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Agenda 02/10/2009 Item #10D Agenda Item No. 10D February 10, 2009 Page 1 of 12 EXECUTIVE SUMMARY ~ Recommendation that the Board of County Commissioners approves the Wetland Mitigation and Panther Habitat Unit Option Agreement with the Barron Collier Companies and authorizes the Chairman to sign the document. Project #60044. OBJECTIVE: Recommendation that the Board of County Commissioners approves the Wetland Mitigation and Panther Habitat Unit Option Agreement with the Barron Collier Companies, and authorize the Chainnan to sign the document. CONSIDERATIONS: On April 26, 2005, the Board of County Commissioners entered into a Developer Contribution Agreement with Ave Maria Development, LLLP. As part of this Agreement the County has agreed to provide six lane improvements to Oil Well Road, To accelerate these improvements the Developer, Barron Collier Companies, has agreed to donate certain right-of-way, fund the cost of designing and permitting the section of Oil Well Road from lmmokalee Road to Carnp Keais Road in exchange for impact fee credits, and to provide fill to the County at its cost. The County is responsible for mitigation, - The construction of Oil Well Road will impact both wetlands and panther habitat Through the permitting process, Barron Collier Companies has set aside land and has agreed to perform site enhancement to be used as wetland mitigation. The Biological Opinion provided by the US Fish and Wildlife Service governs panther mitigation. The Biological Opinion for Oil Well Road Project also includes the 159 acre South Grove Lake project which may supply the fill for Oil Well Road. The Barron Collier Companies have agreed to provide the necessary mitigation credits at a cost that is 20% less than what the County would pay at the contracted mitigation banks. The County will purchase 30,86 wetland credits at $48,000 per credit for a total of $1,481,280. Each wetland credit includes 8.96 Panthcr Habitat Units (PHUs) for a total of276.5 PHUs, With the approval of the US Fish and Wildlife Service Biological Opinion the County's portion for the Oil Well Road project will be 1829 PHI Is. The Barron Collier Companies can provide the 1829, less the 276.5 PHUs included in the 30.86 wetland credits, for a total of1552.5 PHUs for $1200 per unit or a cost not to exceed $1,863,000. The Barron Collier Companies has allowed an arrangement for the County to pursue the creation of PH Us on its Starnes property to mitigate the road project. If the County is able to create PHUs on the Starnes property, then the County would "bank" a corresponding number of PHUs for the future benefit of Barron Collier Companies, The Starnes property will generate 2,072,5 PHUs which will be available for $372.54 each, This could eliminate the need to purchase PHUs from the Barron Collier Companies. _. The Barron Collier Companies will be rcsponsible for the 1282 PHUs for the South Grove Lakes portion of the permit Barron Collier may be reimbursed for the cost of the PHUs through a prorated cost of the expected yield of excavated material. It is estimated that the yield from South Grove Lake will he approximately 7,000,000 cubic yards. The cost of the 1282 PHUs would be $1,538,400, with the result that each cubic yard supplied to the County would have a PHU cost of approximately 22 cents added to the overall cost of the fill. Agenda Item NO.1 00 February 10, 2009 Page 2 of 12 FISCAL IMPACT: Funds in the amount not to exceed $3,344,280 are available from Gas Tax and Impact Fee Funds, Project 60044. LEGAL CONSIDERATIONS: This item has been reviewed for legal sufficiency and is legally sufficient for Board action. This item is not quasi-judicial, and as such, ex parte disclosure is not required, This item requires majority vote only. -JW GROWTH MANAGEMENT IMPACT: This item is consistent with Goals I and 6 of the Conservation and Coastal Management Element. RECOMMENDATION: The Board of County Commissioners approves the Wetland Mitigation and Panther Habitat Unit Option Agreement and authorizes the Chairman to sign the document. Prepared by: Kevin H. Dugan, Project Manager, TECM Attachments: Exchange Agreement Mitigation Agreement ,~ Item Number: Item Summary: Meeting Date: Page 10f2 Agenda Item No. 10D February 10, 2009 Page 3 of 12 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS 100 Recommendation that the Board of County Commissioners approves the Wetland Mitigation and Panther Habitat Unit Option Agreement with the Barron Collier Companies and authorizes the ChaIrman to sign the document Project #60044. (Norman Feder, Transportation Services Administrator) 2/10/2009 90000 AM Prepared By Kevin H. Dugan Transportation Services Project Manager Transportation Engineering and Construction Date 1/27/2009 1 :09:32 PM Approved By Gary Putaansuu Transportation Services Principal Project Manager Transportation Engineering and Construction Date Approved By Norm E. Feder, Alep 1127120091 :15 PM Transportation Services Transportation Division Administrator Transportation Services Admin. Date Approved By Brian Hancock 1127120091:31 PM Transportation Division Operations Support Manager Date Transportation Administration 1128/2009 8:00 AM Approved By Lisa Taylor Transportation Services ManagemenUBudget Analyst Transportation Administration Date 1128120099:18 AM Approved By Nick Casalanguida Tl'anspor:'ation Servl(;es MPO Director Date Approved By Iransportalion Planning i/28i2;009 3:27 PM Najeh Ahmad Transportation Services Director Date Transportation Engineering & Construction Management 1129120092:41 PM ^ pproved By Jeff Klatzkow County Attorney Assistant County Attorney County Attorney Office Date 1130120099:46 AM Approved By Pat Lehnhard Transportation Services Executive Secretary Date Transportation Services Admin 1/30/20099:54 AM Approved By Susan Usher County Manager's Office Senior Management/Budget Analyst Office of Management & Budget Date 212/200910:45 AM file://C:\AgendaTest\Export\ 123-February%20 1 0,%202009\ 1 0.%20COUNTY%20MANAGE... 2/4/2009 Page 20f2 Agenda Item NO.1 OD February 10, 2009 Page 4 of 12 Approved OJ James V, Mudd Board of County Commissioners County Manager Date County Manager's Office 2/3/20099:59 AM file://C:\AgendaTest\Export\ 123-February%20 1 0,%202009\ 1 0.%20COUNTY%20MANAGE.., 2/4/2009 Agenda Item No. 100 WETLAND MITIGATATION AND PANTHER HABITAT UNIT February 10, 2009 Page 5 of 12 OPTION AGREEMENT THIS WETLAND MITIGATION AND PANTHER HABITAT UNIT OPTION AGREEMENT (hereinafter referred to as the "Agreement") is made and entered into this of , 2009, by and between Collier County, a political subdivision of the State of Florida (the "County"), and the Barron Collier Partnership, LLLP, a Florida limited liability limited partnership ("Barron Collier"). RECITALS WHEREAS, the County and Barron Collier, as co-applicants, have jointly filed permit applications for expansion of segments of the Oil Well Road right-of-way (the "Roadway Expansion") and for approval of related mitigation of the planned expansion on wetlands and Florida panther habitat; and WHEREAS, as a condition of obtaining the necessary State and Federal permits prior to commencing construction of the Oil Well Road project, the County is required to obtain both wetland mitigation and panther habitat unit mitigation credits; and WHEREAS, in order to secure the necessary wetland mitigation and panther habitat unit credits, Barron Collier and the County, have jointly applied for governmental for wetlands restoration, enhancement, maintenance, and monitoring (lhe "Mitigation Plan") for approximately 529 acres within Camp Keais Strand (the "Mitigation Area"), which permits include approval of a mitigation plan for, a Section 404 permit (Application number 2006-7018- IP) with the U.S. Army Corps of Engineers (the "USACE") (the "USACE Permit") and an Environmental Resource Permit application with lhe South Florida Water Management District (the "SFWMD") (pending under application number 061010-15) (the "ERP Permit"Xthe USACE Permit and ERP Permit hereinafter collectively called the "Roadway Permits"); and WHEREAS, the County wishes to purchase 30.86 wetlands mitigation credits that will be generated by the Mitigation Area and Mitigation Plan (the "Wetlands Credits") pursuant to the terms and conditions of this Agreement and subject to the requirements of the Mitigation Plan; and WHEREAS, with the approval of USACE and United States Fish and Wildlife Service ("USFWS"), Barron Collier has the ability to create 2,000 panther habitat unit mitigation credits (the "Panther Credits") by dedicating primary zone panther habitat area owned by Barron Collier to the USFWS as a conservation easement area; and WHEREAS, the County may wish to purchase up to 2,000 Panther Credits from Barron Collier pursuant to the terms and conditions of this Agreement, with the final number of Panther Credits required by the County to be later determined by USFWS. WITNESSETH NOW, THEREFORE, in consideration of Ten Dollars (10.00) and other good and valuable consideration exchanged amongst the parties, and in consideration of the covenants contained herein, the parties agree as follows: 1. All of the above REClT ALS are true and correct and are hereby expressly incorporated herein by reference as if set forth fully below. Agenda Item No. lOD 2. CONDITIONS TO SALE; ADDITIONAL CREDITS. fl1~ru~~t~~~ acknowledge that the Mitigation Plan, Wetlands Credits, and Panther Credits are subject to review and approval by third-party governmental entities under the Roadway Permits, and agree that Barron Collier's obligation to convey the Wetlands Credits and Panther Credits is conditioned on such approval. Both parties shall exercise a good faith and diligent effort to secure such approval. With respect to the Wetlands Credits and Mitigation Plan, Barron Collier shall prepare and submit a "time zero" report for approval by SFWMD following completion of the wetlands restoration and enhancement activities (the "Time Zero Report"), The Wetlands Credits and Mitigation Plan shall be deemed approved upon SFWMD's written acceptance of the Time Zero Report. The Panther Credits shall be deemed approved upon recordation of a conservation easement (from Barron Collier to USFWS) over primary zone panther habitat area (the "Conservation Easement"). To the extent necessary, the County shall cooperate with Barron Collier in securing such approval, including providing such infonnation and executing such applications, petitions, and requests as may reasonably be necessary. This Agreement is limited to the specific number of Wetlands Credits and Panther Credits enumerated herein. Any excess panther or wetlands mitigation credits above and beyond the Wetlands Credits and Panther Credits that are created by virtue of Barron Collier's fulfillment of its obligations under this Agreement shall remain the sole and exclusive property of Barron Collier. In the event the Panther Credits and/or Wetlands Credits are not sufficient to mitigate the impacts of the Oil Well Road expansion (as reflected in the initial permit applications or in any future pennit modification), the County shall be responsible for separately securing any additional required panther or wetlands mitigation credits. 3. COUNTY ALTERNATIVE PHU SOURCE. The County expects to seek USACE and USFWS approval for an undetennined number of panther habitat unit mitigation credits (the "County PHUs") created by restoring, enhancing, maintaining, and monitoring wetlands and habitat on a parcel of County-owned property commonly referred to as the "Starnes Parcel." In the event the County is able to secure fmal approval of County PHUs on the Starnes Property within one (I) year from the Effective Date of this Agreement, then-the following tenns shall apply: A. The County PHUs (up to a maximum of 2,000 County PHUs) will be irrevocably "banked" and reserved by the County for the sole and exclusive benefit of Barron Collier, including without limitation the right to sell them under such tenns as are desired by Barron Collier, in its sole discretion. In the event the number of County PHUs exceeds the number of Panther Credits required to mitigate the Oil Well Road expansion (as later detennined by USFWS), then the excess County PHUs shall remain the property of the County and shall not be subject to the tenns of this Agreement; and B. The conveyance, assignment, and banking of the County PHUs for the benefit of Barron Collier shall serve as an "in-kind" exchange (in lieu of the County's obligation to pay the corresponding portion of the Purchase Price described in Paragraph 4.B, below) for the corresponding number of Panther Credits being purchased by the County under this Agreement. If the number of County PHUs is less than the required number of Panther Credits, then the County shall pay the corresponding portion of the Purchase Price for the difference between the required number of Panther Credits and the County PHUs. By way of example, if the County creates 1,000 County PHUs and is required by USFWS to secure 2,000 Panther Credits, then the County shall pay Barron Collier the corresponding cash portion of the Purchase Price for 1,000 Panther Credits and shall bank and reserve the 1,000 County PHUs for the benefit of Barron Collier in lieu of the Page 2 of8 Agenda Item NO.1 OD corresponding pro-rata portion of the Purchase Price cash payment allocable15~;{g~Ofof~~ County PHUs. As a condition to the County PHUs serving as an "in-kind" payment to Barron Collier for the corresponding number of Panther Credits, the County PHUs: 1. Must receive final approval by all applicable regulatory or governmental agencies within one (1) year after the Effective Date of this Agreement; 2. must be subject to a USFWS conservation easement that obligates the County to monitor and maintain the related habitat and wetlands without contribution from Barron Collier; 3. must be freely transferable and assignable for value at the sole discretion and direction of Barron Collier; and 4. must otherwise have the characteristics, benefits, and value necessary to fulfill the intent of this Paragraph 3 that the County PHUs serve as an in-kind payment for ilie corresponding number of Panther Credits. The terms, obligations, and conditions of this Paragraph 3 shall survive transfer of the Wetlands Credits and ilie Panther Credits to the County and payment to Barron Collier of the Purchase Price. 4. PURCHASE PRICE; PAYMENT. The estimated aggregate "Purchase Price" for the Wetlands Credits and Panther Credits is Three Million Five Hundred Forty-Nine Thousand Four Hundred and Eighty Dollars ($3,549,480). The estimated Purchase Price is based on the following per-unit prices for the Wetlands Credits and the Panther Credits, and shall be adjusted based on the actual number of Panther Credits required by USFWS to mitigate the Oil Well Road expansion: A. Wetlands Credits. The Wetlands Credits Purchase Price is Forty-Eight Thousand Dollars ($48,000) per Wetlands Credit for a total of One Million Four Hundred Eighty- One Thousand Two Hundred and Eighty Dollars ($1,481,280). Each of the 30.86 Wetlands Credits includes 8.96 "bundled" Panther Credits for a total of 276.5 bundled Panther Credits. The 276,5 bundled Panther Credits are included in the Purchase Price for the Wetlands Credits. Should the permitting agencies determine iliat approval of the Roadway Permits (either in their current state or as subsequently modified) require more than 30.86 Mitigation Credits, then Barron Collier may, in its sole discretion, agree to assist in providing the additional Mitigation Credits to the County upon mutually agreeable terms. In the case of such agreement, this Agreement shall be modified in writing to reflect terms acceptable to the parties for the creation and sale of such additional Mitigation Credits. In the event Barron Collier declines to provide such additional Mitigation Credits, then the County shall be solely responsible for securing same at its sole cost and expense. Any excess Mitigation Credits beyond the 30.86 credits contemplated by this Agreement created under the Roadway Permits shall inure to the benefit of Barron Collier who may utilize such excess credits as it deems appropriate, in its sole discretion B. Panther Credits. For the remaunng 1,723.50 Panther Credits that are not "bundled," the Purchase Price shall be $1,200 per Panther Credit, for a total of Two Million Sixty-Eight Thousand and Two Hundred Dollars ($2,068,200). In the event the permitting agencies determine that additional panther habitat unit mitigation credits beyond the estimated 2,000 are needed to mitigate the impacts of the Oil Well Road expansion, then the County will have the right to purchase such additional credits from Barron Collier (to the extent that Barron Collier has additional credits available for sale) at a per-credit cost of $1,200. The Purchase Price for the Wetlands Credits shall be paid as follows: 1. One-half (1/2) shall be paid upon approval of the permits for the Mitigation Plan and Barron Collier's payment of the Page 3 of8 ~-_.__.._--- .. Agenda Item NO.1 00 corresponding performance bond; and 2. the remaining one-half (112) shall be paiaWiliJBJl~~~ (10) days following SFWMD's written acceptance of the Time Zero Report. The Purchas';;~aceo for the Panther Credits shall be based on the actual number of Panther Credits required by USFWS, and shall be paid one(l) year from the Effective Date if the County is unable to satisfy all conditions for the creation, assignment, conveyance, and banking of the County PHUs (as enumerated in Paragraph 3, above). In the event the County PHUs are so created, assigned, and conveyed, and thereafter fail to satisfy the conditions stated in Paragraph 3, above, then the corresponding portion of the Purchase Price shall be paid to Barron Collier within ten (10) days after Barron Collier's notice to the County of such failure. The foregoing term shall survive transfer of the Wetlands Credits and the Panther Credits to the County and payment to Barron Collier of the Purchase Price. 5, DMSION OF ROADWAY PERMIT RESPONSmILlTIES. The parties agree and acknowledge that the activities and improvements contemplated by the Roadway Permits relate to both the construction of right-of-way improvements by Collier County and to the restoration, enhancement, and monitoring by Barron Collier of lands necessary for the creation of mitigation credits for the benefit of the Roadway Expansion. The parties wish to define their respective obligations with respect to the Roadway Permits, and to provide for modification of the Roadway Permits at the earliest possible opportunity to remove Barron Collier as a named permittee. The parties accordingly agree as follows: A. Barron Collier Responsibilities, Barron Collier shall be responsible, at its sole cost and expense, for satisfying all obligations under the Roadway Permits to create Mitigation Credits within the Mitigation Area, including without limitation the restoration, recreation, maintenance, and monitoring of related wetlands habitat and conditions; the granting of a Conservation Easement in a form acceptable to the SFWMD and USACE; and providing related financial assurances (collectively the "Mitigation Activities"). Barron Collier shall commence the Mitigation Activities upon occurrence of both of the following: I. The Roadway Permits have been issued and are [mal; and 2. receipt by Barron Collier of a copy of the County's written Notice to Proceed directing the County's contractor to commence construction of the Roadway Expansion improvements. B. Countv Responsibilities. The County shall be responsible, at its sole cost and expense, for satisfying all obligations under the Roadway Permits related to construction of the Roadway Expansion, including without limitation the construction of all right-of- way improvements; the posting of any necessary performance bond, security, or alternative assurances for completion of said improvements; and the costs of securing approval and acceptance of the improvements (collectively the "Expansion Activities"). The County shall require that each contractor, subcontractor, and material provider who provides goods and/or services towards construction of the Roadway Expansion carry property damage and public liability insurance coverage in the following amounts with the County, Barron Collier, and Ave Maria Development, LLLP, named as additional insured parties (the "Required Insurance"): Page 4 of 8 Auto/General Liability $2,000,000 $1,000,000 $1,000,000 $500,000 Agenda item No. 100 C b. d S. I L' 't February 10 2009 om me mg e lIll1 Page 9 of 12 Any One Occurrence Personal Injury Property Damage The Required Insurance policy binders shall reflect that each additional insured party shall be indemnified on a primary and non-contributory basis utilizing an ISO standard endorsement at least as broad as CG 2010 (11/85), (policy or endorsement will include coverage for ongoing operations as well as products and completed operations) and shall include a waiver of subrogation clause in favor of each additional insured party. The County shall secure and provide copies of the corresponding policies for the Required Insurance to Barron Collier within ten (10) days following Barron Collier's written request for same. Upon completion of the Mitigation Activities and approval/acceptance thereof by SFWMD, the parties will request for the ERP Permit to be modified to remove the Mitigation Area and Barron Collier therefrom and to reflect the County as the sole permittee for the construction, operation, and maintenance of the remaining improvements associated with the Oil Well Road project. The parties agree to fully cooperate in so modifying the ERP Permit. Both parties agree that as co-applicants for the ERP Permit, each retains the right to accept or reject the fmal permit and conditions. Should either party withdraw from the ERP Permit application, the terms of this Agreement shall terminate. Lel!al Matters 6. This Agreement shall not be constructed or characterized as a development agreement under the Florida Local Government Development Agreement Act. 7. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the parties to this Agreement. 8. In the event state or federal laws are enacted after the execution of this Agreement, which are applicable to and preclude in whole or in part the parties' compliance with the terms of this Agreement, then in such event this Agreement shall be modified or revoked as is necessary to comply with such laws, in a many which best reflects the intent of this Agreement. The invalidity of one or more terms or conditions in this Agreement shall not affect the validity of the remaining portion of the Agreement, providcd that the material purposes of this Agreement can be determined and effectuated. 9. Except as otherwise provided herein, this Agreement shall only be amended by mutual written consent of the parties hereto or by their successors in interest. All notices and other communications required or permitted hereunder shall be in writing and shall be sent by Certified Mail, return receipt requested, or by a nationally recognized overnight delivery service, and addressed to the parties as follows (or such other address of which a party hereto shall give notice):. Page 5 of8 For the County: Agenda Item No.1 00 February 10, 2009 Page 10 of 12 NameITitle: Address: County Manager 3001 Tamiami Trail, East Naples, Florida 34112 239-252-8383 239-252-4010 Phone: Fax: With copies to: Administrator, Transportation Division Address: 2885 S. Horseshoe Drive Naples, Florida 34104 239-252-8192 239-252-2726 Phone: Fax: For Barron Collier: NameITitle: David B. Genson; Vice President of Engineering Address: 2600 Golden Gate Parkway; Naples, Florida 34105 Phone: 239-262-2600 Fax: 239-403-6808 With copies to: George L. Varnadoe, Esquire Cheffy Passidomo Wilson & Johnson, LLP 821 5th Avenue South Naples, Florida 34102 Phone: 239-261-9300 Fax: 239-261-9782 Notice shall be deemed to have been given on the next successive business day to the date of the courier, if sent by nationally recognized overnight delivery service, or if delivered by Certified Mail, upon actual receipt. 10. Barron Collier shall execute this Agreement prior to it being submitted for approval by the Board of County Conunissioners. The Effective Date of the Agreement shall be the date that it is approved by the Board of County Commissioners at a du1y noticed public hearing. In the event this Agreement has not been so approved by the Board of County Commissioners within sixty (60) days after execution by Barron Collier, then it shall be deemed terminated and rendered nu11 and void. This Agreement shall be recorded by the County in the Official Records of Collier County, Florida, within fourteen (14) days after the Effective Date. Barron Collier shall pay all costs of recording this Agreement. The County shall provide a copy of the recorded document to Barron Collier upon request. II. In the event of any dispute under this Agreement, the parties shall attempt to resolve such dispute first by means of the County's then-current Alternative Dispute Resolution ("ADR") Procedure, if any. Following the conclusion of such procedure, if any, either party may file an action for injunctive relief in the Circuit Court of Collier County to enforce the terms of this Agreement, and remedy being cumu1ative with any and all other remedies available to the parties for the enforcement of the Agreement. This Agreement shall be interpreted without Page 6 of 8 Agenda Item No.1 00 regard to any presumption or other rule requiring interpretation against the party ~~~e~~~~ Agreement or any part thereof to be drafted. 12. This Agreement constitutes the entire agreement between the County and the parties with respect to the activities noted herein. All prior representations, undertakings, and oral agreements by or between the parties hereto with respect to the subject matter of this Agreement are merged into, and expressed in, this Agreement, and any and all prior representations, undertakings, and oral agreements by and between such parties with respect thereto hereby are canceled. This Agreement is not intended to amend or modify any other written Agreement between the parties with respect to the Oil Well Road project. 13. The individuals signing this Agreement on behalf of each party represents and warrants that he or she has the full power and authority to execute this Agreement for the party upon whose behalf he or she is executing same and that upon such execution, such party shall be fully bound by each and every provision of this Agreement. 14. Nothing contained herein shall be deemed or construed to create between or among any of the parties any joint venture or partnership nor otherwise grant to one another the right, authority or power to bind any other party hereto to any agreement whatsoever. Unless expressly stated herein to the contrary, nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than the parties and their respective legal representatives, successors and permitted assigns. Nothing in this Agreement is intended to relieve or discharge the obligation or liability of any third persons to any party to this Agreement, nor shall any provision give any third persons any right of subrogation or action over or against any party to this Agreement. 15. This Agreement may be executed in separate counterparts, each of which when so executed shall be an original, but all of which together shall constitute but one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their appropriate officials, as of the date first above written. Attest: DWIGHT E. BROCK, Clerk BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA By: By: Donna Fiala, Chairman , Deputy Clerk Approved as to form and legal sufficiency: Jeffrey A. Klatzkow County Attorney Page 7 of8 ATTEST: Agenda Item NO.1 00 BARRON COLLIER PARlNERSHIP i<>bflUlry 10, 2009 , "-''Page120f12 By: Lamar Gable, Agent ATTEST: By: Bradley A. Boaz, Agent Corporate Seal Page 8 of8