Resolution 2020-015 RESOLUTION NO. 2020- 1 5
A RESOLUTION SUPERSEDING RESOLUTION NO. 2008-387 AND AUTHORIZING
THE ACQUISITION BY GIFT OR PURCHASE OF FEE SIMPLE AND EASEMENT
PARCELS NECESSARY FOR THE CONSTRUCTION OF ROADWAY, DRAINAGE
AND UTILITY IMPROVEMENTS REQUIRED FOR THE EXPANSION AND
EXTENSION OF VANDERBILT BEACH ROAD FROM COLLIER BOULEVARD TO
16TH STREET NE AND MASSEY STREET FROM VANDERBILT BEACH ROAD TO
SOUTH OF MOCKINGBIRD DRIVE (PROJECT NO. 60168).
WHEREAS, the expansion and extension of Vanderbilt Beach Road from Collier
Boulevard to 16th Street NE and Massey Street from Vanderbilt Beach Road to south of
Mockingbird Drive (Project No. 60168) (hereinafter referred to as "the Project"), is included in
Collier County's Five-Year Transportation Work Program; and
WHEREAS, plans and specifications have been prepared for construction of the Project;
and
WHEREAS, construction of the Project will require the acquisition of fee simple and
perpetual and temporary easement interests; and
WHEREAS, on December 16, 2008 the Board adopted Resolution No. 2008-306
authorizing the acquisition of fee simple and easement parcels necessary for the expansion and
extension of Vanderbilt Beach Road from Collier Boulevard to the Corkscrew Canal; and
WHEREAS, the Board desires to extend the limits of acquisition and delegation of
purchasing and settlement authority for the Project from the Corkscrew Canal to 16th Street NE
and along Massey Street from Vanderbilt Beach Road to south of Mockingbird Drive; and
WHEREAS,the expansion and extension of Vanderbilt Beach Road from two lanes to four
lanes (and, ultimately, six lanes) from Collier Boulevard to 16th Street NE and improvement of
Massey Street from Vanderbilt Beach Road to south of Mocking Bird Drive,within the boundaries
depicted in Exhibit "A" attached hereto and incorporated herein, is necessary in order to protect
the health, safety and welfare of the citizens of Collier County, and will assist Collier County in
meeting certain concurrency requirements of the County's Growth Management Plan.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that:
1. The Board has determined that the expansion and extension of Vanderbilt Beach Road
from Collier Boulevard to 16th Street NE and Massey Street from Vanderbilt Beach Road to south
of Mockingbird Drive as part of the Vanderbilt Beach Road Extension Project(Project No. 60168)
is necessary and in the public's best interest in order to protect the health, safety and welfare of the
citizens of Collier County.
2. The acquisition of fee simple and easement parcels for construction of the Project is an
integral part of the County's long-range planning effort and is included in the Capital Improvement
Element of the Collier County Growth Management Plan, as approved by the Florida Department
of Economic Opportunity.
3. It is necessary and in the best interest of Collier County for the Board to authorize the
acquisition of fee simple parcels,permanent easements for road right-of-way,drainage,utility, and
boat ramp purposes, and temporary easements for construction and driveway restoration purposes
necessary for the construction of the Project within the project boundaries identified in Exhibit
"A"(attached hereto and by reference made a part hereof),and the County Manager or his designee
is hereby authorized and directed to acquire said fee simple and easement parcels by either gift or
purchase.
4. The Board hereby directs the County Manager or his designee to make purchase offers to
property owners for the fee simple and easement parcels required to construct the Project, which
[19-ECM-02446/1506662/1] -Page 2-
offers shall be based upon estimates of the market value of the subject real estate which have been
developed by licensed state-certified general real estate appraisers.
5. In view of the differences of opinions between real estate appraisers regarding market value
and full compensation to property owners, and in view of the cost of condemnation, the Board
hereby authorizes the County Manager or his designee to approve purchases of fee simple and
easement parcels where the property owner has agreed to sell to the County at, or up to twenty five
percent (25%) above the County's appraiser's estimate of full compensation, with the maximum
approval authority not to exceed $50,000 over the County's appraiser's estimate of full
compensation, and the Board hereby authorizes the approval and execution of closing statements
related to said transactions by the County Manager or his designee. Any and all purchases in
excess of one- hundred-twenty-five percent (125%) of the County's appraiser's estimate of full
compensation, or over $50,000 above the County's appraiser' estimate of full compensation,
whichever amount is the lesser of the two, shall require separate Board approval. Such purchase
approvals are hereinafter referred to as "Administrative Settlements."
6. The Board hereby authorizes its Chairman, and any subsequent Chairman for the life of
the Project, upon the approval of the Office of the County Attorney as to form and legality, to
execute purchase agreements, easement agreements, and subordinations of utility interests
incorporating agreements for reimbursement for facilities relocation, in substantially the same
form as the Sample Purchase Agreements, attached hereto and made a part hereof as Exhibits
"Bl", B2", "B3" and "B4", and that Sample Subordination of Utility Interests and Agreement for
Reimbursement for Additional Facilities Relocation, attached hereto and made a part hereof as
Exhibit "C", and/or other documents approved by the Office of the County Attorney to close real
[19-ECM-02446/1506662/1] -Page 3- CA(`
estate transactions, where the property owner has agreed to sell to the County at appraised value,
or within the Administrative Settlement provisions of Paragraph 5 (above).
7. Said Administrative Settlement authority is delegated by the Board to the extent that such
delegation does not conflict with the provisions of Section 125.355, Florida Statutes.
8. The Board hereby authorizes the Finance Department to issue warrants, and/or to make
wire transfers, payable to the property owner(s) of record, to title companies and attorneys closing
real estate transactions, and to others who may possess an equitable interest in the subject real
property parcels in those amounts as shall be specified on a closing statement.
9. All title to real property which has been acquired in the manner described above shall be
deemed "accepted" by the Board of County Commissioners, as the governing body of Collier
County, Florida, a political subdivision of the State of Florida, and as such, staff is hereby
authorized to record in the Public Records of Collier County, Florida, conveyance instruments
such as deeds, easements, as well as any other instruments that may be required to remove, release
or subordinate the lien of any encumbrance on the subject real estate, in order to effect constructive
notice of the County's interest in real property.
11. Resolution No. 2008-387 is hereby repealed in its entirety.
This Resolution, adopted on this Iy4' day of J L,,a4- , 2010 after motion,
. e'cofid'a d majority vote.
,ATTEST �;> BOARD OF COUNTY COMMISSIONERS
`'CRYSTAAI'K KINZEL, Clerk of the OF COLLIER COUNTY, FLORIDA
Circt,��'rt.? Comptroller
. e' ;wTw f._►L% / C5Z% B /4/0*, a;%�
' 'S •S to Chairman's Burt L.Saunders
Signature only. Chairman
A!pro lel to forma • le?.l'ty:
Assistant o
unty Atto.ney
[19-ECM-02446/1506662/1] -Page 4-
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EXHIBIT "Bl "
SAMPLE PURCHASE AGREEMENT
(Partial Acquisition — Fee Simple)
PROJECT: 60168 Vanderbilt Beach Road Ext.
PARCEL:
FOLIO NO.:
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT is made and entered into on this day of
, 20_, by and between , whose mailing address is
(hereinafter referred to as "Seller"), and COLLIER COUNTY, a
political subdivision of the State of Florida, whose mailing address is 3299 Tamiami Trail
East, c/o the Office of the County Attorney, Suite 800, Naples, Florida 34112 (hereinafter
referred to as "Purchaser").
WHEREAS, Purchaser desires to purchase a portion of Seller's property as
described on attached "Exhibit A"which is incorporated herein by reference, together with
all structures and improvements thereon (hereinafter referred to as "the Property"); 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 price (the "Purchase Price") for the Property shall
be and 00/100 DOLLARS ( $ ) (U.S. Currency) payable
at time of closing. The Purchase Price, subject to the apportionment and distribution of
proceeds pursuant to Paragraph 3D of this Agreement, shall be full compensation for the
Property conveyed, including all structures, improvements, fixtures, landscaping, trees,
and shrubs, located thereon, and shall be in full and final settlement of all claims against
the Purchaser, including all attorneys' fees, expert witness fees and costs as provided for
in Chapter 73, Florida Statutes. None of this Purchase Price is attributed to any personal
property.
3. CLOSING
A. TIME IS OF THE ESSENCE. Therefore, 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 or within thirty (30) days of receipt by purchaser of all fully executed
closing documents and documents necessary to convey marketable title free of any
liens, encumbrances, exceptions, or qualifications, whichever is later, unless
extended by mutual written agreement of the parties hereto. The Closing shall be
held at Collier County Growth Management Department, Transportation Engineering
Division, 2885 Horseshoe Drive South, Naples, Florida 34104. Purchaser shall be
entitled to possession at the time of Closing, unless otherwise provided herein.
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 Florida Bar and in accordance with law.
Within ten (10) days of the Effective Date of this Agreement, Seller shall provide
Purchaser with a copy of any existing title insurance policy and survey. Three (3)
weeks before the Closing, the Seller shall cause to be delivered to the Purchaser
any documents necessary to convey marketable title and the following documents
and instruments duly executed and acknowledged, in recordable form:
1. General 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.
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-9 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.
6. All other documents required to consummate this transaction, as reasonably
determined by Purchaser's counsel and/or title company.
2
C. At the time of Closing, the Purchaser, or its assignee, shall cause to be delivered
to the Seller a County Warrant or wire transfer in an amount equal to Net Cash to
Seller on the Closing Statement. No funds shall be disbursed to Seller until there is
verification that there has been no adverse change to the state of the title to the
Property since the date of the last title commitment, referenced in Paragraph 5 "Title
Defects" below, and the title company is irrevocably committed to issue the Owner's
title policy to the Purchaser in accordance with the commitment.
D. Purchaser shall pay all fees to record any curative instruments required to clear
title, and all Warranty Deed recording fees.
E. There shall be deducted from the proceeds of sale all prior year ad valorem
taxes and assessments levied against the parent tract property which remain unpaid
as of the date of Closing.
F. Seller, at its sole cost and expense, shall pay at Closing all documentary stamp
taxes due upon the recording of the General Warranty Deed, in accordance with
Chapter 201, Florida Statutes, unless the Property is acquired under threat of
condemnation.
4. IRRIGATION SYSTEM AND MISCELLANEOUS IMPROVEMENTS
A. Seller agrees to relocate any existing irrigation system (if any) located on the
Property including any irrigation lines, electrical wiring and sprinkler valves, etc.,
prior to the construction of the project without any further notification from Purchaser.
Seller assumes full responsibility for the relocation of the irrigation system (if any) on
the remainder property and its performance after relocation. Seller holds Purchaser
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.
B. If Seller elects to retain any improvements and/or landscaping ("Improvements")
located on the Property, the Seller is responsible for their retrieval prior to the
construction of the project without any further notification from Purchaser. Seller
acknowledges that Purchaser has compensated Seller for the value of the
improvements located on the Property, and yet Purchaser is willing to permit Seller
to salvage said improvements as long as their retrieval is performed before
construction and without interruption or inconvenience to Purchaser's contractor. All
Improvements not removed from the Property prior to construction of the project
commences shall be deemed abandoned by Seller.
This provision shall survive Closing and is not deemed satisfied by conveyance of
title.
5. TITLE DEFECTS
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:
3
A. Within forty-five (45) days after the Effective Date hereof, Purchaser shall
obtain as evidence of title an ALTA Commitment for a Title Insurance Policy with
Florida Modifications 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.
B. 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 may terminate
the Agreement.
6. TERMINATION AND REMEDIES
A. If Seller shall have failed to perform any of the covenants and promises
contained herein, which are to be performed by Seller, 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 right to seek specific performance of this
Agreement.
B. 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 $500 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. Notwithstanding anything to the contrary herein
contained, the Purchaser shall have the right to terminate this agreement without
cause, in which event the liquidated damages provisions of this Section 1.6 shall
equally apply, and Seller's sole remedy shall be a claim for payment of $500 as
liquidated damages. The parties acknowledge and agree that Seller's actual
damages in the event of Purchaser's default or termination without cause 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.
4
C. 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.
7. SELLER'S AND PURCHASER'S REPRESENTATIONS AND WARRANTIES
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 its obligations under this Agreement and the
instruments executed in connection herewith, and to consummate the transaction
contemplated hereby. All necessary authorizations and approvals have been
obtained authorizing Seller and Purchaser to execute and consummate the
transaction contemplated hereby. Prior to Closing, and upon the request of
Purchaser or the Title Company, certified copies of such approvals shall be delivered
to Purchaser or the Title Company.
C. The warranties set forth in this paragraph are true on the Effective 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.
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, adversely affect Seller's 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
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.
5
H. Seller represents that Seller 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 Materials as defined
herein, or any other activity that would have toxic results, and no such Hazardous
Materials 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 Seller 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 Hazardous
Materials 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.
I. Seller has no knowledge that the Property, and/or that Seller's operations
concerning the Property, are in violation of any applicable Federal, State or local
statute, law or regulation, or of any notice from any governmental body has been
served upon Seller claiming any violation of any law, ordinance, code or regulation
or requiring or calling attention to the need for any work, repairs, construction,
alterations or installation on or in connection with the Property in order to comply
with any laws, ordinances, codes or regulation with which Seller has not complied.
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 acknowledges and agrees that Purchaser is entering into this Agreement
based upon Seller's representations stated herein 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.
L. Seller represents, warrants and agrees to indemnify, reimburse, defend and hold
Purchaser harmless from all costs (including attorney's fees) asserted against the
Purchaser by reason or arising out of the breach of any of Owner's representations
under Paragraph 7. This provision shall survive Closing and is not deemed satisfied
by conveyance of title.
6
8. ENTIRE AGREEMENT
A. This Agreement and the exhibits attached 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.
B. 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.
C. This Agreement is governed and construed in accordance with the laws of the
State of Florida.
D. 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.
E. The Effective Date of this Agreement will be the date of execution of this
Agreement by the last signing party.
9. 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 s. 286.23, Fla. Stat., under oath,
subject to the penalties prescribed for perjury, of the name and address of every person
having a beneficial interest in the Property before Property held in such capacity is
conveyed to Collier County. (If the corporation is registered with the Federal Securities
Exchange Commission or registered pursuant to Chapter 517, Florida Statutes, whose
stock is for sale to the general public, it is hereby exempt from the provisions of Chapter
286, Florida Statutes.)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written.
[SIGNATURE PAGE TO FOLLOW]
[19-ECM-02446/1506664/1] 7
AS TO PURCHASER:
DATED:
ATTEST: BOARD OF COUNTY COMMISSIONERS
CRYSTAL K. KINZEL, Clerk of the COLLIER COUNTY, FLORIDA
Circuit Court & Comptroller
BY: BY:
Deputy Clerk Burt Saunders
Chairman
AS TO SELLER:
DATED:
WITNESSES:
BY:
(Signature)
(Printed Name)
(Signature)
(Printed Name)
Approved as to form and legality:
Assistant County Attorney
[19-ECM-02446/1506664/1] 8
EXHIBIT "B2"
SAMPLE PURCHASE AGREEMENT
(Full Acquisitions - Fee Simple)
Paragraphs and phrases containing references to buildings, systems,
equipment, fixtures, appliances, moving expenses and extended possession will
be deleted if not applicable.
PROJECT: 60168 Vanderbilt Beach Road Ext.
PARCEL:
FOLIO NO.:
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT is made and entered into on this day of
, 20 , by and between , whose mailing address is
(hereinafter referred to as "Seller"), and COLLIER COUNTY, a
political subdivision of the State of Florida, whose mailing address is 3299 Tamiami Trail
East, do the Office of the County Attorney, Suite 800, Naples, Florida 34112 (hereinafter
referred to as "Purchaser").
WHEREAS, Seller owns certain improved property located at
, and more particularly described as:
together with all buildings, structures and improvements, fixtures, built-in appliances,
refrigerators, stoves and cook-tops, oven ranges, dishwasher, washer, dryer, ceiling fans,
floor coverings and window treatments (hereinafter collectively referred to as "the
Property"); and
WHEREAS, Purchaser requires the Property for stormwater retention purposes as
part of the Vanderbilt Beach Road Ext Project No. 60168 [DELETE IF NOT
APPLICABLE]; and
WHEREAS, Seller has agreed to sell and Purchaser has agreed to purchase the
Property subject to the terms and conditions that follow; and
WHEREAS, Seller desires to remain in possession of the residence located on the
Property and has requested the right to occupy the premises for a term of , to
which request Purchaser has agreed.
NOW THEREFORE, in consideration of these premises, the sum of Ten Dollars
($10.00), and other good and valuable consideration, the receipt and sufficiency of which
is hereby mutually acknowledged, it is agreed by and between the parties as follows:
1. AGREEMENT
In consideration of the purchase price and upon the terms and conditions hereinafter set
forth, Seller shall sell to Purchaser and Purchaser shall purchase from Seller the Property.
2. PURCHASE PRICE
The purchase price (the "Purchase Price") for the Property shall be
and 00/100 DOLLARS ($ )(U.S.
Currency) payable at time of closing. The Purchase Price is subject to the apportionment
and distribution of proceeds pursuant to Paragraph 3D of this Agreement and was agreed
upon by the parties hereto with full consideration having been given to the value of the
extended possession and moving expenses. The Purchase price shall be full
compensation for the Property conveyed, including all structures, improvements, fixtures,
landscaping, trees, and shrubs, located thereon, and shall be in full and final settlement
of all claims against the Purchaser, including but not limited to moving expenses,
attorneys' fees, expert witness fees and costs as provided for in Chapter 73, Florida
Statutes. None of this Purchase Price is attributed to any personal property.
3. CLOSING
A. TIME IS OF THE ESSENCE. Therefore, the Closing ("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 Purchaser or within thirty
(30) days of receipt by Purchaser of all fully executed closing documents and
documents necessary to convey marketable title free of any liens, encumbrances,
exceptions, or qualifications, whichever is later, unless extended by mutual written
agreement of the parties hereto. The Closing shall be held at Collier County Growth
Management Department, Transportation Engineering Division, 2885 Horseshoe
Drive South, Naples, Florida 34104. 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 debris 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 Florida Bar and in accordance with law.
Within ten (10) days of the Effective Date of this Agreement, Seller shall provide
Purchaser with a copy of any existing title insurance policy and survey. No less
than three (3) weeks before the Closing, the Seller shall cause to be delivered to the
Purchaser any documents necessary to convey marketable title and the following
documents and instruments duly executed and acknowledged, in recordable form:
[19-ECM-02446/1506665/1] 2
1. General 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.
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-9 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.
6. Certificate of Insurance.
7. All other documents required to consummate this transaction, as reasonably
determined by Purchaser's counsel and/or title company.
C. At Closing, the Purchaser, or its assignee, shall cause to be delivered to the
Seller a County Warrant in an amount equal to Net Cash to Seller on the Closing
Statement. No funds shall be disbursed to Seller until there is verification that there
has been no adverse change to the state of the title to the Property since the date
of the last title commitment, referenced in Section 8 "Requirements and Conditions
for Closing" below, and the title company is irrevocably committed to issue the
Owner's title policy to the Purchaser in accordance with the commitment.
D. Purchaser shall pay all fees to record any curative instruments required to clear
title, and all Warranty Deed recording fees.
E. Seller, at its sole cost and expense, shall pay at Closing all documentary stamp
taxes due upon the recording of the General Warranty Deed, in accordance with
Chapter 201, Florida Statutes, unless the Property is acquired under threat of
condemnation. The cost of a title insurance commitment shall be paid by Purchaser
along with the cost of an Owner's Title Insurance Policy, issued pursuant to the
Commitment provided for in Section 8, "Requirements and Conditions for Closing".
Furthermore, there shall be deducted from the proceeds of sale all past due and
prior year ad valorem and non-ad valorem taxes and assessments levied against
the Property which remain unpaid as of the date of Closing.
F. Real Property taxes shall be prorated based on the current year's tax and paid
by Seller. If Closing occurs at a date upon which the current year's millage is not
fixed, taxes will be prorated based upon the prior year's millage.
[19-ECM-02446/1506665/1] 3
G. A Security Deposit in the amount of ($ ) will be withheld from
Seller's closing proceeds to be held by Purchaser 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
, 20 (the "Term").
B. At Closing, the sum of ($ ) will be withheld by Purchaser as
security for any damages suffered by the Property during the Seller's occupancy
("Security Deposit"). The Security Deposit 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 or 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.
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 will 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-inhabitable 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 electricity,
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. Seller acknowledges that Purchaser will deduct all such unpaid bills from
the Security Deposit. Seller shall keep the property free from pests and insure that
[19-ECM-02446/1506665/1] 4
the air 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 as
defined herein below, 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 plumbing, 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 right 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
reasonable 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 the Term, as
may be extended, in as good a condition as of the Effective Date, reasonable wear
and tear and acts of God excepted.
J. Seller shall not alter 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 listed on Exhibit "B" be
replaced without the Purchaser's consent.
K. Seller shall be deemed in default of this Agreement if Seller fails to perform any
of the covenants, promises or obligations contained in this Section for a period of
ten (10) days after notice of such default. Upon Seller's default, Purchaser 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
[19-ECM-02446/1506665/1] 5
Purchaser's right 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, as may be extended, 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 Closing and
are not deemed satisfied by conveyance of title.
5. PROPERTY CONDITION DISCLOSURES [DELETE FOR UNIMPROVED
PROPERTIES]
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. Florida 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 risks 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 Paint/Paint Hazards. If construction 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. Interior
infestation by certain molds 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. Warranty. Except as to any facts or conditions disclosed to Purchaser as
required under Section S.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; structural walls; foundation; swimming pool, spa and pool/spa deck;
[19-ECM-02446/1506665/1] 6
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. Seller shall not be required to
repair or replace any Cosmetic Condition. "Cosmetic Condition" shall mean an
aesthetic imperfection which does not affect the Working Condition of the item,
including corrosion; tears; worn spots; discoloration of floor covering or wallpaper or
window treatments; missing or torn 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 structural
damage or leakage.
6. INSPECTIONS
A. Inspection Period. Purchaser shall have sixty (60) days from the Effective Date
(Inspection Period) to determine through appropriate investigation and inspection
that the Property is in compliance with all applicable State and Federal
environmental laws and free of any Hazardous Materials. Upon reasonable notice,
Seller will provide Purchaser, and its agents, with access to the Property for
purposes of surveying, soil borings, site inspection and analysis.
B. Election and Response. If Purchaser is not satisfied, for any reason, with the
results of this investigation, Purchaser may elect to terminate this Agreement,
without penalty, by giving written notice of its intent to terminate prior to expiration of
the Inspection Period. Purchaser may elect to suspend its Notice of Termination if
Seller notifies Purchaser in writing within ten (10) days thereafter that Seller agrees
to promptly carry out, at its sole expense, all further investigations and remediation
of the Property as necessary to make the Property acceptable to Purchaser
(hereinafter "Remedial Action") within a time period acceptable to Purchaser. As a
condition precedent for suspension of the Notice of Termination, the parties shall
agree to the specific term of such suspension and what will render the Property
acceptable to Purchaser.
C. "Hazardous Materials" means any substance: (1) the presence of which
requires investigation, remediation, or is, or becomes regulated under any federal.
state, or local law, regulation, order or policy; or (2) which is or becomes defined as
a hazardous substance, pollutant or contaminant under federal, state or local law or
regulation; or (3) which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic or otherwise hazardous, or threatens the
health or safety of persons on or about the Property, and is being regulated by any
governmental authority in the state of Florida.
[19-ECM-02446/1506665/1] 7
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, then either Seller or Purchaser may elect to pay such excess, failing
which, either party may terminate this Agreement upon written notice.
G. Walk-Through Inspection. Purchaser (or a designated representative) may
conduct a walk-through inspection of the Property prior to Closing and prior to
possession, to confirm: (1) completion of any Remedial Action agreed to by Seller
in Section 6.B "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 4 and 7. Upon reasonable notice, Seller shall
provide access and utilities service to the Property to facilitate the walk-through
inspection.
H. inspections during Occupancy. 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 lawn, shrubbery, and
landscaping) in the condition existing on the Effective Date until Closing or date of
Purchaser's possession, whichever is later, except for ordinary wear and tear and any
Remedial Action agreed to by Seller under Section 6.B above. Any future loss and/or
damage to the Property between the Effective Date and the Closing or date of Purchaser's
possession, whichever is later, shall be at Seller's sole risk and expense.
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 forty-five (45) days after the Effective Date hereof, Purchaser shall
obtain as evidence of title an ALTA Commitment for an Owner's Title Insurance
Policy with Florida Modifications 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.
B. 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
[19-ECM-02446/1506665/1] 8
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 may terminate
the Agreement.
C. Seller agrees to furnish any existing surveys of the Property in Seller's
possession to Purchaser within ten (10) 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. If the survey
provided by Seller or obtained by Purchaser, as certified by a licensed 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, within sixty (60) days
from the Effective Date of this Agreement, 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. Should
Seller elect not to or be unable to remove the encroachment, projection, or provide
legal access to the property within sixty (60) days, Purchaser 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, by providing written
notice to Seller within seven (7) days after expiration of said sixty (60) day period.
9. TERMINATION AND REMEDIES
A. If Seller shall have failed to perform any of the covenants and promises
contained herein, which are to be performed by Seller, 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 right to seek specific performance of this
Agreement.
B. 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 $500 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 Section 10 hereof, "Real
Estate Brokers".
C. The parties acknowledge that the remedies described herein and in the other
provisions of this Agreement provide mutually satisfactory and sufficient remedies
[19-ECM-02446/1506665/1] 9
to each of the parties and take into account the peculiar risks and expenses of each
of the parties.
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 its obligations under this Agreement and the
instruments executed in connection herewith, and to consummate the transaction
contemplated hereby. All necessary authorizations and approvals have been
obtained authorizing Seller and Purchaser to execute and consummate the
transaction contemplated hereby. Prior to Closing, and upon the request of
Purchaser or the Title Company, certified copies of such approvals shall be delivered
to Purchaser or the Title Company.
C. The warranties set forth in this Section are true on the Effective 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.
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, adversely affect Seller's 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
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.
[19-ECM-02446/1506665/1] 10
H. Seller represents that Seller 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 Materials as defined
herein, or any other activity that would have toxic results, and no such Hazardous
Materials 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 Seller 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 Hazardous
Materials 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.
I. Seller has no knowledge that the Property, and/or that Seller's operations
concerning the Property, are in violation of any applicable Federal, State or local
statute, law or regulation, or of any notice from any governmental body has been
served upon Seller claiming any violation of any law, ordinance, code or regulation
or requiring or calling attention to the need for any work, repairs, construction,
alterations or installation on or in connection with the Property in order to comply
with any laws, ordinances, codes or regulation with which Seller has not complied.
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 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,
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.
L. Seller acknowledges and agrees that Purchaser is entering into this Agreement
based upon Seller's representations stated herein 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
[19-ECM-02446/1506665/1] 11
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.
M. Seller represents, warrants and agrees to indemnify, reimburse, defend and
hold Purchaser harmless from all costs (including attorney's fees) asserted against,
imposed on or incurred by Purchaser, directly or indirectly, pursuant to or in
connection with the application of any federal, state, local or common law relating to
pollution or protection of the environment which shall be in accordance with, but not
limited to, the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, 42 U.S.C. Section 9601, et seq., ("CERCLA" or "Superfund"),
which was amended and upgraded by the Superfund Amendment and
Reauthorization Act of 1986 ("SARA"), including any amendments or successor in
function to these acts. This provision and the rights of Purchaser, hereunder, shall
survive Closing and are not deemed satisfied by conveyance of title.
11. NOTICES
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 registered or certified mail, return receipt requested, postage prepaid or
personal delivery addressed as follows:
If to Purchaser: Transportation Engineering Division
Attn: Robert Bosch
Right-of-Way Acquisition Manager
2885 South Horseshoe Drive
Naples, Florida 34104
Telephone 239-252-5843
Fax 239-252-5885
With a copy to: Office of the County Attorney
Attn: Jeff Klatzkow
County Attorney
3299 Tamiami Trail East
Suite 800
Naples, Florida 34112
Telephone 239-252-8400
Fax 239-252-0225
If to Seller:
Telephone:
Fax
[19-ECM-02446/1506665/1] 12
With a copy to:
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 purpose 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 compliance 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 physical receipt by hand delivery.
12. REAL ESTATE BROKERS
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 limit
the scope or intent of this Agreement or any provisions hereof.
E. 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.
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.
[19-ECM-02446/1506665/1) 13
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 written public disclosure, according to s. 286.23, Fla. Stat., under
oath, subject to the penalties prescribed for perjury, of the name and address of
every person having a beneficial interest in the Property before Property held in such
capacity is conveyed to Collier County. (If the corporation is registered with the
Federal Securities Exchange Commission or registered pursuant to Chapter 517,
Florida Statutes, whose stock is for sale to the general public, it is hereby exempt
from the provisions of Chapter 286, Florida Statutes.)
I. This Agreement is governed and construed in accordance with 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 attached 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, Florida 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 shall be construed in accordance with
the parties' intent and shall be given their plain meaning without reference or
application of s. 83.43, Fla. Stat., or any other portion of Chapter 83.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written.
[SIGNATURE PAGE TO FOLLOW]
[19-ECM-02446/1506665/1] 14
AS TO PURCHASER:
DATED:
ATTEST: BOARD OF COUNTY COMMISSIONERS
CRYSTAL K. KINZEL, Clerk of the COLLIER COUNTY, FLORIDA
Circuit Court & Comptroller
BY: BY:
Deputy Clerk , Chairman
AS TO SELLER:
DATED:
WITNESSES:
(Signature) Seller
(Printed Name)
(Signature)
(Printed Name)
Approved as to form and legality:
Assistant County Attorney
[19-ECM-02446/1506665/1] 15
EXHIBIT "B3"
SAMPLE PURCHASE AGREEMENT
(Perpetual Easement)
PROJECT: 60168 Vanderbilt Beach Road Ext.
PARCEL:
FOLIO NO:
EASEMENT AGREEMENT
THIS EASEMENT AGREEMENT (hereinafter referred to as the "Agreement") is made
and entered into on this day of , 20 , by and between
, whose mailing address is (hereinafter referred to
as "Seller"), and COLLIER COUNTY, a political subdivision of the State of Florida, whose
mailing address is 3299 Tamiami Trail East, c/o the Office of the County Attorney, Suite 800,
Naples, Florida 34112 (hereinafter referred to as "Purchaser").
WHEREAS, Purchaser requires [INSERT PURPOSE OF EASEMENT] (hereinafter
referred to as the "Easement") over, under, upon and across the lands described in Exhibit
"A" (hereinafter referred to as the "Property"), which is attached hereto and made a part of
this Agreement; and
WHEREAS, Seller desires to convey the Easement to County for the stated purposes,
on the terms and conditions set forth herein; and
WHEREAS, Purchaser has agreed to compensate Seller 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. RECITALS - 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. PURCHASE PRICE - Seller shall convey the Easement to Purchaser for the sum of:
$0.00
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 Seller, payable by County Warrant or funds wire transfer, shall be full
compensation for the Easement conveyed, including (if applicable) all landscaping,
Page 2
trees, shrubs, improvements, and fixtures located thereon, and shall be in full and final
settlement of any damages resulting to Seller's remaining lands, costs to cure,
including, but not limited to, the cost to relocate the existing irrigation system and other
improvements (if any), and the cost to cut and cap irrigation lines (if any) extending
into the Easement, and to remove all sprinkler valves and related electrical wiring (if
any), and all other damages in connection with conveyance of said Easement to
Purchaser, including all attorneys' fees, expert witness fees and costs as provided for
in Chapter 73, Florida Statutes.
3. CLOSING DOCUMENTS AND CLEAR TITLE - Seller shall obtain from the holders of
any liens, exceptions and/or qualifications encumbering the Property the execution of
such instruments which will remove, release or subordinate such encumbrances from
the Property upon their recording in the public records of Collier County, Florida. Prior
to Closing and as soon after the execution of this Agreement as is possible, Seller shall
provide Purchaser with a copy of any existing title insurance policy and the following
documents and instruments properly executed, witnessed, and notarized where
required, in a form acceptable to County (hereinafter referred to as "Closing
Documents"):
(a) [DESCRIPTIVE TITLE OF EASEMENT] Easement;
(b) Instruments required to remove, release or subordinate any and all liens,
exceptions and/or qualifications affecting Purchaser's enjoyment of the
Easement;
(c) Closing Statement;
(d) Grantor's Non-Foreign, Taxpayer Identification and "Gap" Affidavit;
(e) W-9 Form; and
(f) 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 Purchaser,
Purchaser's counsel and/or title company.
4. TIME IS OF THE ESSENCE - Both Seller and Purchaser agree that time is of the
essence. Therefore, Closing shall occur within ninety (90) days of the date of execution
of this Agreement or within thirty (30) days of Seller's receipt of all Closing Documents,
whichever is the later. This agreement shall remain in full force and effect until Closing
shall occur, until and unless it is terminated for other cause. At Closing, payment shall
be made to Seller in that amount shown on the Closing Statement as "Net Cash to the
Seller."
5. IRRIGATION SYSTEM AND MISCELLANEOUS IMPROVEMENTS - Seller agrees to
relocate any existing irrigation system located on the Property including irrigation lines,
electrical wiring and sprinkler valves, etc. (if any), prior to the construction of the project
without any further notification from Purchaser. Purchaser assumes full responsibility
Page 3
for the relocation of the irrigation system (if any) on the remainder property and its
performance after relocation. Seller holds Purchaser 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 Seller elects to retain improvements and/or landscaping ("Improvements") located on
the Property (if any), Seller is responsible for their retrieval prior to the construction of
the project without any further notification from Purchaser. Seller acknowledges that
Purchaser has compensated Seller for the value of all improvements located within the
Easement area, and yet Purchaser is willing to permit Seller to salvage said
improvements as long as their retrieval is performed before construction and without
interruption or inconvenience to the Purchaser's contractor. All improvements not
removed from the Property prior to commencement of construction of the project shall
be deemed abandoned by Seller.
This provision shall survive Closing and is not deemed satisfied by conveyance of title.
6. MISCELLANEOUS REQUIREMENTS - 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.
7. REPRESENTATIONS AND WARRANTIES - Seller agrees, represents and warrants
the following:
(a) Seller 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 Seller hereunder and to consummate the
transaction contemplated hereby.
(b) Purchaser's acceptance of the Easement shall not be deemed to be full
performance and discharge of every agreement and obligation on the part of
Seller to be performed pursuant to the provisions of this Agreement.
(c) No party or person other than Purchaser has any right or option to acquire the
Property or any portion thereof.
(d) 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, 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 Property.
Page 4
(f) Seller 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 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.
(g) Purchaser is entering into this Agreement based upon Seller's representations
stated in this Agreement and on the understanding that Seller will not cause
the 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 physical condition of the Property or
its intended use by Purchaser.
(h) The Property, 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 except as specifically disclosed to the Purchaser; that the Seller
has no knowledge of any spill or environmental law violation on the property
contiguous to or in the vicinity of the Easement Property to be sold to the
Purchaser, that the Seller has not received notice and otherwise has no
knowledge of: a) any spill on the Property; b) any existing or threatened
environmental lien against the Property ; or c) any lawsuit, proceeding or
investigation regarding the generation, storage, treatment, spill or transfer of
hazardous substances on the Property. This provision shall survive Closing
and is not deemed satisfied by conveyance of title.
8. INDEMNIFICATION - Seller 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
Seller's representations under paragraph 7(h). This provision shall survive Closing and
is not deemed satisfied by conveyance of title.
9. CURATIVE INSTRUMENTS, PROCESSING FEES, TAXES - Purchaser shall pay all
fees to record any curative instruments required to clear title, and all Easement
instrument recording fees. In addition, Purchaser may elect to pay reasonable
processing fees required by lien-holders and/or easement-holders in connection with
the execution and delivery of 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 Paragraph 2 which
may be required by any mortgagee, lien-holder or other encumbrance-holder for the
Page 5
protection of its security interest, or as consideration due to any diminution in the value
of its property right, shall be the responsibility of the Seller, and shall be deducted on
the Closing Statement from the compensation payable to the Seller per Paragraph 2.
Purchaser shall have sole discretion as to what constitutes "reasonable processing
fees." In accordance with the provisions of Section 201.01, Florida Statutes, concerning
payment of documentary stamp taxes by Purchaser, Seller shall further pay all
documentary stamp taxes required on the instrument(s) of transfer, unless the
Easement is acquired under threat of condemnation.
10. PRIOR YEAR AD VALOREM TAXES - There shall be deducted from the proceeds of
sale all prior year ad valorem taxes and assessments levied against the parent tract
property which remain unpaid as of the date of Closing.
11. EFFECTIVE DATE - 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. PUBLIC DISCLOSURE - 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, Owner shall make a written public disclosure, according to Chapter 286,
Florida Statutes, under oath, subject to the penalties prescribed for perjury, of the name
and address of every person having a beneficial interest in the Property 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. ENTIRE AGREEMENT - Conveyance of the Easement, or any interest in the Property,
by Seller is contingent upon no other provisions, conditions, or premises other than
those so stated herein; and this written Agreement, including all exhibits attached
hereto, shall constitute the entire Agreement and understanding of the parties, and
there are no other prior or contemporaneous written or oral agreements, undertakings,
promises, warranties, or covenants not contained herein. No modification, amendment
or cancellation of this Agreement shall be of any force or effect unless made in writing
and executed and dated by both Seller and Purchaser.
14. BREACH AND TERMINATION - If either party fails to perform any of the covenants,
promises or obligations contained in this Agreement, such party will have breached this
Agreement and the other party may provide written notice of said breach to the party
in breach, whereupon the party in breach shall have 15 days from the date of said
notice to remedy said breach. If the party in breach shall have failed to remedy said
breach, the other party may, at its option, terminate this Agreement by giving written
notice of termination to the party in breach and shall have the right to seek and enforce
all rights and remedies available at law or in equity, including the right to seek specific
performance of this Agreement.
Page 6
15. SEVERABILITY - 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.
16. VENUE - 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: BOARD OF COUNTY COMMISSIONERS
CRYSTAL K. KINZEL, Clerk of the COLLIER COUNTY, FLORIDA
Circuit Court & Comptroller
BY: BY:
Deputy Clerk , Chairman
AS TO SELLER:
DATED:
Witness (Signature) Seller
Name (Print or Type)
Witness (Signature)
Name (Print or Type)
Approved as to form and legality:
Assistant County Attorney
EXHIBIT "B4"
SAMPLE PURCHASE AGREEMENT
(Temporary Easement)
PROJECT: 60168 Vanderbilt Beach Road Ext.
PARCEL:
FOLIO NO:
TEMPORARY EASEMENT AGREEMENT
THIS TEMPORARY EASEMENT AGREEMENT (hereinafter referred to as the
"Agreement") is made and entered into on this day of , 20
by and between , whose mailing address is
(hereinafter referred to as "Seller") and COLLIER COUNTY,
a political subdivision of the State of Florida, its successors and assigns, whose mailing
address is 3299 Tamiami Trail East, do the Office of the County Attorney, Suite 800,
Naples, Florida 34112 (hereinafter referred to as "Purchaser").
WHEREAS, Purchaser requires a Temporary Easement (hereinafter referred to as
"Easement") over, under, upon and across the lands described in Exhibit"A" (hereinafter
referred to as the Property), which is attached hereto and made a part of this Agreement,
for the purpose of[INSERT EASEMENT PURPOSE]; subject to the restrictions contained
herein; and
WHEREAS, Seller desires to convey the Easement to the Purchaser for the stated
purposes, on the terms and conditions set forth herein; and
WHEREAS, the Purchaser has agreed to compensate the Seller 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
are hereby mutually acknowledged, it is agreed by and between the parties as follows:
1. RECITALS - 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. PURCHASE PRICE - Seller shall convey the Easement to Purchaser for the sum of:
subject to the apportionment and distribution of proceeds pursuant to Paragraph 8
of this Agreement (said transaction hereinafter referred to as the "Closing"). Said
payment to Seller, payable by County Warrant or funds wire transfer, shall be full
compensation for the Easement conveyed, including (if applicable) all landscaping,
trees, shrubs, improvements, and fixtures located thereon, and shall be in full and
final settlement of any damages resulting to Seller's remaining lands, costs to cure,
including, but not limited to (if applicable), the cost to relocate the existing irrigation
system and other improvements, and the cost to cut and cap irrigation lines
extending into the Property, and to remove all sprinkler valves and related electrical
wiring, and all other damages in connection with conveyance of said Easement to
Purchaser, including all attorneys' fees, expert witness fees and costs as provided
for in Chapter 73, Florida Statutes.
3. CLOSING DOCUMENTS AND CLEAR TITLE - Prior to Closing and as soon after
the execution of this Agreement as is possible, Seller shall provide Purchaser with
a copy of any existing title insurance policy and the following documents and
instruments properly executed, witnessed, and notarized where required, in a form
acceptable to Purchaser (hereinafter referred to as "Closing Documents"):
(a) Temporary 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 Purchaser 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. TIME IS OF THE ESSENCE - Both Seller and Purchaser agree that time is of the
essence. Therefore, Closing shall occur within ninety (90) days of the date of
execution of this Agreement or within thirty (30) days of Purchaser's receipt of all
Closing Documents, whichever is the later. This agreement shall remain in full force
and effect until Closing shall occur, until and unless it is terminated for other cause.
At Closing, payment shall be made to Seller in that amount shown on the Closing
Statement as "Net Cash to the Seller.
5. MISCELLANEOUS REQUIREMENTS - 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.
6. REPRESENTATIONS AND WARRANTIES-Seller agrees, represents and warrants
the following:
(a) Seller has full right, power and authority to own and operate the Property 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 Seller hereunder and to consummate the transaction
contemplated hereby.
(b) Purchaser's acceptance of the Easement shall not be deemed to be full
performance and discharge of every agreement and obligation on the part
of Seller to be performed pursuant to the provisions of this Agreement.
(c) No party or person other than Purchaser has any right or option to acquire
the Property or any portion thereof.
(d) 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, 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 Property.
(f) Seller 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 Property or which adversely affect Purchaser'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.
(g) Purchaser is entering into this Agreement based upon Seller's
representations stated in this Agreement and on the understanding that
Seller will not cause the 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 physical condition of the
Property or its intended use by Purchaser.
(h) The Property, and all uses of the 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 except as specifically disclosed to the Purchaser; the Seller
has no knowledge of any spill or environmental law violation on the property
contiguous to or in the vicinity of the Easement to be conveyed to the
Purchaser; the Seller has not received notice and otherwise has no
knowledge of: a) any spill on the Property; b) any existing or threatened
environmental lien against the Property; or c) any lawsuit, proceeding or
investigation regarding the generation, storage, treatment, spill or transfer
of hazardous substances on the Property . This provision shall survive
Closing and is not deemed satisfied by conveyance of title.
7. INDEMNIFICATION - Seller 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 Seller's representations under paragraph 6(h). This provision shall
survive Closing and is not deemed satisfied by conveyance of title.
8. CURATIVE INSTRUMENTS, TAXES - Purchaser shall pay all fees to record any
curative instruments required to clear title, and all Easement recording fees. In
accordance with the provisions of Section 201.01, Florida Statutes, concerning
payment of documentary stamp taxes by Purchaser, Seller shall pay all
documentary stamp taxes required on the instrument(s) of transfer, unless the
Easement is acquired under threat of condemnation.
9. TERM OF EASEMENT - The term of the Easement shall commence upon the
issuance of Purchaser's official Notice to Proceed to its roadway contractor for the
construction of the Vanderbilt Beach Road Extension Project No. 60168 and shall
automatically terminate three (3) years therefrom.
10. EFFECTIVE DATE - 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/or
assignees, whenever the context so requires or admits.
11. PUBLIC DISCLOSURE - 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, subject to the penalties prescribed for
perjury, of the name and address of every person having a beneficial interest in the
Property held in such capacity before the Easement is conveyed to Purchaser, its
successors and assigns. (If the corporation is registered with the Federal Securities
Exchange Commission or registered pursuant to Chapter 517, Florida Statutes,
whose stock is for sale to the general public, it is hereby exempt from the provisions
of Chapter 286, Florida Statutes.)
12. ENTIRE AGREEMENT - Conveyance of the Easement, or any interest in the
Property, by the Seller is contingent upon no other provisions, conditions, or
premises other than those so stated herein; and this written Agreement, including all
exhibits attached hereto, shall constitute the entire agreement and understanding of
the parties, and there are no other prior or contemporaneous written or oral
agreements, undertakings, promises, warranties, or covenants not contained herein.
No modification, amendment or cancellation of this Agreement shall be of any force
or effect unless made in writing and executed and dated by both Seller and
Purchaser.
13. SEVERABILITY - 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.
14. VENUE - 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: BOARD OF COUNTY COMMISSIONERS
DWIGHT E. BROCK, Clerk COLLIER COUNTY, FLORIDA
BY:
Deputy Clerk , CHAIRMAN
AS TO SELLER:
DATED:
Witness (Signature)
Name (Print or Type)
Witness (Signature)
Name (Print or Type)
Approved as to form and legality:
Assistant County Attorney
EXHIBIT "C"
SAMPLE SUBORDINATION OF UTILITY INTERESTS AND AGREEMENT
FOR REIMBURSEMENT FOR ADDITIONAL FACILITY RELOCATIONS
THIS AGREEMENT,entered into this day of ,20_,by and between COLLIER COUNTY,
a political subdivision of the State of Florida (hereinafter referred to as "County"), and [NAME OF UTILITY
PROVIDER] (hereinafter referred to as "Utility").
WITNESETH:
WHEREAS, the Utility presently has an interest in certain lands that have been determined necessary for
[SPECIFY PURPOSE]; and
WHEREAS, the proposed use of these lands for [SPECIFY PURPOSE] will require subordination of the
interest claimed in such lands by Utility to the County; and
WHEREAS,the County is willing to pay for the initial relocation of the Utility's facilities within the public
right-of-way to prevent conflict between the County's use and the Utility's use,and for the benefit of each,and
WHEREAS the County, in recognition of the Utility's interest in the certain lands, is willing to pay for any
future relocation of the Utility's facilities from or within the entire width of the public right-of-way shown on Exhibit
"A", attached hereto and made a part hereof.
NOW, THEREFORE, in consideration of the mutual covenants and promises of the parties hereto, Utility
and the County agree as follows:
UTILITY subordinates any and all of its interest in its easement lands described on "EXHIBIT A" attached
hereto and made a part hereof, to the interest of the County, or its successors, for the purpose of constructing,
improving,maintaining and operating a road over,through, upon,and/or across such lands,based on the following:
NATURE OF DATE FROM OR AGAINST IN FAVOR OF RECORDED
ENCUMBRANCE BOOK,PAGE
The County and the Utility further agree that:
1. "Public right-of-way", as used herein, shall mean that area which is described in Exhibit "A" and which
includes the Utility's easements identified above and additional lands for public right-of-way, as described
in Exhibit"A",attached hereto and made a part hereof.
2. The Utility shall have the right to construct, operate, maintain, improve, add to, upgrade, remove, and
relocate facilities on,within,and upon the public right-of-way described in Exhibit"A", in accordance with
the County's current minimum standards for such facilities as of the date of this agreement. Any new
construction or relocation of facilities within the public right-of-way will be subject to prior approval by the
County.
3. The County shall pay for the relocation of existing facilities. In addition,the Utility retains the right to be
reimbursed, either now or in the future, for additional relocation or adjustment of its facilities located
presently or to be located on the public right-of-way described in Exhibit "A", if such relocation or
adjustment is caused by present or future uses of the right-of-way by the County or its assigns, including,
but not limited to,the cost of acquiring replacement easements.
4. The Utility shall have the right to enter upon the lands described in Exhibit"A" for the purposes outlined in
Paragraph 2 above, including the right to trim such trees, brush, and growth which might endanger or
interfere with such facilities. The County shall provide and insure access to said lands by the Utility.
5. The Utility agrees to repair any damage to County facilities and to indemnify the County against any loss or
damage resulting from the Utility exercising its rights to construct, operate, maintain, improve, add to,
upgrade or remove its facilities on the said public right-of-way.
6. This Agreement shall not be assigned by the County except to the State of Florida.
IN WITNESS WHEREOF, the parties hereto have executed this Subordination of Utility Interests and
Agreement for Reimbursement for Additional Facility Relocations on the day and year first above written.
ATTEST: BOARD OF COUNTY COMMISSIONERS
DWIGHT E. BROCK, Clerk COLLIER COUNTY, FLORIDA
BY:
, Deputy Clerk ,CHAIRMAN
Signed, sealed and delivered [NAME OF UTILITY PROVIDER]
in the presence of:
By: By:
Title:
Print Name: Print Name:
By:
Print Name: (Corporate Seal)
STATE OF
COUNTY OF
I hereby certify that on this day,before me,an officer duly authorized to take acknowledgements,personally
appeared ,to me known and personally known to me to be the person described in, and did
not take an oath and who executed the foregoing instrument as the of
and acknowledged before me that he executed the same as such official in the name
and on behalf of said Corporation.
WITNESS my hand and official seal in the County and State aforesaid this_day of ,20_.
(affix notarial seal)
(Signature of Notary Public)
2
Utility Subordination Agreement
(Print Name of Notary Public)
Serial/Commission# (if any):
My Commission Expires:
Approved as to form and legality:
Assistant County Attorney
3
Utility Subordination Agreement