspections.
B. Election and Response. If any inspection conducted dUring the Inspection
Period reveals: (1) that any Systems and Equipment are not In Working Condition,
and/or (2) the presence of radon gas at a level In excess of EPA action levels,
and/or (3) the presence of lead-based paint or paint hazards required abatement
under HUD/EPA protocols, and/or (4) the eXistence of active Infestation by
termites Dr other wood-destrOYing organisms and/or Visible damage caused by
active or past infestation (coliectively the "Defective Inspection items"), Purchaser
shall, within 15 days after expiration of the Inspection Period: (a) notify Seller of
any Defeelive Inspection Items. and (b) furnish to Seller a copy of the Inspeelion
report(s) documenting the Defective Inspection Items, and (c) notify Seller of
Purchaser's election either to: (i) receive a credit from Seller at clOSing In lieu of
any repairs, replacements, treatment, mitigation or other remedial action
necessary to bnng the Defective Inspection Items into compliance with the relevant
standards set forth above (the "Remedial Action"), or (il) have Seller take Remedial
Action at Seller's expense prior to closing. If Purchaser elects to receive a credit,
the amount of the credit shall be equivalent to the estimated costs of any
Remedial Action and shall be determined not later than the earlier of Sellers
Response Deadline. or 10 days prior to the Closing. If Purchaser elects (i), Seller
shall not be required to take any Remedial Action. If Purchaser makes no
election, Purchaser shall be deemed to have elected to receive a credit at ClOSing.
C. Not later than 15 days from receipt of the written notice and Inspection
report(s) from Purchaser ("Seller's Response Deadline"), Seller shall notify
Purchaser whether Seller will give Purchaser credit equal to the cost of repairs or
take remedial action, whichever IS requested by Purchaser. If Seller refuses
Purchaser's election by the Seller's Response Deadline, then Purchaser may
terminate this Agreement within 10 days of Seller's Response Deadline. If
Purchaser does not elect to so terminate thiS Agreement, Purchaser IS deemed to
have accepted the Property In the condition It eXisted on the Effective Date, except
that Purchaser retains the rights set forth in Section 6.G. (Walk Through
Inspection) below. If Seller fails to respond by the Seller's Response deadline.
Seller shall be deemed to have accepted Purchaser's election and Purchaser may
receive credit at Closing as set forth above.
D. If Purchaser does not have the Inspection Items Inspected, or fails to do so
within the Inspection Period, or fails to timely report any Defective Inspection Items
to Seller, Purchaser shail be deemed to have accepted the Property In the
condition it eXisted on the Effective Date, except that Purchaser retains the rights
set forth in Section B.G. (Walk Through Inspection) below.
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E. Remedial Action shall be deemed to have been properly performed if (1 ) the
Systems and Equipment are placed in Working condition (as defined above), (2)
radon gas within the reSidence on the Property is reduced to below EPA action
leveis, (3) lead-based paint and paint hazards on the Property are removed or
Page NO.6
Sel!e~s iniUals
Agenda Item No. 10H
March 25, 2008
Page 11 of 19
contained in accordance with HUD/EPA gUidelines, and (4) any active infestation
of termites or other wood-destroymg organisms is exterminated or treated, and aii
visible damage caused by active or past Infestation IS repaired or replaced. Seller
shall make a diligent effort to perform and complete aii Remedial Action pnor to
the Closing Date, failing which a sum equivalent to 150% of the estimated costs of
completing the Remedial Action shall be paid by Seller into escrow at Cioslng
pending completion.
F. No cost to repair or replace any Systems and Equipment shall exceed the fair
market value of that item if it were In Working Condition. If the costs do exceed
fair market value, than either Seller or Purchaser may eject to pay such excess,
failing which, either party may terminate this Agreement upon written notice.
G. Walk-Throuoh Inspection. Purchaser (or a designated representative) may
conduct a walk-through Inspection of the Property prior to Cioslng and pnor to
possession, to confirm: (1) completion of any Remedial Action agreed to by Seller
in Section 6.8 "Election and Response" above, (2) that the personal property items
which are being conveyed as part of thiS Agreement remain on the Property, (3)
that the personal property items which are not being conveyed as part of this
Agreement have been removed from the Property, and (4) that Seller has
maintained the Property as required in Sections 3 and 7. Upon reasonable notice,
Seller shall provide access and utilities service to the Property to facilitate the
walk-through Inspection.
H. Inspections durina Occuoancv. Purchaser may enter upon the Property with
at least 24-hour notice to Seller for purposes of inspecting the Property for
compliance with the terms of Section 4 of this Agreement or effecting repairs.
7. RISK OF LOSS
Seller shall maintain the Property (including without limitation the iawn, shrubbery, and
landscaping) in the condition existing on the Effective Date until Closing or the
termination/expIration date of Purchaser's possession, whichever is later, except for
ordinary wear and tear and any Remedial Action agreed to by Seller under Section 6B
above. Any future loss and/or damage to the Property between the Effective Date and
the Closing or end of Purchaser's term of possession, whichever IS earlier, shall be at
Seller's sole risk and expense, except as provided in Section 4.
8. REQUIREMENTS AND CONDITIONS FOR CLOSING
Upon execution of this Agreement by both parties or at such other time as specified
within this Section, 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:
A. Within fifteen (15) days after the date hereof. Purchaser shall obtain as
evidence of title an AL TA Commitment for an Owners Title Insurance Policy
(AL TA Form B-1970) covering the Property, together with hard copies of all
exceptions shown thereon. Purchaser shaii 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 shaii deliver to the Seller written notice of its intention to
waive the applicable contingenCies or to termmate this Agreement.
8. If Purchaser shall fail to advise the Seller in writing of any such objections in
Sellers tltie In the manner herein required by this Agreement, the tilie shall be
deemed acceptable. Upon notification of Purchasers objection to title, Seller shall
have thirty (30) days to remedy any defects In order to convey good and
marketable titie, except for liens or monetary obligations which will be satisfied at
Closing. Seller, at its sole expense, shaii use its best efforts to make such titie
good and marketable. In the event Seller is unable to cure said objections within
f fi>said time peflod, Purchaser, by providing written notice to Seller within seven (7)
~
~ Page No.7
Seiler's Initials
Agenda Item NO.1 OH
March 25, 2008
Page 12 of 19
days after expiration of said thirty (30) day period, may accept titie as it then is,
waiving any objection, or may terminate the Agreement.
C. 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 Pnce shall be made based upon any
change to the total acreage of the Property 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 iands of others, or (c) lack of iegal 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. Purchaser shall have sixty (60) days from the Effective Date of thiS
Agreement to notify Seller in writing 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 sixty (60) days from the date of receipt of said
notification, 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, Of 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.
g. TERMiNATION AND REMEDIES
A. If Seller shall have failed to perform any of the covenants and promises
contained herein, which are to be perfonned by Seller, except for those proviSions
In Section 4, within fifteen (15) 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 nght
to seek specific performance of thIS Agreement.
B. If the Purchaser has not terminated this Agreement pursuant to any of the
provisions authoriZing such termmation, 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, except for the terms and conditions in Section 4, proVided Seller
is not in default, then as Seller's sole remedy, Seller shall have the nght to
terminate and cancel this Agreement by giVing written notice thereof to Purchaser,
whereupon $500.00 shall be paid to Seller as liquidated damages which shali be
Seller's sole and exciuslve remedy, and neither party shall have any further liability
or obligation to the other except as set forth in Section 12, Real Estate Brokers,
hereof. The parties acknowiedge and agree that Seller's actuai 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.
C. The parties acknowledge that the remedies described herein and in the other
provisions of this Agreement proVIde mutually satisfactory and sufficlent remedies
to each of the parties, and take into account the peculiar risks and expenses of
each of the parties.
D. This Section does not apply to any defaults by Selier of the obligations
(,...0contalned in Section 4 of thiS Agreement.
~~ ---
Seller'slnilials
Page No, B
Agenda Item NO.1 OH
March 25, 2008
Page 13 of 19
10. SELLER'S AND PURCHASER'S REPRESENTATIONS AND WARRANTIES
Seller intends for Purchaser to rely on the representations contained in this Section in
entering into this Agreement and warrants the following:
A. Seller has 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.
B. Seller has full right, power, and authority to own and operate the Property,
and to execute, deliver, and perform ijs 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 authorizJng 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.
C. The warranties set forth in thiS Section are true on the Effective Date of this
Agreement and as of the date of Closing. Other than those obligations that
specifically survive ciosing, Purchaser's acceptance of a deed to the said Property
shall 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.
D. Seller and Purchaser agree to do all things which may be required to give
effect to this Agreement immediately as such reqUIrement is made known to them
or they are requested to do so, whichever is the earlier.
E. 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, adverseiy affect Sellers ability to sell the Property to
Purchaser according to the terms of this Agreement.
F. No party or person other than Purchaser has any right or option to acquire
the Property or any portion thereof.
G. Until the date fixed for Closing or as long as this Agreement remains in force
and effect, Seller shall not encumber or convey any portion of the Property or any
lights therem, nor enter into any agreements granting any person or entity any
rights wijh 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.
H. Seller represents that they have (it has) no actual knowledge that any
pollutants are or have been discharged from the Property, directly or indirectly into
any body of water. Seller represents that during their time of possession 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 Jnquiry by any authority with respect thereto. Seller represents that they have (it
has) no actuai knowledge that there is ground water contammation on the Properly
or potential of ground water contamination from neighboring properties. Seller
represents that during their time of possession no storage tanks for gasoline or
any other hazardous substances are or were iocated on the Property. Seller
represents that dunng their time of possession none of the Property has been
!('::f1 used as a sanitary landfill.
~~'9
Selie~s Int~a1s
Page No.9
Agenda Item NO.1 OH
March 25, 2008
Page 14 of 19
I. Seller has no actual knowledge that the Property, and/or that Sellers
operations concerning the Property, are in violation of any applicable Federal,
State or local statute, law or reguiation, or of any notice from any governmental
body has been served upon Seller claiming any violation of any law, ordinance,
code or regulation or requinng 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, ord inances. codes or regulation with
which Seller has not complied.
J. 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.
K. Seller has no actual knowledge that there are any suits, actions or arbitration,
bond Issuances or proposals therefore, proposals for public Improvement
assessments, pay-back agreements, paving agreements, road expansion or
improvement agreements, utility moratoriums, use moratoriums, improvement
moratoriums, admintstrative or other proceedings or governmental investigations
or requirements. fonnal 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.
L. Seller acknowledges and agrees that Purchaser IS ente"ng into thiS
Agreement based upon Seller's representations stated above and on the
understanding that Selier 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 adversely affect the zoning or
physical condition of the Property or its intended use by Purchaser. Seller also
agrees to notify Purchaser promptly of any change rn the facts contained in the
foregoing representations and of any notice or proposed change In the zoning, or
a"y other action or notice, that may be proposed or promuigated by any third
parties or any governmental authorities haVing Jurisdiction of the development of
the property which may restrict or change any other conditio" of the Property.
M. Seller represents, warrants and agrees to indemnlfy, 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, bui not limited to, the Comprehensive Environmental Response,
Compensation, and liability Act of 1980, 42 US.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 fights
of Purchaser, hereunder. shall survive ClOSing for a pe"od of 12 months after the
extended possession Is tenninated and the Sellers vacate the Property, and are
not deemed satisfied by conveyance of title.
11. NOTICES
Any notice, request, demand, rnstruction or other communication to be gjven to either
party hereunder shall be in writing sent by faCSImile with automated confirmation of
receipt, or registered or certified mall, return receipt requested, postage prepaid or
personal delivery addressed as foJiows:
if to Purchaser:
//'-V)
~4:)
Transportation Engineenng & Construction Management
Attn: KeVin Hendncks, Right-of-Way AcqUisition Manager
2885 South Horseshoe Drive
Page No, 10
SeNer'slnilials
With a copy to;
If to Seller:
With a copy to:
Agenda Item No. 10H
March 25, 2008
Page 15 of 19
Naples, Florida 34104
Telephone 239-252-8192; Fax 239-530-6643
Ellen T. Chadwell,
Assistant County Attorney
Office of the County Attorney
Harmon Turner Building
3301 Tamiami Trail East
Naples, Florida 34112
Telephone 239-252-8400
Fax 239-252-6300
Paul and Dawn Breehne
79021" St. NW
Naples, FL 34120-1814
Telephone 239-304-1889
Richard Yovanovich, Esq.,
c/o Goodlette Coleman, Johnson, Yovanovlch & Koester
4001 Tamiami Trail North, Suite 300
Naples, FL 34103
Teiephone (239) 435-3535
Fax (239) 435-1218
The addressees, addresses and numbers for the purpose of this Section may be
changed by either party by giving written notice of such change to the other party in the
manner provided herein. For the pU'l"ose of changing such addressees, addresses
and numbers 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. Notice shall be deemed given in compiiance with this Section upon receipt
of automated fax confirmation or upon on the fifth day after the certified or registered
mail has been postmarked, or receipt of personal delivery.
12. REAL ESTATE BROKERS
Any and all brokerage commissions or fees shall be the sole responsibility of the Seller
and shall be paid at Closing. Seller shall indemnify Purchaser from and against any
claim or liability for commission or fees to any broker or any other person or party
claiming to have been a procuring clause or engaged by Seller as a real estate broker,
salesman or representative, In connection with this Agreement.
13. MISCELLANEOUS
A. ThiS Agreement may be executed in any manner of counterparts which
together shall constitute the agreement of the parties.
B. This Agreement and the terms and provisions hereof shall be effective as of
the Effective Date 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.
C. 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.
D. Captions and section headings contained in this Agreement are for
convenience and reference only; in no way do they define, describe, extend or
timit the scope or intent of this Agreement or any provisions hereof.
/J,t-!) E. All terms and words used In this Agreement, regardless of the number and
f "" gender in which used. shall be deemed to inciude any other gender or number as
"'~
Beliefs In~lals
Page No. 11
Agenda Item No.1 OH
March 25, 2008
Page 16 of 19
the context or the use thereof may require.
F" 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.
G. 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.
H. 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 wrijten public disclosure, according to s. 286.23,
Fla. Stat., 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 wijh the Federai
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.)
I. ThiS Agreement IS governed and construed in accordance wijh the laws of
the State of Florida.
J. The Effective Date of thiS Agreement will be the date of execution of this
Agreement by the last signing party.
K. This Agreement and the exhibits aUached hereto contain the entire
agreement between the parties, and there are no promises, representations,
warranties or covenants by or between the parties not Included in this Agreement.
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.
L. TIME IS OF THE ESSENCE to this Agreement.
M. Seller may not assign, sublease, or license any rights arising under this
Agreement without the written consent of the Purchaser.
N. The parties hereto agree and acknowledge that this Agreement is not a lease
but rather a contract for occupancy (extended possession) of the Property as a
condition of sale which is not subject to Chapter 83, Flonda Statutes. The parties
do not Intend to invoke any of the obligations or remedies contained In Chapter 83,
and the terms and conditions contained herein shat! be construed in accordance
with the parties intent and shall be given theif plain meaning without reference or
application of s. 83.43, Fia. Stat., or any other portion of Chapter 83.
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:
Deputy Clerk
Tom Henning, Chairman
Selle(slnitials
Page No. 12
AS TO OWNER: v:;
DATED: 7./h-JI & '?
/ '
~b_
Witness ( ignature)
r:,o.,^j~ i\Cr"",
me (Prin 01Type)
,
,~.-
PAUL
Da"df M.~
DAWN M. REEHNE
Approved as to form and
legal sufficiency:
-/'lL Cl) & .h~
Assistant County Attorney
t,J)
c:f'-\7
Seller's Initials
Agenda Item NO.1 OH
March 25, 2008
Page 17 of 19
Page No. 13
Agenda Item NO.1 OH
March 25. 2008
Page 18 of 19
EXHIBIT "A" - LIST OF ACCEPTED DEFICIENCIES
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