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FPL 2007 ROW Consent Agreement w 3969855 OR: 4180 PG: 0489. RECORDED in OFFICIAL RECORDS of COLLIER COUNTY, ~ L' ~ 02/07/2007 at 09:41AK D~IGHT E. BROCK, CLERK REC FEE 35.50 COPIES 4.00 This Instrument Prepared By: Mark L. Byers Florida Power & Light Company P.O. BOX 11119 Sarasota, FL 34230-1119 Retn: CLERK TO THB BOARD INTEROFFICE 4TH FLOOR EXT 8406 MEMORANDUM OF RIGHT-OF-WAY CONSENT AGREEMENT rr1I THIS MEMORANDUM OF RIGHT-OF-WAY CONSENT AGREEMENT dated this !:J' ~ day ofri~ 200 }-, by and between COLLIER COUNTY BOARD OF COUNTY COMMISSI~AS GOVERNING BODY OF COLLIER COUNTY, FLORIDA, (hereinafter referred to as "Licensee"), and FLORIDA POWER & LIGHT COMPANY, a Florida corporation (hereinafter referred to as "Company"). WITNESSETH: WHEREAS, on the.0day ofd~ 200 ::;-, Company and Licensee entered into a written Right-of-Way Consent Agreement, hereinafter referred to as the "Agreement" related to certain property situated in the County of Collier, State of Florida as more particularly set forth in said Agreement and described in Exhibit "A" attached hereto and made a part hereof and hereinafter referred to as the "Lands", and WHEREAS, the parties are desirous of placing their interest therein as a matter of public record. NOW THEREFORE, in consideration of the mutual covenants herein contained and the parties intending to be legally bound thereby, the parties hereto agree as follows: 1. The property described in Exhibit "A" is subject to a right-of-way in favor of Company recorded in O.R. Book 194, Page 386 of the Public Records of Collier County, Florida. 2. The Agreement provides, among other things, Licensee's right to use the Lands for temporary construction access related to the Lely Area Stormwater Improvement Project, subject to certain conditions and restrictions. 3. The Agreement is assignable to purchasers of all or a portion of the Lands provided that the purchasers assume the obligations under the Agreement and specifically acknowledge and agree that the use of the property and improvements to be placed on the property are strictly limited to those depicted on a certain plan of improvement and are otherwise subject to the terms of the Agreement. OR: 4180 PG: 0490 IN WITNESS WHEREOF, the parties have executed this Memorandum of Agreement on the date hereinabove written. ~ ~ Company: FLORIDA POWER & LIGHT COMPANY, ::IOrida;:;z; ./ 4 --' Mark L. Byers Area Real Estate Manager Witnesses for Company: Name: II'LAA (c. ~'--I&-C ~~~~9tDp- Dated: 1 /J.~/J.;)t)'1 ~ , ATTEST:~.,\. C~:Gir;"", ''''.~/If: :'. DWIG~r"~:'BR~.;Clerk Licensee: '" '.-' , . ' '~~f: '~i ~LLJ.~~CctJ'ri k Atfii~tYlfl€bkCh41run \ Ii 1 Q(".turt 00 1 ~ JAMES COLETTA, CHAIRMAN Approved as to form and legal sufficiency: k Dz ab-r~ Ellen T. Chadwell Assistant County Attorney Dated: ,L/sJo I . OR: 4180 PG: 0491 State of Florida ) )ss: County of 5' tA ~t& >~ f. ) On this )... L. "il day of )GII~P"" , 200~, before me, the undersigned Notary Public, personally appeared Mark L. Byers, Area Real Estate Manager of Florida Power & Light Company, a Florida corporation, personally known to me to be the person who subscribed to the foregoing instrument and acknowledged that he/she executed the same on behalf of said corporation and that he/she was duly authorized to do so. In Witness Whereof, I hereunto set my hand and official seal. (seal) ~~ - NOTARY PUBLIC, STA'TEOF FLORIDA NOTARY POODe-STATE OF FLORIDA _Mark Zwieg Commission #DD558146 Expires: MAY 30, 2010 BONDED THRU ATIA\'TIC BONDING co.. INC. Print Name: (l1 /f",( (c. 2- tv ((;" ( Commission No.: ./JIJ j'f ;/Y( My Commission Expires: r!J 6?-O [:XHIBIT A ,.~ . \ - .- - r-t..,gIe_ of I ~. .. A- :a-_ *** OR: 4180 PG: 0492 ~*! EXHIBIT "A" The West 110 feet of the East J;; of Section 18, Township 50 South, Range 26 East, Collier County, Florida, less the South Thirty (30) feet thereof. RIGHT-OF-WAY CONSENT AGREEMENT FLORIDA POWER & LIGHT COMPANY, a Florida corporation, whose mailing address is P.O. Box 14000, Juno Beach, Florida 33408-0420, Attn: Corporate Real Estate Department, ("Company"), hereby consents to the Collier County Board of County Commissioners as Governing Body of Collier County, whose mailing address is 3301 Tamiami Trail East, Naples, FL, 34112 ("Licensee") using an area within Company's right-of-way granted by that certain agreement recorded in Official Records Book 194, Page 386, of Public Records of Collier County, Florida. The said area within Company's right-of-way is hereinafter referred to as the "Lands". The use of the Lands by Licensee, shall be solely for the purpose of temporary construction access as shown on the plans and specifications submitted by Licensee, attached hereto as Exhibit" A". In consideration for Company's consent and for the other mutual covenants set forth below, and for Ten Dollars and No Cents ($10.00) and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto agree as follows: 1. Licensee agrees to obtain all necessary rights from the owners of the Lands in the event Licensee does not own said Lands; to obtain any and all applicable federal, state, and local permits required in connection with Licensee's use of the Lands; and at all times, to comply with all requirements of all federal, state, and local laws, ordinances, rules and regulations applicable or pertaining to the use of the Lands by Licensee pursuant to this agreement. 2. Licensee understands and agrees that the use of the Lands pursuant to this Agreement is subordinate to the rights and interest of Company in and to the Lands and agrees to notify its employees, agents, and contractors accordingly. Company specifically reserves the right to maintain its facilities located on the Lands; to make improvements; add additional facilities; maintain, construct or alter roads; maintain any facilities, devices, or improvements on the Lands which aid in or are necessary to Company's business or operations; and the right to enter upon the Lands at all times for such purposes. Licensee understands that in the exercise of such rights and interest, Company from time-to-time may require Licensee, to relocate, alter, or remove its facilities and equipment, including parking spaces and areas, and other improvements made by Licensee pursuant to this Agreement which interfere with or prevent Company, in its opinion, from properly and safely constructing, improving, and maintaining its facilities. Licensee agrees to relocate, alter, or remove said facilities, equipment, parking spaces and areas, and other improvements within thirty (30) days of receiving notice from Company to do so. Such relocation, alteration, or removal will be made at the sole cost and expense of Licensee and at no cost and expense to Company; provided however, should Licensee, for any reason, fail to make such relocation, alteration, or removal, Company retains the right to enter upon the Lands and make said relocation, alteration, or removal of Licensee's facilities, equipment, parking spaces and areas, and other improvements and Licensee hereby agrees to reimburse Company for all of its costs and expense incurred in connection therewith upon demand. 3. Licensee agrees that it will not use the Lands in any manner which, in the opinion of Company, may tend to interfere with Company's use of the Lands or may tend to cause a hazardous condition to exist. Licensee agrees that no hazardous substance, as the term is defined in Section 101 (14) of the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA") (42 USC Section 9601 [14]), petroleum products, liquids or flammables shall be placed on, under, transported across, or stored on the Lands, which restricts, impairs, interferes with, or hinders the use of the Lands by Company or the exercise by Company of any of its rights thereto. Licensee agrees further that in the event it should create a h<t~ardous condition, then upon notification by Company, Licensee shall, within seventy-two (72) hours, at its sole cost and expense, correct such condition or situation; provided however that the Company retains the right to enter upon the Lands and correct any such condition or situation at any time and, by its execution hereof, Licensee hereby agrees to indemnify and hold harmless Company from all loss, damage or injury resulting from Licensee's failure to comply with the provisions of this Agreement. 4. Licensee hereby agrees and covenants to prohibit its agents, employees, and contractors from using any tools, equipment, or machinery on the Lands capable of extending greater than fourteen (14) feet above existing grade and further agrees that no dynamite or other Form 3740 Rev. 10/9/95 Page 1 of 5 explosives shall be used within the Lands and that no alteration of the existing terrain, including the use of the Lands by Licensee as provided herein, shall be made which will result in preventing Company access to its facilities located within said Lands. Unless otherwise provided herein, Licensee agrees to maintain a forty (40) foot wide setback, twenty (20) feet on each side, from Company's facilities. 5. Trees, shrubs, and other foliage planted or to be planted upon the Lands by Licensee are not to exceed a height of fourteen (14) feet above existing grade. 6. Outdoor lighting installed or to be installed upon the Lands by Licensee are not to exceed a height of fourteen (14) feet above existing grade and all poles or standards supporting light fixtures are to be of a non-metallic material. 7. Sprinkler systems installed or to be installed by Licensee upon the Lands are to be constructed of a non-metallic material and sprinkler heads are to be set so the spray height does not exceed fourteen (14) feet above existing grade and does not make contact with any Company's facilities. Aboveground systems shall not be installed within or across Company patrol or finger roads and underground systems crossing said patrol and finger roads are to be buried at a minimum depth of one (1) foot below existing road grade. 8. Licensee agrees to warn its employees, agents, contractors and invitees of the fact that the electrical facilities and appurtenances installed or to be installed by Company within the Lands are of high voltage electricity and agrees to use all safety and precautionary measures when working under or near Company's facilities. 9. Licensee agrees, at all times, to maintain and keep the Lands clean and free of debris. Except as provided herein, Licensee further understands and agrees that certain uses of the Lands are specifically prohibited; such uses include but are not limited to recreational purposes, hunting and camping, and Licensee agrees to notify its employees, agents, contractors, and invitees accordingly. 10. The use of the Lands by Licensee shall be at the sole risk and expense of Licensee, and Company is specifically relieved of any responsibility for damage or loss to Licensee or other persons resulting from Company's use of the Lands for its purposes. 11. Notwithstanding any provision contained herein, Licensee agrees to reimburse Company for all cost and expense for any damage to Company's facilities resulting from Licensee's use of the Lands and agrees that if, in the opinion of Company, it becomes necessary as a result of Licensee's use of the Lands for Company to relocate, rearrange or change any of its facilities, to promptly reimburse Company for all cost and expense involved with such relocation, rearrangement or change. 12. Each party hereto agrees that it shall be responsible for its own negligent acts or omISSIOns. Nothing contained in the Section shall be construed to be a waiver of any protections under sovereign immunity, Section 768.28, Florida Statutes, or any other similar provision of law. Nothing contained herein shall be construed to be a consent by either party to be sued by third parties in any matter arising out ofthis agreement. 13. Licensee is self insured for all liability claims and related expenses pursuant to the provisions of Florida Statute 768.28. 14. This Agreement will become effective upon execution by Company and Licensee and will remain in full force and effect until completion of Licensee's use of the Lands pursuant to this Agreement, unless earlier terminated upon ninety (90) days written notice by Company to Licensee, or at the option of Company, immediately upon Licensee failing to comply with or to abide by any or all ofthe provisions contained herein. 15. The use granted herein as shown on Exhibit "A" shall be under construction by Licensee within three (3) years of the effective date of this agreement and the construction shall be diligently pursued to completion. Licensee shall give Company ten (10) days prior written notice of Form 3740 Rev. 10/9/95 Page 2 of 5 its commencement of construction. "Under construction" is the continuous physical activity of placing the foundation or continuation of construction above the foundation of any structure or improvement permitted hereunder. Under construction does not include application for or obtaining a building permit, a site plan approval or zoning approval from the appropriate local government agency having jurisdiction over the activity, purchasing construction materials, placing such construction materials on the site, clearing or grading the site (if permitted) in anticipation of construction, site surveying, landscaping work or reactivating construction after substantially all construction activity has remained stopped for a period of two (2) months or more. Licensee acknowledges that failure to have the use under construction within the three (3) year time period will result in immediate termination of this Agreement in accordance with Paragraph 14 herein for failing to comply with the provisions contained herein unless Company grants a written extension for a mutually agreed upon time. Any request for an extension oftime shall be submitted in writing by Licensee no later than thirty (30) days prior to the expiration of the three (3) year period for the project to be under construction. 16. The term "Licensee" shall be construed as embracing such number and gender as the character of the party or parties require(s) and the obligations contained herein shall be absolute and primary and shall be complete and binding as to each, including its successors and assigns, upon this Agreement being executed by Licensee and subject to no conditions precedent or otherwise. 17. Should any provision of this agreement be determined by a court of competent jurisdiction to be illegal or in conflict with any applicable law, the validity of the remaining provisions shall not be impaired. In the event of any litigation arising out of enforcement of this agreement, the prevailing party in such litigation shall be entitled to recovery of all costs, including reasonable attorneys' fees. 18. Licensee may assign its rights and obligations under this agreement to a solvent party upon prior written consent ofthe company, which consent shall not be unreasonably withheld. 19. This Agreement includes and is subject to the provisions described on the attached Addendum. Form 3740 Rev. 10/9/95 Page 3 of 5 ~ parties have nO Witnesses for Company: executed J,his Right-of-Way Consent Agreement this b~ day of ,200T " ::/~ Y. ./ Name: 1^1 /fjU~ Z l..- ( ,<!;" ~ Company: FLORIDA POWER & LIGHT COMPANY, A Florida corporation By: ~/4~ Area Real Estate Manager N~Sc.. S la...f-.J. Dated: /,/02 J. (;. O~ 1 ATTEST: DWIGHTE,. M2,CK, Clerk . -. ~ ,,> -.. -.'. ., , . ~"'" t....""~ .-.~/;~ Licensee: COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS AS GOVERNING BODY OF COLLIER COUNTY, FLORIDA #~N By: JAMES COLETTA, CHAIRMAN S j QllatlJ.'t on l v Approved as to form and legal sufficiency: Q~. & a,~~/,/i'-- Ellen T. Chadwell Assistant County Attorney Dated: :J ~.l (/ 1 . I Form 3740 Rev. 10/9/95 Page 4 of 5 ADDENDUM . No excavation will be done from the Lands (East side of the canal) . During the term of this Agreement, as well as at conclusion of Licensee's use, all areas will be restored to as good or better condition as existed prior to Licensee use to facilitate Company's continuous access. . If necessary, Company may require installation of Jersey barricades around down guys and anchors to protect said facilities from being struck or damaged. . Licensee will notify Company one week prior to commencement of work to schedule safety meeting. . Installation of any culverts within the Lands will meet AASHTO HS-25 for vehicle loading. Form 3740 Rev. 10/9/95 Page 5 of 5 EXHIBIT A ~ \ of I EXHIBIT "A" The West 110 feet of the East 12 of Section 18, Township 50 South, Range 26 East, Collier County, Florida, less the South Thirty (30) feet thereof.