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Agenda 07/28/2009 Item #16B 7Agenda Item No. 16137 July 28, 2009 Page 1 of 56 EXECUTIVE SUMMARY Recommendation that the Board of County Commissioners authorize a transfer of $250,000 from Fund 313 (Reserve for Contingencies) to Project #60166 (Logan Boulevard) for legal fees associated with Case No. 09- 2451 -CA, G.L. Homes of Naples Associates II, Ltd. vs. Collier County. OBJECTIVE: That the Board of County Commissioners (Board) approves a transfer of funds to pay for legal fees associated with Case No. 09- 2451 -CA, G.L. Homes of Naples Associates II, Ltd. vs. Collier County, pending in the Twentieth Judicial Circuit in Collier County. CONSIDERATIONS: The County'has been sued by G.L. Homes of Naples Associates Il, Ltd., (hereinafter "G.L. Homes "), whose claims are set forth in the attached complaint. Briefly stated, the complaint alleges that G.L. Homes and the County entered into a Developer Contribution Agreement ( "DCA ") in 2002 that was amended in 2006. The DCA provided that in exchange for transportation concurrency vesting, the Developer would construct Logan Boulevard extension between Vanderbilt Beach Road and Immokalee Road, and would be reimbursed for its cost of constructing Logan Boulevard through impact fee credits. The construction of Logan Boulevard was completed, but the contemplated 850 units were not built. The Developer is looking to be reimbursed in cash payment totaling $10,060,515.96 for the costs it incurred in this road project. Through no fault of the County, G.L. Homes has not moved forward with the construction of their development of 850 residential units. The County has vested the project and impact fee credits have been issued to G. L. Homes. FISCAL IMPACT: Up to $250,000 will be used for legal fees. The funds are available from contingency reserves in Fund 313. GROWTH MANAGEMENT IMPACT: There is no Growth Management Impact associated with this Executive Summary. LEGAL CONSIDERATIONS: This item raises no legal issues. This is a regular matter requiring simple majority vote. —JAK RECOMMENDATION: Recommendation that the Board of County Commissioners transfer $250,000 from Fund 313 (Reserve for Contingencies) to Project #60166 (Logan Boulevard) for legal fees associated with Case No. 09- 2451 -CA, G.L. Homes of Naples Associates II, Ltd. vs. Collier County and authorizes staff to pay all approved invoices. Prepared by: Nick Casalanguida, Transportation Planning Director Attachment: Complaint Page 1 of 1 Agenda Item No. 1687 July 28, 2009 Page 2 of 56 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: 1687 Item Summary: Recommendation that the Board of County Commissioners authorizes a transfer of $250,000 from Fund 313 (Reserve for Contingencies) to Project #60166 (Logan Boulevard) for legal fees associated with Case No. 09- 2451 -CA, G.L. Homes of Naples Associates II, Ltd. vs. Collier County. Meeting Date: 7/28/2009 9:00:00 AM Prepared By Nick Casalanguida MPO Director Date Transportation Services Transportation Planning 7/6/2009 10:10:18 AM Approved By Nick Casalanguida MPO Director Date Transportation Services Transportation Planning 716/2009 10:02 AM Approved By Gloria Herrera Management /Budget Analyst Date Transportation Services Stormwater Management 7/7/2009 9:12 AM Approved By Jeff Klatzkow County Attorney Date County Attorney County Attorney Office 7/7/2009 10:45 AM Approved By Therese Stanley Grants Coordinator Date Transportation Transportation Administration 7/8/2009 1:00 PM Approved By Najeh Ahmad Director Date Transportation Services Transportation Engineering & 71912009 10:41 AM Construction Management Approved By Pat Lehnhard Executive Secretary Date Transportation Services Transportation Services Admin 7/9/2009 10:51 AM Approved By OMB Coordinator OMB Coordinator Date County Manager's Office Office of Management & Budget 71912009 11:27 AM Approved By Susan Usher Senior Management/Budget Analyst Date County Manager's Office Office of Management & Budget 7/16/2009 4:12 PM Approved By Leo E. Ochs, Jr. Deputy County Manager Date Board of County County Manager's Office 7/16/2009 5:18 PM Commissioners file: / /C: \AgendaTest \Export\133- July %2028, %202009\ 16. %2000NSENT %20AGENDA \1... 7/22/2009 t G.L. HOMES OF NAPLES ASSOCIATES 11, LTD., a Florida limited partnership, Plaintiff, vs. COLLIER COUNTY, a political subdivision of Florida through its governing body, BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY Defendant. Agenda Item No. 1687 July 28, 2009 Page 3 of 56 IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CASE NO. COMPLAINT Plaintiff G.L. HOMES OF NAPLES ASSOCIATES 11, LTD. hereby sues COLLIER COUNTY, a political subdivision of the State of Florida, through its governing body, the BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, and avers: Jurisdiction and Venue 1. This is an action against Defendant for breach of contract. 2. G.L. Homes of Naples Associates II, Ltd. ( "GL Homes ") is a Florida limited partnership duly existing pursuant to the laws of the State of Florida, authorized to do business in Florida, with its corporate offices located in Broward County and conducting business in Collier County. 3. Collier County is a political subdivision of the State of Florida. The Board of County Commissioners of Collier County ( "Board ") is a corporate body politic duly formed and validly existing in the State of Florida, and the Board is the governing body " Agenda Item No. 1687 July 28, 2009 Page 4 of 56 of Collier County, The Board is located in Collier County, Florida. Collier County and the Board are collectively referred to as "Defendant" herein. 4. This Complaint asserts a cause of action for damages in excess of $15,000.00, exclusive of interest and attorney's fees and costs; therefore, jurisdiction properly lies in Collier County Circuit Court. 5. Venue properly lies in Collier County, Florida, because Defendant transacts business in Collier County, Florida; the cause of action averred herein accrued in Collier County, Florida; and the contract sued upon herein contains a venue provision providing for venue in Collier County, Florida. General Allegations 6. On or about May 9th, 2006, GL Homes and Defendant entered into a binding contract titled "Amended and Restated Standard Form Collier County Contribution Agreement For Road Impact Fee Credits" (further referenced herein as the "Agreement "). The Agreement and its exhibits are attached hereto as Exhibit 1 and are incorporated herein by reference. 7. The Agreement is recorded in the Official Records of Collier County, Florida in Official Records Book 4034, at Pages 1820 -1860. 8. Defendant represented and warranted that it had the full right and lawful authority to enter the Agreement. Exhibit 1, ¶ 20.A. 9. Defendant further represented and warranted that the execution, delivery, and performance of the Agreement was duly authorized and that no consent of any other person or entity to the execution, delivery, and performance was required to render the E Agenda Item No. 16137 July 28, 2009 Page 5 of 56 Agreement a valid and binding instrument enforceable against Defendant. Exhibit 1, ¶ M 10. Under the Agreement, GL Homes agreed to construct roadway improvements consisting of the extension of Logan Boulevard as a two (2) lane divided roadway between Vanderbilt Beach Road and Immokalee Road, (herein referred to as the "Project "), and commonly referred to as the Logan Boulevard Extension. The Project is further described in Exhibit A to the Agreement, which Agreement is attached hereto as Exhibit 1. 11. In exchange for GL Homes' work on the Project, Defendant promised to provide GL Homes with cash and credits for road impact fees; and in addition, certain vesting rights for road concurrency. 12. More specifically, paragraph 8 of the Agreement provides: The amount of road impact fee credits to which [GL Homes] shall be entitled to under this Agreement (collectively "Road Impact Fee Credit Amount ") shall be equal to the amount of the Final Credit Estimate of Probable Costs as amended from time to time. The Road Impact Fee Credit Amount shall be earned and available for use by [GL Homes] immediately upon (a) [GL Homes] expending any monies toward the design construction and ultimate completion of the Project with the amount of Road Impact Fee Credit Amount earned being equal to the amount expended by [GL Homes] from time to time, and /or (b) the County drawing against the Surety with the amount of Road Impact Fee Credit Amount earned being equal to the amount of monies drawn by the County against the Surety from time to time, and /or (c) the payment of any and all monies by fGL Homes] to the County in the event the County is unable to collect on the Surety and the County seeks and receives payment from [GL Homes] in lieu of the surety. The Road Impact Fee Credit Amount once earned by [GL Homes] shall not be subject to forfeiture, reduction, recission or diminishment regardless of whether or not [GL Homesj commits an Event of Default. This paragraph shall survive the completion of the Project and acceptance of the same by the County or earlier termination of this Agreement. Exhibit 1, ¶ 8 (emphasis added). 3 Agenda Item No. 16137 July 28, 2009 Page 6 of 56 h 13. Under the unambiguous terms of paragraph 8 of the Agreement, GL Homes earned and is entitled to use of the Road Impact Fee Credit Amount immediately upon expending any monies toward the Project. 14. Moreover, paragraph 20.C. 'of the Agreement requires that upon completion and acceptance of the Project, Defendant shall: a. issue the Road Impact Fee Credit Amount to GL Homes; b. vest the Terafina Development with traffic concurrency for 850 residential units for the initial five [5] year vesting period and the five [5] year extension vesting period pursuant to the terms set for in this Agreement; c. issue the Certificate of Public Facilities Adequacy for the initial five [51 year vesting period and the five [5] year extension vesting period pursuant to the terms set forth in this Agreement. Exhibit 1, ¶20.C. 15. An "Event of Default" occurred under the Agreement through a "breach by the County to comply with any of the terms or conditions of this Agreement by which the County is to comply." Exhibit 1, ¶ 21.B. 16. GL Homes fully performed and satisfied its obligations under the Agreement by completing construction of the Project. The roadway constructed by GL Homes and outlined in the Project was completed and open for public use on or about October 2, 2007. 17. On January 29, 2008, Defendant issued a Certificate of Public Facility Adequacy ( "Certificate of Adequacy ") to GL Homes. The Certificate of Adequacy is applicable for 850 units and expires May 9, 2016. 18. The Certificate of Adequacy was issued pursuant to the Developer Contribution Agreement and was signed by Nick Casalanguida as the authorized agent 4 Agenda Item No. 16137 July 28, 2009 Page 7 of 56 for Defendant and as Collier County's Director Transportation Planning Department. A copy of the Certificate of Adequacy is attached hereto as Exhibit 2. 19. GL Homes expended $10,060,515.96 on the design, construction, and ultimate completion of the Project. Defendant verified and approved this amount of costs in accordance with the Agreement. 20. In that regard, on or about July 23, 2008, Defendant, through its agents, sent an interoffice memorandum certifying the $10,060,515.96 in final costs incurred by GL Homes for the Project. A copy of the July 23, 2008 memorandum is attached hereto as Exhibit 3. 21. Defendant accepted GL Homes' performance and completion of the Project. On or about September 2, 2008, Defendant, through its agent and Transportation Planning Director Nick Casalanguida, acknowledged in a written memorandum that: GL Homes has satisfied their requirement to complete the Logan Boulevard Extension from Vanderbilt Beach Road to Immokalee Road. Please issue transportation impact fee credits in the amount of $10,060,515.96 for their use in accordance with our impact fee ordinance and consistent with the approved DCA. I have also attached a copy of the interoffice memorandum which verifies and approves the total project costs.' A copy of the September 2, 2008 memorandum is attached hereto as Exhibit 4. 22. Pursuant to paragraph 8(a) of the Agreement, GL Homes has earned the $10,060,515.96 Road Impact Fee Credit Amount. 1 The July 23, 2008 interoffice memorandum is attached to the September 2, 2008 correspondence and it is the same document referred to in paragraph 18 of this Complaint. 5 Agenda Item No. 1667 July 28, 2009 Page 8 of 56 23. Moreover, pursuant to paragraph 12 and 20.C. of the Agreement, and the Certificate of Adequacy, GL Homes' residential development is vested with traffic concurrency for 850 residential units through May 9, 2016. 24. Defendant is unconditionally obligated to reimburse GL Homes for the $10,060,515.96 earned Road Impact Fee Credit Amount as of October 1, 2008 under paragraph 21.F. of the Agreement, which provides: Notwithstanding that an Event of Default may have occurred, [GL Homesl shall nevertheless be entitled to reimbursement from the County on or before October 1, 2008, and the County shall be obligated to reimburse fGL Homes] on that date, for all amounts expended or incurred by fGL Homes] under this Agreement in excess of the amount of Road Impact Fee Credit Amount utilized by iGL Homes]; Such reimbursement obligation of the County shall survive the completion and acceptance of the Project by the County or earlier termination of this Agreement. Exhibit 1, %21.F. (emphasis added). 25. Pursuant to the Agreement as outlined above, as of October 1, 2008, GL Homes is entitled to receive, and Defendant is obligated to pay GL Homes all amounts in excess of the Road Impact Fee Credit Amount utilized by GL Homes. GL Homes has not utilized any of the Road Impact Fee Credit Amount. Because GL Homes has not used any of the Road Impact Fee Credit Amount, said payment in the amount of $10,060,515.96 was due to GL Homes as of October 1, 2008. See Exhibit 1, ¶ 21.F. 26. Despite accepting GL Homes' completion of the Project, Defendant has refused to reimburse GL Homes for any of the $10,060,515.96 eamed Road Impact Fee Credit Amount. 27. On or about October 21, 2008, GL Homes delivered a letter to the Collier County Manager, Jim Mudd. The October 21, 2008 letter demanded payment from Defendant for the $10,060,515.96 in verified and approved costs. 0 Agenda Item No. 1687 July 28, 2009 Page 9 of 56 28. Defendant refused to perform, and failed to reimburse GL Homes in accordance with the Agreement. As a result, GL Homes delivered another letter to Defendant on December 9, 2008. A copy of the December 9, 2008 letter is attached as Exhibit 5. The December 9, 2008 letter again put Defendant on notice that it is in default under the Agreement. The December 9, 2008 letter demanded payment of the $10,060,515.96 within thirty days. 29. Despite GL Homes providing Defendant with written notices of default, Defendant has still failed to reimburse GL Homes and it remains in default under the Agreement. 30. Because of Defendant's refusal to reimburse GL Homes, GL Homes is entitled to prejudgment interest as of October 1, 2008. See Exhibit 1, ¶ 21.F. 31. GL Homes has retained the law firm of Holland & Knight, LLP to represent it in this action and has agreed to pay its counsel a reasonable fee for services herein, together with all costs and expenses of this litigation. 32. All conditions precedent to the commencement of this action, if any, have been satisfied, discharged, or waived. Count I - Breach of Contract 33. This is a cause of action by GL Homes against Defendant for breach of contract. 34. GL Homes realleges and reavers each allegation contained in Paragraph 6 through 32 of this Complaint, as if fully set forth herein. 35. As more particularly described above, GL Homes and Defendant entered a binding Agreement. 7 Agenda Item No. 1687 July 28, 2009 Page 10 of 56 36. GL Homes performed its obligations under the Agreement. 37. GL Homes is not in default of its obligations under the Agreement. 38. Defendant accepted GL Homes' performance, and is obligated to compensate GL Homes for its performance under the Agreement. 39. Defendant, despite demands from GL Homes, has failed to reimburse GL Homes for its costs associated with the Project. 40. Defendant is, therefore, in breach of the Agreement. 41. As a result of Defendant's breach of the Agreement, GL Homes has suffered and continues to suffer damages. WHEREFORE, Plaintiff GL Homes respectfully requests that this Court enter judgment against Defendant for compensatory damages, prejudgment interest, and such other further relief as the Court may deem just and proper. Dated: March 18, 2009. # 6151772 v1 HOLLAND & KNIGHT LLP Attorneys for GL Homes of Naples Associates Il, Ltd. One East Broward Boulevard, Suite 1300 Fort Lauderdale, FL 33301 Tel: (954) 525 -1000 Fax: (954) 463 -2030 4FR0ard C. utchi n Florida Bar No. John R. Chapman Florida Bar No. 0047682 709360 Agenda Item No. 1687 July 28, 2009 Page 11 of 56 Betz; 3836356 OR: 4034 PG: 1820 UC "1 354.01 C1111 " TH 10111 UCOVI0 Is the 011ICILL 11C0101 of CO6t311 CDYITT, 1L Cetill 11.41 i1T110111R ITN N)DR 0513111116 at 12191 HIM L 11001, 01111 Irf 7211 10 A AMENDED AND RESTATED STANDARD FORM COLLIER COUNTY CONTRIBUTION AGREEMENT FOR ROAD IMPACT FEE CREDITS No. _ (Amending and Restating No. 2002- 009 -TR -GL Homes) THIS AMENDED AND RESTATED CONT B�AGREEMENT [ "Agreement"] is made and entered into this 0 _ of A 2006, by and between G.L. HOMES OF NAPLES ASSOCIATES II, LTD., FLORIDA LIMITED PARTNERSHIP, duly organized and authorized to conduct business in the State of Florida [hereinafter referred to herein as "Developer "], by and through Alan Fant, Vice President of G.L. Homes of Naples II Corporation, a Florida corporation, and the General Partner of G_L Homes of Naples Associates 11, Ltd., a Florida Limited Partnership, who is duly authorized to execute this Amended and Restated Standard Form Collier County Contribution Agreement for Road Impact Fee Credits, and THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA AS THE GOVERNING BODY OF COLLIER COUNTY hereinafter referred to as "County." RECITALS: WHEREAS, on December 17, 2002, Developer and County entered into that certain Standard Form Collier County Contribution Agreement for Road Impact Fees (No. 2002 - 009 -TR -GL Homes), hereinafter referred to as the "Original Agreement'; and WHEREAS, for reasons beyond the reasonable control of both the Developer and County, the roadway improvements contemplated in the Original Agreement have yet to commence in accordance with the phasing schedule established therein "; and WHEREAS, based on the delays associated with the commencement of construction outlined in the Original Agreement, Developer and County are desirous of entering into this Amended and Restated Contribution Agreement which grants cash and credits for road impact fees and certain vesting rights for road concurency, in exchange for the Developer's contribution of advanced off -site roadway construction improvements consisting of the extension of Logan Boulevard as a two (2) lane divided roadway between Vanderbilt Beach Road and Immokalee Road [hereinafter described as the "Project "] as set forth in a conceptual description and graphic rendering attached hereto in Composite Exhibit "A" and "A -1 "; and Agenda Item No. 1687 July 28, 2009 Page 12 of 56 OR. 4034 PG; 1821 10A WHEREAS, Developer is the fee owner of certain lands, (hereinafter referred to as "Terafina "), described and graphically rendered in Composite Exhibit "B" and "B- ill, artacbed hereto and incorporated herein by reference, which upon development in the near fixture will be subject to the imposition of road impact fees; and WHEREAS, the parties acknowledge that the valuation of eligible anticipated construction to the County's transportation network is based upon a Preliminary Estimate of Probable Costs by a Professional Engineer of the Project attached hereto as Exhibit -C "; and WHEREAS, the parties agree that Developer shall submit for County approval a Final Certified Estimate of Probable Costs to design and construct the Project prepared by it Professional Engineer subsequent to the date of this Agreement and prior to the issuance of right -of -way use permit by the County in connection with the Project; and WHEREAS, the parties acknowledge, in the case of contributions of construction or installation of improvements, the value of the developer's proposed contribution shall be adjusted upon completion of the construction to reflect the actual cost of construction or installation of improvements contributed by developer, but in any event not to exceed fifteen [15 %] percent of the approved Final Certified Estimate of Probable Costs unless such amounts in excess of said fifteen [15 %] arc caused by changes or modifications to the Project requested by the County from tuna to time after the County has approved and accepted the Final Certified Estimate of Probable Costs of the Project; and WHEREAS, the parties acknowledge that it is in the best interest of the County for the Developer to design and construct the Project; and WHEREAS, the Transportation Administrator will recommend to the Board of County Commissioners that the Proposed Plan as defined in the lmpact Fee Ordinance for donations, credits, cash and contributions as set forth in this Agreement is in conformity with contemplated improvements and additions to the County's transportation network; and WHEREAS, after reasoned consideration by the Collier County Board of County Commissioners, [hereinafter "Board"], the Board has authorized the County Attorney to prepare this Developer Contribution Agreement ["DCA "] upon the Board Ending that a. The subject Proposed Plan is in conformity with the contemplated improvements and additions to the County's transportation system; b. Such Proposed Plan, viewed in conjunction with other existing or proposed plans, including those from other developers, will not adversely impact the cash flow or liquidity of the County's road impact The trust account in such a way as to fiustrate or interfere with other planned or ongoing growth Agenda Item No. 16137 July 28, 2009 Page 13 of 56' OR: 4034 PG: 1822 10A necessitated capital improvements and additions to the County's transportation system; c. The Proposed Plan is consistent with the public interest; and d. The proposed time schedule for completion of the Proposed Plan is consistent with or is projected to be consistent with the most recently adopted five -year capital improvement program for the County's transportation system; and WHEREAS, the Board of County Commissioners finds that the contributions contemplated by this Contribution Agreement are consistent with the County's existing comprehensive plan; and WHEREAS, pursuant to the Terafina PUD Ordinance No. 2004 — 15 it was agreed, inter ufia, that: A. The road impact fee shall be as set forth in the Consolidated Impact Fee Ordinance No.01 -13, or successor ordinance. Said fees shall be paid at the time building permits are issued or as provided for by the Adequate Public Facilities Ordinance. B. Internal access improvements shall not be subject to impact fee credits and shall be in place before any certificates of occupancy are issued. C. The Teraftna PUD is vested for traffic concurrency associated with the executed Standard Form Collier County Contribution Agrecrnent for Road Impact Fee Credits (No. 2002- 009 -TR -GL Homes) dated December 17, 2002. WHEREAS, it is anticipated that the time for band -out of the Terafm Development will exceed five [5) years for concurrency purposes, and the parties agree that good cause exists for an automatic five [5] year extension of the initial five [5] year vesting period provided, Developer substantially adheres to the Phasing Schedule as determined by the Transportation Division Administrator [A copy of the Phasing Schedule is attached hereto in Exhibit "D) and agreed to thereby by the County]; and WHEREAS, this DCA shall not be construed or characterized as a development agreement under the Florida Local Government Development Agreement Act; and WHEREAS, the parties acknowledge that all construction cost estimates shall be based upon, and all construction plans, specifications and conveyances shall be in conformity with, the road construction standards and procedures of the County and shall be first approved by the Collier County 'Transportation Administrator prior to commencement of construction; and Agenda Item No. 16B7 July 28, 2009 Page 14 of 56 OR: 4034 PG: 1823 WHEREAS, Developer acknowledges and agrees that it has felt power and authority to cause the construction or installation of the subject contribution and themaficr execute any and all documentation necessary to convey or cause to be conveyed the contribution to the County in conformance with the County's transportation standards, procedures, ordinances and regulations; and AREAS, Developer agrees and acknowledges that it has frill power and authority to cause the construction or installation of the subject contribution and thereafter execute any and all documentation necessary to convey or cause to be conveyed the contribution to the County in conformance with the County's transportation standards, procedures, ordinances and regulations; and WHEREAS, Developer agrees and acknowledges that it shall not proceed to install and construct any portion of the subject contribution until Developer's legal counsel shall advise the County Attorney in writing that the Developer has secured a performance bond or other surety in the amount of the Final Certified Estimate of Probable Costs plus a 15% contingency and Developer shall submit such bond or surety for approval by the County prior to the time of Developer's application for the right -of- way use permit; and WI TNESSETH-, NOW, THEREFORE, in consideration of Ten Dollars (510.00) and other good and valuable consideration exchanged amongst the parties, and in consideration of the covenants contained above and herein, and the fact that all of the above recitals are true and correct and shall be fully incorporated herein and Than part of the basis for this Agreement, the parties agree as follows' The projected road impact fees needed for the constriction of 650 residential units of the Temfina Development is estimated to be Seven Million Five Hundred Twenty Eight Thousand Eight Hundred Seventy Five Dollars ($7,528,975.00]. 2. Prior to the commencement of any construction work in connection with the Project ("Construction Work"), Developer shall deliver the following items to the appropriate governmental entity for said governmental entity's review and approval: A. For purposes of establishing the amount of the "Surety" (as hereinafter defined) and the "Road Impact Fee Credit Amount" (as hereinafter defined), a Final Certified Estimate of Probable Costs prepared by Developer's design engineer ( "Professional Engineer") which shall set forth the estimated cost (including, without limitation, the cost of any and all labor, materials, design, testing, filing fees, permit fees, mitigation costs, construction and engineering inspection services, and any and all other ancillary costs and expenses) of Agenda Item No. 16137 July 28, 2009 Page 15 of 56 OR: 4034 PG: 1624 10 A, construction necessary to complete the Project in accordance with the "Plans and Specifications" (as hereinafter defined). After the Final Certified Estimate of Probable Costs has been submitted to and approved by the County, then the same shall be referred to herein as the "Final Certified Estimate of Probable Costs." The Final Certified Estimate of Probable Costs shall not be subject to change or modification without the written consent of both Developer and the County. The Final Certified Estimate of Probable Costs shall not include any of the costs, fees or other monies paid and/or incurred by or on behalf of the County under paragraph 7 of this Agreement B. The Professional Engineer shall prepare the plans and specifications for the engineering and site development work (as amended from time to time, the "Plans and Specifications "j for the Project. After the Plans and Specifications have been submitted to and approved by the appropriate governmental entities, Developer shall not change, revise or modify the Plans and Specifications without the prior written consent of said governmental entities. C. On or before the date on which Developer submits its application for the right -of -way use permit, Developer shall procure, at its election, either a bond or letter of credit ( "Surety") in favor of the County in an amount equal to one hundred -fifteen percent (115 %) of the Final Certified Estimate of Probable Costs, 3. The County shall have the right to draw against the Surety only after an "Event of Default" (as hereinafter defined) has occurred and remains continuing beyond the "Cure Period" (as hereinafter defined); provided, however, notwithstanding anything to the contrary contained in this Agreement, the County must provide Developer with written notice of its intent to draw against the Surety (including the amount to be drawn) not less than tcn (10) days prior to making such draw, and the County shall only be permitted to use the drawn Surety funds towards the completion of the Project in accordance with the terms of this Agreement. 4. Developer shall have the right to (i) once per quarter reduce the Surety in an amount equal to the amount of funds expended by Developer in connection with the Project during the immediately preceding quarter, and (ii) terminate and extinguish the Surety on the date on which the Project has been completed and accepted by the County. 5. Developer shall not have any obligation to either increase the amount of the Surety to an amount greater than One Hundred Fifteen Percent (115 %) of the Final Certified Estimate of Probable Costs nor replace any amount of the Surety after any draw against (by the County) or reduction of (by Developer) the same. 6. Developer shall deliver to County, simultaneously with the execution of this Agreement, an attorney's opinion letter attached hereto as Exhibit -E" stating: (a) Developer is an entity duly formed, validly existing and authorized to conduct its business in the State of Florida; (ii) Developer has the requisite Agenda Item No. 1667 July 28, 2009 Page 16 of 56 OR: 4034 PG: 1625 10A authority (i) to enter into and execute this Agreement; (ii) to perform under and in accordance with the terms and conditions of this Agreement; (iii) procure financing in the amount of the Surety. The County acknowledges that it has acquired all of the right- of-way necessary for the construction and completion of the Project, inclusive of all embankment easements, temporary construction easements, drainage easements, retention areas as well as all other types of easements and areas acceptable to the County, through eminent domain or any other method of acquisition. Any finds paid by Developer to the County to cover the County's costs associated with such acquisition, including, without limitation, the preparation of alternative alignments, legal descriptions, appraisals, and acquisition funding shall be reimbursed to Developer by the County no later than October I, 2006_ The County's obligation to reimburse Developer under this paragraph shall survive the completion of the Project and acceptance of the same or earlier termination of this Agreement. S. The amount of road impact fee credits to which Developer shall be entitled to under this Agreement (collectively, "Road Impact Fee Credit Amount") shall be equal to the amount of the Final Certified Estimate of Probable Costs as amended from time to time. The Road Impact Fee Credit Amount shall be tamed and available for use by Developer immediately upon (a) Developer expending any monies towards the design, construction and ultimata completion of the Project with the amount of Road Impact Fee Credit Amount earned being equal to the amount expended by Developer from time to time, and/or (b) the County drawing against the Surety with the amount of Road Impact Fee Credit Amount earned being equal to the amount of monies drawn by the County against the Surety from time to time, and/or (c) the payment of any and ELU monies by Developer to the County in the event the County is unable to collect on the Surety and the County seeks and receives payment from Developer in lieu of the Surety. The Road Impact Fee Credit Amount once earned by Developer shall not be subject to forfeiture, reduction, recission or diminishment regardless of whether or not Developer commits an Event of Default. This paragraph shall survive the complexion of the Project and acceptance of the same by the County or earlier termination of this Agreement. 9. Until such time as the Project is constructed, completed and tendered to the County for acceptance, Developer shall indemnify and hold harmless the County from all liability directly arising from the construction of the Project and shall furnish adequate liability insurance in the amount set forth in the County Risk Management Guidelines as attached hereto as Exhibit "F ". Such insurance shall be in addition to the Surety posted for the completion of the road, 10. in the event the actual cost of construction of the Project is less than the Final Certified Estimate of Probable Costs, Developer shall be responsible for reimbursing the County for all road impact fees utilized above the actual cost of 6 Agenda Item No. 1687 July 28, 2009 Page 17 of 56 OR: 4034 PG: 1626 10 construction. Any over- payment of credits by the County shall be reimbursed to the County within ninety [901 days after the County's demand for the same after completion of the Project, if it determines more road impact fee credits were utilized than the Developer was entitled to receive. Developer therefore shall pay all the road impact fees above the actual cost of construction of the Project. 11. Upon acceptance of the Project by the County, if the actual cost of completing the Project exceeds the actual amount of Road Impact Fee Credit Amount utilized by Developer, then on or before October 1, 2008, the County shall be obligated to reimburse Developer an amount equal to the actual cost of completing the Project less the actual amount of Road Impact Fee Credit Amount utilized by Developer. Therefore, the County shall reimburse Developer for all amounts expended by Developer in completing the Project above the actual amount of Road Impact Fee Credit Amount utilized by Developer. 'bus paragraph shall survive the completion of the Project and acceptance of the same by the County or the earlier termination of this Agreement. 12, In exchange for the advanced construction of the Project, Developer shall be vested with 950 residential units in and for the Terafina Development as the construction of the Project shall be deemed a prepayment of road impact fees and the Developer shall be vested in these units for a minimum of five [5] years after the execution of this Agreement. It is anticipated that the time for build out of the Terafina Development will exceed five [51 years for traffic concurrency purposes. The parties agree that good cause exists for an automatic five (5) year extension of the initial five (5) year vesting period provided Developer substantially adheres to the Phasing Schedule attached hereto in Exhibit "D" which phasing schedule the County has agreed to. The additional five (5) year vesting period shall commence on the date on which the initial five (5) year vesting period expires. If the total road impact fees needed for the Terafina Development exceeds the cost of the Project, Developer shall be responsible for paying the difference at the rate then in effect. Said vesting shall be evidenced in a duly authorized Certificate of Public Facilities Adequacy issued by the County. Developer shall apply for the Certificate of Public Facilities Adequacy by way of written letter and a copy of this Agreement fully executed and the County shall issue such certificate based on the same within thirty [301 days of the execution of this Agreement or as soon as possible. This paragraph shall survive the completion of the Project and acceptance of the same by the County or the earlier termination of this Agreement, 13. The County shall utilize its best efforts to review and approve, and use its best efforts to cause other governmental entities to review and approve, all plans, specifications, applications and/or other submittals delivered to the County and other governmental entities within ten (10) business days after the same has been submitted to the County and such other governmental entities for review and approval. Agenda Item No. 1687 July 28, 2009 Page 18 of 56 OR: 4034 PG: 1821 10A 14. The County shall utilize its best efforts to assist and cooperate with Developer in the application, procurement and issuance of any and all permits, inspections and approvals necessary to construct and complete the Project in a prompt and timely manner. 15. The County shall join in, and the County shall use its best efforts to cause other governmental entities to join in, any and all applications, submittals and such other items which are necessary to construct and complete the Project. 16. The total amount of Road Impact Fee Credit Amount earned by Developer under this Agreement shall be evidenced by a Road Impact Fee Credit Ledger. [Attached hereto as Exhibit "G "). The County shall on a current basis maintain on the Road Impact Fee Credit Ledger written evidence of the Road Impact Fee Credit Amount earned, used by and available to Developer until such time the Road Impact Fee Credit Ledger reflects a zero balance. 17. Developer shall the right to rely upon the Road Impact Fee Credit Ledger for confirmation of the Road Impact Fee Credit Amount remaining to Developer under the terms of this Agreement. 18. Developer represents, warrants and covenants to the County that the following are true and correct in all material respects as of the date of this Agreement and shall be true and correct in all material respects until the completion and acceptance of the Project: A. Developer is a limited pattnersWp duly formed and validly existing in the State of Florida and has the full right and lawful authority to enter into this Agreement. B. The execution, delivery and performance of this Agreement by Developer has been duly authorized and no consent of any other person or entity to such execution, delivery and performance is required to render this Agreement a valid and binding instrument enforceable against Developer in accordance with its terms. C. The Project shall be constructed in accordance with the Plans and Specifications in a good and workmanlike manner free from all defects„ liens, claims and encumbrances caused by or through Developer, except as specified pursuant to or in accordance with this Agreement. D. Once Construction Work has commenced on the Project, Developer shall ensure that the construction of the Project shall not stop for a period in excess of thirty [30] consecutive days or longer, unless said stoppage is: Agenda Item No. 16137 July 28, 2009 Page 19 of 56 OR; 4034 PG; 1828 10 A, (a) Required by the County or any governmental entity and not caused by actions or omissions of Developer or its employees or agents; or (b) Caused by a "Force Majeure" as that term is generally known in the construction industry. E. Developer has not granted, and will not grant or permit to exist, any Lien (as defined below) on or against all or any portion of the Project, other than Permitted Encumbrances (as defined below). As used herein, "Lien" shall mean any security interest, mortgage, pledge, lien, hypothecation, judgment lien or similar legal process, charge, encumbrance, title retention agreement or analogous instrument or device (including, without limitation, the interest of the lessors under capitalized leases and the interest of a vendor under any conditional sale or other title retention agreement), but excluding (i) any easements, covenants or restrictions of record necessary for the construction and completion of the Project and/or acceptable to the County and (ii) liens arising from taxes or claims of suppliers, mechanics, carriers, warehouses, landlords and other like persons, where such taxes or claims are being contested in good faith by appropriate proceedings, or a surety posted therefore. As used herein, "Permitted Encumbrances" shall mean Liens approved by the County, F. The Developer represents and warrants that there are no actions at law, suits in equity or any other proceedings before any governmental agency, commission, bureau, or other arbitration proceedings against or affecting the Developer that if adversely determined would materially and adversely affect the Developer's ability to complete the Project or would adversely affect the Developer's ability to execute and deliver, and perform its obligations under, this Agreement. 19. In the event of a thirty [30] day stoppage of work on the construction of the Project except as described above in paragraph 19, the County shall have the right to call upon the Surety for any necessary draw, pursuant to and in accordance with Paragraph 3 herein, to continue or complete the Project. If the Surety fails to immediately provide necessary funds to the County for the County to continue or complete the Project, the County may take any and all legal action available to it, including declaring Developer in default of this Agreement (subject to applicable notice and cure provisions), and the County may take all necessary steps to complete the Project and secure "Reimbursable Costs" The term "Reimbursable Costs" as used in and throughout this Agreement shall mean the actual cost to complete the Project in accordance with the Plaits and Specifications for the Project as they exist at the time of default or Event of Default by Developer larder this Agreement that causes Developer's removal from, and the County taking over and completing, the Project; it being acknowledged and agreed by the County that except only for Reimbursable Costs, Developer shall not be liable whatsoever for any indirect, consequential or punitive damages of any kind or nature or any other costs, compensation Agenda Item No. 16137 July 28, 2009 Page 20 of 56 OR; 1034 PG; 1829 10A and/or expenses whatsoever for any default or Event of Default under this Agreement. Consequential damages shall mean: losses that do not flow directly and immediately from an injurious act, but that result indirectly from the act. 20. The County represents, warrants and covenants to Developer that the following are true and correct in all material respects as of the date of this Agreement and shall be true and correct in al! material respects until the completion and acceptance of the Project: A. The County is a corporate body politic duly formed and validly existing in the State of Florida and has the full right and lawful authority to enter into this Agreement. B. The execution, delivery and performance of this Agreement by the County has been duly authorized and no consent of any other person or entity to such execution, delivery and performance is required to reader this Agreement a valid and binding instrument enforceable against the County in accordance with its terms and conditions. C. The County shall (i) issue the Road Impact Fee Credit Amount to Developer, (ii) vest the Terafina Development with traffic concurrcncy for 850 residential units for the initial five [5] year vesting period and the five [5] year extension vesting period pursuant to the terms set forth in this Agreement, (iii) issue the Certificate of Public Facilities Adequacy for the initial five [5] year vesting period and the five [5] year extension vesting period pursuant to the terms set forth in this Agreement; all of the foregoing in accordance with and at the times required by the terms and conditions of this Agreement. D. The County shall allow Developers to use, allocate, assign and apply all or any portion of Road Impact Fee Credit Amount duty earned hereunder in accordance with the Collier County Consolidated Impact Fee Ordinance, and public facility adequacy Ordinance as amended consistent with the terms and conditions for any certifications issued fmrn time to time. 21. The occurrence of any of the following events shall be deemed to be an "Event of Default ": A. A breach by Developer to comply with any of the terms or conditions of this Agreement by which Developer is to comply. B A breach by The County to comply with any of the terms or conditions of this Agreement by which the County is to comply. C. Notwithstanding anything to the contrary contained in this Agreement, an Event of Default shall not be deemed to have occurred unless and until the party seeking to declare an Event of Default ("Non - Defaulting Party'/ has 10 Agenda Item No. 16B7 July 28, 2009 Page 21 of 56 OR: 4034 PG; 1830 10A provided the other party (" Defaulting Party") with written notice ( "Default Notice ") of the default ("Default") commitment by the Defaulting Party in specific detail and the Defaulting Party has failed to cure said Default within thirty (30) days after receipt of the Default Notice ( "Cure Period "); provided, however, if the Default is one not reasonably able to be cured within the Cure Period (the term "reasonable" shall be defined by mutual agreement), then the Cure Period shall be extended for an additional time period as may be reasonably necessary to cute the Default provided that the Defaulting Patty commences to cure the Default within the Cure Period and continues in good faith to diligently cure the Default to completion. D. If Developer commits an Event of Default prior to Developer posting the Surety, then the remedy of the County shall be: (i) the right to terminate this Agreement, (ii) the right to terminate the vesting rights of the Terafina Development granted in and under this Agreement, and (iii) the right to require Developer to assign all of its right, title and interest in and to all plans, specifications, documents, applications and permits that have been prepared, submitted and/or issued to or on behalf of Developer. E. If Developer commits an Event of Default subsequent to Developer posting the Surety, then the sole and exclusive remedy of the County shall be the right: (i) to require Developer to assign to the County all of its right, title and interest in and to all plans, specifications, documents, applications and permits that have been prepared, submitted and/or issued to or on behalf of Developer, (ii) to require Developer to terminate any and all Construction Work, (iii) to remove Developer from the construction site of the Project, (iv) to complete the Project in accordance with the terms and conditions of this Agreement using the Surety, (v) utilize its Alternative Dispute Resolution procedure, [attached hereto as Exhibit "H "], (vi) pursue such other legal remedy it determines is appropriate to recover Reimbursable Costs: it being acknowledged and agreed by the County that except only for Reimbursable Costs, Developer shall not be liable whatsoever for any indirect, consequential or punitive damages of any kind or nature or any other costs, compensation and/or expenses whatsoever for any default or Event of Default under this Agreement. Consequential damages shall mean: losses that do not flow directly and immediately from an injurious act, but that result indirectly from the act. F. Notwithstanding that an Event of Default may have occurred, Developer shall nevertheless be entitled to reimbursement from the County on or before October I, 2008, and the County shall be obligated to reimburse Developer on that date, for all amounts expended or incurred by Developer under this Agreement in excess of the amount of Road Impact Fee Credit Amount utilized m Agenda Item No. 16137 July 28, 2009 Page 22 of 56 OR: 4034 PG: 1831 l0A by Developer. Such reimbursement obligation of the County shall survive the completion and acceptance of the Project by the County or earlier termination of this Agreement. G. If after posting the Surety Developer commits an Event of Default, then the number of residential units vested for traffic concurrency purposes in the Terafina Development shall be equal to the number of building permits that the sum of the following calculations could pay for with respect to road impact fees only: [1] the actual amount of money expended by Developer in connection with the design, permitting, construction and completion of the Project, plus [2] any amount received by the County from the Surety and/or Developer; provided however, if at, or any time subsequent to, Developer having committed an Event of Default after posting surety the sum of numbers (1 ] and [2] above equal or exceed the total amount of road impact fee payments needed for all building permits for all 850 units in the Terafina Development as set forth in paragraph one herein, then the Terafina Development shall become and remain permanently vested for 850 residential units for traffic concunrency purposes. This paragraph shall survive the completion and acceptance of the Project or the earlier termination of this Agreement_ H, In the event the County does not approve any Terafina PUD extension requested by Developer after Developer makes an administratively complete application submittal for such extension pursuant to and consistent with the provisions of Section 10.02.13.D of the Collier County Land Development Code, Developer shall timely submit an application to amend the Terafina PUD to extend the some (the "Amendment AppIication'). In such event, if., (1) the County denies the Amendment Application, or (2) the County approves the Amendment Application, and such approval (i) reduces the number of approved units compared to that currently approved, and/or (ii) imposes any condition of approval that imposes any new or significantly increases any existing obligation (financial or otherwise) on the Developer, then in any of the foregoing events, Developer shall have the right, but not the obligation, to terminate this Agreement on written notice to the County, whereupon, this Agreement shall terminate, Developer shall have no obligation to commence or complete construction of the Project, and the County shall reimburse Developer for all fees, costs, expenses and other charges actually paid by Developer directly in connection with the Project within 6 months after the date of such termination. This paragraph shall survive the termination of this Agreement. 22. Developer shall not be penalized based on a Collier County Government caused delay. 23. The failure of this Agreement to address any permit, condition, or term or restriction in the actual design. permitting and construction of the Project shall not relieve Developer or its successors of the necessity of complying with any law, ordinance, rule or regulation governing said permitting, requirements, 12 Agenda Item No. 1687 July 28, 2009 Page 23 of 56 OR: 4034 PG; 1832 1 0: conditions, or terms of restriction in the actual design, permitting and construction of the Project 24, This Agreement shall only be modified or amended by the mutual written consent of the parties hereto or by their successors in interest. 25. 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. 26. The performance and execution of this Agreement shall be carried out in conformance with the Risk Management Guidelines established by the County's Risk Management Department as more particularly described in Exhibit "F"' attached hereto and incorporated herein by reference. 27. This Agreement shall be recorded by the County in the Official Records of Collier County, Florida within fourteen (14) days after the County, by its duly authorized Chairman, executes this Agreement. A copy of the recorded document will be provided to Developer. 28. Any party to this Agreement shall have the ability to file an action for injunctive relief in the Circuit Court of Collier County to cafnrre the terms of this Agreement, said remedy being cumulative within any and all other remedies available to the parties for enforcement of this Agreement. 29. The Road Impact Fee Credit Amount identified herein; shall run with the Tmufina Development as described in Composite Exhibit "B" and us -l" and shall be reduced by the entire amount of road impact fee due on the first building permit issued thereon and each successive building permit until the Terafina Development is either completed or the Road Impact Fee Credit Amount is exhausted or otherwise no longer available. It shall be Developer's obligation to notify the County that a Road Impact Fee Credit is available, each time a building permit is applied for. If a Road Impact Fee Credit Amount is available, then the amount of Road Impact Fee Credit Amount utilized shall be deducted from the available balance as shown on the Road Impact Fee Credit Ledger. 30. An annual review and audit of performance under this Agreement shall be performed by the County to determine whether or not there has been demonstrated good faith compliance with the berms of this Agreement and to report the Road Impact Fee Credit Amount applied toward payment of road impact fees and the balance of the available unused Road Impact Fee Credit Amount. If the Collier County Board of Commissioners finds, on the basis of substantial competent evidence, that there has been a material failure to comply with the terms of this Agreement, then the default provisions as stated herein shall apply. 13 Agenda Item No. 1687 July 28, 2009 Page 24 of 56 4R; 4034 PG; 1833 10A 31. The duration or availability of the Road Impact Fee Credit Amount pursuant to this Agreement, shall not be for a period in excess of five (5) years from the date of final completion of the Project and in no event shall the availability of the Road Impact Fee Credit Amount under this Agreement exceed seven (7) years, exclusive of any moratoria, from the date of recording this Agreement in the Official Records of Collier County, Florida. For the purposes of this Agreement, the date of final completion of the Project shall be the date of acceptance of the Project by the County. An extension of the Certificate of Public Facilities Adequacy for an additional five [51 years as provided for in this Agreement shall be construed as a moratoria pursuant to Section 74 -205 F4 of the Consolidated Impact Fee Ordinance, as amended. 32. The off -site improvements, for purposes of impact fee credits, shall exclude any access improvements to the Terafina Development. W. 33. The Transportation Administrator has determined that the proposed road impact fee credit plan and vesting rights tamed and granted under this Agreement are consistent with the public interest. 34. Developer has delivered to the Office of the County Attorney an affidavit listing the names and addresses of all partners, if a partnership, and stating that the entity is in full force and effect. 35. The parties acknowledge that the contributions herein characterized as work done and property rights acquired by a highway or road agency for the improvement of a road within the boundaries of a public right of way. 36. The Road Impact Fee Credit Amount shall only be for contributions made to the transportation network to accommodate growth and which were made within the respective road impact fee district where the Project is located. 37. Developer shall keep or provide for retention of adequate records and supporting documentation which concern or reflect total project cost of construction or installation of any improvements to be contributed. This information shall be available to the County or its duly authorized agent or representative, for audit, inspection, or copying, for a minimum of five (5) years from the termination of this Agreement. 38. Any notices required or permitted to be given under this Agreement shall be in writing and shall be deemed given if delivered by hand, sent by recognized overnight courier (such as Federal Express), transmitted via facsimile transmission or mailed by certified or registered mail, return receipt requested, in a postage pre -paid envelope, and addressed as follows: As to County Norman Feder, Transportation Administrator Transportation Administration 14 Agenda Item No. 16137 July 28, 2009 Page 25 of 56 OR; 4034 PG; 1834 10A 2865 South Horseshoe Drive Naples, Florida 34104 With a copy to County's Legal Representative: David Weigel, County Attorney County-Attorney's Office 3301 East Taraiami Trail, 8"' Floor Naples, Florida 34112 With a copy to County's Road Project Representative: Jay Ahmad, Director Transportation Engineering & Construction Management 2885 South Horseshoe Drive Naples, Florida 34104. As to Developer. G.L. Homes of Naples A Corporation c/o Kevin Ratterree, vice - President 1600 Sawgrass Corporate Parkway, Suite 300 Sunrise, FL 33323 With copy to Developer's Michael S. Sheitelman, Esquire General Counsel: 1600 Sawgrass Corporate Parkway, Suite 300 Sunrise, FL 33323 With a copy to Developer's Legal Representative Mark F. Grant, Esq. Ruden, McClosky, Smith, Schuster & RusselI 200 East Broward Boulevard PO Box 1900 Fort Lauderdale, Florida 33302 Notices personally delivered or sent by overnight courier shall be deemed given on the date of receipt, notices sent via facsimile transmission shall be deemed given upon transmission and proof of receipt as evidenced by a confirmation of transmittal page and notices sent via certified mail in accordance with the foregoing shall be deemed given three (3) days after being deposited in the U.S. Mails. 39. This Agreement shall be construed and governed in accordance with laws of the State of Florida and in the event of any litigation hereunder, the venue for any such litigation, shall be in Collier County, Florida. All of the parties to this Agreement have participated fully in the negotiation and preparation hereof and, accordingly, this Agreement shall not be more strictly construed against any one of the parties hereto. 15 Agenda Item No. 16B7 July 28, 2009 Page 26 of 56 4R: 4034 PG: 1835 1QA, 40. In the event any provision of this Agreement is determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or reconstrued as such authority determines, and the remainder of this Agreement shall be construed to be in full force and effect. 41. in construing this Agreement, the singular shall be deemed to include the plural, the plural shall be deemed to include the singular and the use of any gender shall include every other gender and all captions and paragraph headings shall be discarded. 42. This Agreement constitutes the entire agreement between the parties, and supersedes any other agreement or understanding of the parties with respect to the matters herein contained. This Agreement may not be changed, altered or modified except in writing signed by the parties hereto. 43. The parties agree that in the event that any date on which performance is to occur falls on a Saturday. Sunday or state or national holiday, then the time for such performance shall be extended until the next business day thereafter occurring. 44. Developer is and shall be in the performance of all work, services and activities under this Agreement independent of the County and not an employee, agent or servant of the County. All persons engaged in any of the work or services performed pursuant to this Agreement on behalf of Developer shall at all times and in all places be subject to Developer's sole discretion and supervision and control. Developer's relationship and the relationship of its employees, agents, servants and contractors, shall in all respects, shall be independent of the County and not as employees or agents of the County. Developer does not have the power or authority to bind the County in any promise, agreement or representation other than as specifically provided in this Agreement. 45. Except when otherwise expressly stated herein to the contrary, whenever one of the parties to this Agreement is to give its consent, decision, determination or approval, such consent, decision, determination or approval shall not be unreasonably withheld, conditioned or delayed. 46. The Final Certified Estimate of Probable Costs shalt be adjusted upon completion of the Project to reflect the actual cost of construction of the Project Developer shall not be entitled to any reimbursement under this Agreement for those portions of the Final Certified Estimate of Probable Costs that exceed fifteen (15 %) percent of the approved Final Certified Estimate of Probable Costs unless such amounts in excess of said fifteen [15 %] percent are caused by changes or modifications to the Project as requested by the County from tune to time after the County has approved and accepted the Final Certified Estimate of Probable Costs ofthe Project 16 Agenda Item No. 16137 July 28, 2009 Page 27 of 56 OR; 4034 PG: 1836 10A List of Exhibits: Exhibit "A": Composite Exhibit A -The Project A— Project Description A -i — Preliminary Alignment Logan Blvd Vanderbilt Beach Road To Immokalee Road Exhibit "B ": Composite Exhibit B- The Terafina Development B- Legal Description of Telafina Development B -1 — Terafina Location Map Exhibit "C": The Preliminary Estimate of Probable Costs Exhibit "D ": Phasing Schedule Exhibit "E ": Attorney's Opinion Exhibit "F": The County Risk Management Guidelines Exhibit "G ": Road Impact Fee Credit Ledger Exhibit "H ": Alternative Dispute Resolution Procedures 17 0 Agenda Item No. 16137 July 28, 2009 Page 28 of 56 OR: 4034 PG: 1837 10A IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their appropriate officials, as of the dam first above written. AS TO CRWIfTY: DWIUNTE. aR Clerk ufy s - Clmfttist as to Cha I r mail '6 A : ST PER, WE Egi.� /I .. A 4-'1 7OA L Print Naine. Q�A'W ROOM, 19 BOARD OF COUNTY COMMISIONERS COLLIER COUNTY, FL, By: Frank Halas, Chairman G.L. HOMO OF NAPLES ASSOCIATES 11, LTD., A FLORIDA LIMITED PARTNERSHIP By. G.L. Homes of Naples II Corporation A Florida Corporation, its General Partner Ile By: Name: PAN 1— Tide-.AC'z iokead� Date:— Agenda Item No. 16137 July 28, 2009 Page 29 of 56 OR•, 9034 PG; 183{8 1,0r STATE OF FLORIDA COUNTY OF BROWARD I HEREBY CERTIFY that on this day, before me, an officer duly authorised in the State aforesaid and in the County aforesaid to take acknowledgements, the foregoing instrument was acknowledged before me by Alan Rant , the Vice Prmiderrf of G.L. Homes of Naples II, a Florida Corporation, freely and voluntarily under authority duly vested in His/her by said corporation and that the seal affixed thereto is the true corporate seal of said corporation. He/she is oMnally known to me or who has produced as identification. WITNESS my hand and official seal in the County and State last aforesaid this Y*j day of MO)f , 2006. A=-x legal oiency: Assistant County Attorney Kdterafi na/dea2ndversion. krO l 0906 !i•] c� NOTARY PUBLIC Name: er'nq 13 JFArr-'8f' (Typo or Print) My Commission Expires! C; " ",%, Anna B. Ernst . Commlaelort 0 W454514 Exp m July 25, 2009 cs e..,.*tin.- ..�..rs rooars7ot� Agenda Item'No. 16137 July 28, 2009 Page 30 of 56 OR; 4034 PG; 1839 10A EXH181i A Project Dewiption Tina Project is a two lane roadway extending southerly Bom lmmokalce Road to Vwukrbilt Seacb Road as an extension of Logan BoulaVW%L !f; Y&R= 7 -.Twl q - In � "77 .k... -, .. .......... Agenda Item No. 16137 July 28, 2009 Page 32 of 56 OR; 4034 PG: 1841 10A FX III BIT B Legal Description of Teraftna Development: :kIl of Section 16. Twxnship 48 South. Range 26 East. Collier County, Flurida. excepting the %Vest 80' thcreelf pursuant to the recordation oi' that ecrinin Warrant + - Decd rt.-corded in Official Rtxord Book 3052 Page 750. r C c 0 Agenda item No. 16137 July 28; 2009 Page 33 of 56 OR: 4034 PG; 18421 0 A Agenda Item No. 1687 July 28, 2009 Page 34 of 56 OR: 4034 PG: 1843 10 A EXHIBIT C Preliminary Estimate of Probable Cost Design $ 890,000 Construction $ 7,650,000 Construction Engineering/Inspection $ 450.000 Total $ 8,990.000 Agenda Item No. 1687 July 28, 2009 Page 35 of 56 OR: 4434 PG: 1844 EXHIBIT D Phasing Schedule: Year 1 (by June 1, 2006) — Bid, negotiate and finalize construction contract. Conunence construction of Logan Blvd. from Immokalee Road to its present terminus north of Vanderbilt Beach Road. Year 2 (by May 1, 2007) -- Complete construction of Logan Blvd. from Immokalee Road to its present terminus north of Vanderbilt Beach Road, Agenda Item No. 16137 July 28, 2009 Page 36 of 56 OR: 4034 PG; 1845 11 2W EAST RRONARD 50U.EVARD 0 7 1 SURE Iwo Rud en FORT LAUDERDALE. FLORIDA 33301 '' POST OFFICE McClosky FORT LAUDERDALE, FLORIDA 33302 ") 527422D FAX (04) 333422a CAROLXXLM0RUDE N COM March 2 S, 2006 VIA FEDERAL EXPMS Michael S. Sheitelmsn. Esq. G.L. Homes of Florida 1600 Sawgrass Corporate Parkway Suite 300 Sunrise, FL 33323 Re; G.Z. Naples u — Tcrcrf',,q Dear Michael: Eiclosed please find the executed opinion for the DCA traffic concurrency. Please do not hesitate to contact me should you have any questions. /'Vory truly yap-%, ' 4 Carol D. A Certified Paralegal Real Estate Specialist CDH/rm encL EXHIBIT S F7L'17123A2A RUDEN, McCLOSKY, SMITH, SCHUSTER & RUSSELL, P.A. CA7ACAs . R.IAU*I WALF +AWWI - u&mm • an4woo • roa m. LUCK • SA4410TA • ST. MFJUAA rS. • MWAMASB • TA PA • WM FMM IFACM ,IIRuden Mcciosky March 28, 2006 Board of County Commissioners of Collier County Naples, Florida Agenda Item No. 16137 July 28, 2009 Page 37 of 56 OR. 4434 PG; 1846 10 A zoo EAST LROWARD BOULEVARD FORT LAUDERDALE FLORIDA 33301 POST OFFICE BOX 1900 FORT U.UDEROALE FLORIDA 33302 t95t) 527 -2404 FAX: (9541 333 -4004 Mwk.GnrWRUREN.00M Re: Amended and Restated Standard Form Collier County Contribution Agreement for Road Impact Fee Credits by and between the G.L. $owes of Naples Associates H, Ltd., a Florida limited partnership, and the Board of County Commissioners of Collier County, Florida, as the Govmaing Body of Collier County (thc "Contribution Agreement") Ladies andlor Gentlemen: We are counsel for G.L. Homes of Naples Associates II, Ltd., a Florida limited partnership (the `DevelopeeD, and G.L. Homes of Naples II Corporation, a Florida corporation (the "Corporation", the sole general partner of Developer. As such, you have requested our opinion in connection with the Contribution Agreement In rendering this opinion, we have reviewed the Contribution Agreement, the Agreement of Limited Partnership of Developer, and such other and further documents as deemed relevant (collectively, the "Documents'; have made such investigation of law; and have discussed with Developer such questions of fact as we have deemed nccewary or appropriate for the opinion hereinafter expressed We have received from, and under seal of the Secretary of State of the State of Florida (the "Secretary of State') certificates that Developer is a limited parto rship and that the Corporation is a corporation, each organized under the laws of the State of Florida and that their respective status is active. in rendering the opinion hereinafter expressed we are: (a) relying upon the foregoing certificates under seal of the Secretary of State; and (b) assuming that the instruments as certified by the Secretary of State as aforesaid are true and complete copies of the originals thereof and that same have not been modified unless and except as reflected by such certified copies of such instruments. We have no knowledge of any inaccuracies contained in the foregoing certificates under seal of the Secretary of State. In rendering this opinion, we are further assuming that all copies of all instruments examined by us are t=ree and correct copies of FrU1712185:1 Agenda Item No. 1687 July 28, 2009 Page 38 of 56 OR: 4034 PG: 1847 the originals thereof, the Ruthcnticiry of all documents, if any, submitted to us as originals and that all signatures are genuine other than the signatures of the Developer on the Contribution Agreement which we know to be genuine. Based upon our examination of the Documents, and subject to the assumptions, limitations, and qualifications set forth herein, we are of the opinion that: 1. Developer is an entity duly organized, validly existing, and in good standing under the laws of the State of Florida and has all requisite power to carry on its business as now being conducted. 2. The execution, delivery, and performance of all terms and conditions of the Contribution Agreement, specifically including, without limitation, procurement of the "Surety" (as defined in the Contribution Agreement), by Developer has been duly authorized by all necessary actions (corporate, partnership, or otherwise) and does not require the consent or approval of any persons whose consent has not been obtained. -- Our opinion is expressly qualified in that it is given on coudition that Collier County's counsel has not given Collier County any written advice in connection with this transaction that is contrary to any opinion expressed herein. We are members of the .Bar of the State of Florida and; accordingly, express no opinion with respect to the laws of any other jurisdiction, other than those of the laws of the State of Florida and the laws of the United States. This opinion is rendered as of the date hereof and we undertake no obligation to advise you of any change in any Fnalters stated herein. only the persons addressed above are entitled to rely upon or to assert any legal rights created by this opinion letter. This letter may not be used or relied upon -by any other person for any purpose whatsoever other than in connection with regulatory requirements or in response to a court order, without our prior written consent. Very truly yours, RUDEN, McCLOSKY, SMITH, S STER & RUSSEI..,T., P.A. F71.:171210 5:1 Agenda Item No. 16137 July 28, 2009 Page 39 of 56 OR: 4034 PG: 1848 10 AFFIDAVIT STATE OF FLORIDA COUNTY OF BROWARD ss: BEFORE ME, the undersigned Notary Public, personally appeared N. Maria Menendez (ttle -At fiant'), to me wed known to be the person who made and subscribed the following AffklwAt, who, upon being first by me duty sworn on oath, deposed and said as follows: 1. Affiant Is the Vice President of G.L. HOMES OF NAPLES 11 CORPORATION, a Florida corporation, the We general partner of G.L. HOMES OF NAPLES ASSOCIATES If, LTD., a Fiorlde limited partnership (the 'Partnership") and as such has personal krwwdedge of the business and affairs of said Partnamhlp and of oil facts slated hereunder. 2. The sole general partner of the Partnership is G.L. HOMES OF NAPLES it CORPORATION, a Florida corporation (the 'Corporation"), having an address of 1600 Sawgrass Corporate Parkway, Suite 300, Sunrise, Fkxide 33323. (a) The sole shareholder of the Corporation Is Q.L. HOMES OF FLORIDA HOLDING CORPORATION, a Florida aarporelon ( "Florida Holding "), having an address of 1600 Sawgrass Corporate Parkway, Suite 300, SUnrlse, Florida 33323. (b) The sole shareholder of Flrnide Holding Is Itzhak Ezrat .Waving an address of 1600 Sawgrass Corporale Parkway, Suite 300. Surirlse, Florida 33323. 3. The limited partners of the Partnership are: (a) G.L. HOMES OF FLORIDA LIMITED CORPORATION, a Florida corporation ('Florida linked "), havinp an address of 1600 Sawgrass Corporate Parkway, Suite 300, Sunrise, Florida 33323: and (b) RESIDENTIAL FUNDING CORPORATION, a Delaware corporarion ("RFC'), having an address of 8400 Norrnandale Lake Buwievard, Suite 250. Minneapolis, Minnesota 55437. (a) The sore Shareholder of Florida Llrrlited is FkwMe Holding, having an address of 1600 Sawgrass Corporate Parkway, Suite 300, Sunrise, Florida 33323. (1) The sole shareholder of Florida Holding Is lWsak Ezretti, hrAng an address of 1600 Sawgrass Corporate Parkway, Suke 300, Sunrise, Florida 33323. (b) The Sole shareholder of RPC is RESCAP CORPORATION, having an address of 8400 Normandals take Boulevard. Suite 250, Minneapolis, Mkunesola 56437. (i) The sole shareholder of RESCAP CORPORATION is GENERAL MOTORS ACCEPTANCE CORPORATION, having an address of 8400 Nomilandals Lake Boulevard, suite 250. Minneapolis, Minnesota 65437- 4. This Affidavit is made and given In oonnacbon with that certain ,�ppllcaWn for a Development Order Extension for the Terafina MUD by the Partnership. This ARkfavff is made under penalties of perjury. In addillorl Affiant declares Thal Aftianf has examined this Affldsvl afid to the best of Affiant'3 knowledge and be9ef It is Irue, corratt, and complete. Aftiant further declares that Affiant has the authority to execute this Affidavit on behalf of the Partnership. 3. Afflent is executing this Affidavit solely in her capacity as Vice Presldenit of the general partner of the general partner of the Partnership, and no resort shall be had to ahy of Afflanrs personal assets on account hereof. 8. This affidavit Is being given to Correct an in Inadvertent Inaccuracy contained In paragraph 3(b) of the Affidavit previously delivered to Collier County In connection with thal certain application for a Development Order Extension for the Teraflna PUD by the Partnership, a copy of which is attached hereto as Exhibit "A ". Agenda Item No. 16137 July 28, 2009 Page 40 of 56 OR: 4034 PG: 1849 FURTHER AFFIANT SAYS NOT, Q.L. HOMES OF MAPLES ASSOCIATES 11, LTD„ a Florida IlmW partnorahlp By: G:L. N F NAPLES U C PORATION. a Florid core tkxt, it By; n Preslden SWORN TO AND SUBSCRIBED before me Lhis3LIt clay of March, 2008. Name: 9 Notary Pubdc, Stele of arjdcv Commission No.; My Corrmisslon F-)Vkvx., (NOTARIAL SEAL) �•:•••�• �• $j Personauy Imawvn to me, or Alma B. Erns! Produced IdentOwl' . Camndicbn t 00454514 Aw 2A Agenda Item No. 16137 July 28, 2009 Page 41 of 56 OR: 4034 PG: 1850 1_ n kxl IBf r r RISK MANAGEMENT GUIDELi'` ES FOR RIGHT OF WAY A 1p CONSTRUCTION OF LOGAN BOULEV:I.RD Developer shall maintain the "rlplrad Commercial General Liahility insurance in full forte and effect. for the duration of the construction phase of Logan Boulevard until aca,:pte,d by the County pursunot to the terms set forth herein. The area insured shall be asset forth herein in Exhibit "B- to this Developer Contribution Agreement. Developer shall maintain Commercial General Liability lnsuranco in limits of not less than Sl.000,000.00 per occurrence combined single limits. Cuvcrige shall be .,ritten on an occurrence form. Developer shall name Collier County as an additional insured on said pol ivy. J • W kerr Risk .Management Director Collier County Government Date: May, .2006 i Agenda Item No. 16B7 July 28, 2009 Page 42 of 56 OR: 4034 PG: 1851 IUA EXNISIT G G.L HOMES4.01GAN EXT. TERAFINA - R0A0 IMP FEE Ending Balance 57,528,875.00 Final amount to be determined upon approval by County's Transportation Div, Prior to use of an credits. DATE PERMIT 0 CREDIT AMT BALANCE COMMENTS Beirlinning Balance S7.528 875.00 Agenda Item No. 16137 July 28, 2009 Page 43 of 56 OR: 4034 PG: 1852 10i, art i, EXHIBIT "ti" COLLIER COUNTY ALTERNATIVE DISPUTE RESQLLMON PROCEDURES 1. WTlidb=O_N: Florida law provides that written arbitration ag+eements arc valid, irrevocable and enforceable. Unless otherwise provided for heroin, the provisions of Florida Statutes, Chapter 682,01 erseq. shall be eontrvtling. These provisions provide a mechanism to resolve claims or disputes that could potentially lead to litigadon in construction contracts. The objoct is to attempt to settle claims by mutual agreement or to make a good faith effort to settle claims and disputes prior to litigation in mum The methods involve binding arbitration and pre -suit mediation. Arbitration is aquasi- judicial approach in which a dispute is resolved by a trier of fact utter presentations by opposing parties Its purpose is the speedy and economical resolution of disputes. Arbitration is traditionally a less fotrnal process than court litigation. Mediation is a method used to settle disputes using an impartial person who listecn to presentation by both sides and facilitates setilcment negotiations between the parties. Collier County will utilize the Twentieth Judicial Circuit Count Mediation and Arbitration Program, [hereinafter "Court Program"], to facilitate these procedures. ►t ti • 2 1 Claim: A demand by either party to a contract for an equitable adjustment of payment under a Collier County construction contract. A claim should cover all unresolved disputes existing at the time of presentation co arbitration or mediation. 2.2 Evidence: Oral testimony, written or printed material or other things presented to the arbitrator[&) or mediator(sj as proof of the existence or nonexistence of a pertinent fact. 3.1 A claim that does not exceed S230,000.00, excluding interest claimed, %ball be submitted to binding arbitration, The parties Wray. by mutual conacnt, agree to a one - person or single arbitrator panel. Aggregale claims may total more than S250,000.00 for binding arbitration, but no single claim may exceed that amount. Agenda Item No. 16137 July 28, 2009 Page 44 of 56 OR: 4034 PG: 1853 �I'd 3.2 A claim in excess of 5250.000.00 brought pursuant to a conastuction contract with the county ahali be submitted to mediation or binding arbitration if voluntarily agreed to by all parties. All claims less them SZ50,000.00 and all non - monetary claims brought pursuant to a construction.contracl with the county trust be stdmWtU rl is binding arbitration. 3.3 Prior to the Wslitution of say litigation in a circuit coral against Collier County. this Dispute Resolutionprocess roust be initiated. 3.4 Once the dispute re K4utkm procedure has been initiated, a court of law tray not consider the issues involved in the claim(s) until the dispute resolution process has been completed. 3.5 The claim roust be a dispute between the County and the prima contractor. 3.6 The claim must be related to issues in dispute, which have'r'eeu previously submitted in geed faith to the County pursuant to this procedure and could not be resolved by negotiation. 3.9 Pendency of a claim or arbitration or mediation of a dispute shall not be a basis for delay of the conuactor's performance, under the contract. 4. NffLart4G DISPUTE U OWTION PROCEDURE: 4.1 Either parry shall initiate a request for mediation or arbitration within thirty (30) calendar days after a denial of the claim after negotiation by County staff or no later than forty -five (45) calendar days alter knowledge of a claim by claimant. In any event, no claim shall be made after the dour when institution of legal or equitable proceedings based on such claims would be barred by the applicable statute of limitations. 4.2 Upon request, the County will make available to any party wishing to initiate arbitration or mediation, a procedural package containing the necessary forms. The forma shall include a Notice of Claian, a Request for Negotiation, a Request for Arbitration and a Request for Mediation. The County's Purchasing Dcparmww shall have these forms available and they will be included in the County's bid package. 4.3 F.itherparty to the contract may date arbitration or mediation of a claim by submitting a Request far A Wbadou or a Request for Mediation Claim Form to the Purchasing Department. The initiating parry must indicate on the form whether or not they will be rqu=artted by counsel during the beating and may indicate a desire to resolve the claim based solely on a submittal of documtents by the parties with no hearing. 4.4 The Claim Form shall be accompanied by: Agenda Item No. 1687 July 28, 2009 Page 45 of 56 OR: 4034 PG: 1854 io a A brief summary of the nature of the dispute involved in each pan of the claim. b. The amount of compensation being requested for each put of the claim along with supporting informatim C. Copies of additional written information, not previously submitted under Section 3 including exhibits, intended to be used during the hearing to support the Bairn, excluding the contract documents. It is suggested that information be assembled in a tabbed notebook for ease of retcrmce. d. Contract Time analysis if a lictcasc of Lig6datcd Damages is included in the claim, c. No new or ditiixertt claim, other than a change in the amottrrt claimed, will be allowed once the time and date for the henring has been set. f. if the arbitration panel or mediator dctcrrnincs that information known to a PC=" not in attendance at the Fear.ng or the mediation is essential to arriving at its decision or for the fstr c*_rcise of the mediation process, he or she may obtain a written affidavit t=om that person and enter such statement into the record, g. iSTRAT�N OF ARBITILATION. 5.1 The respondent shall prepare a rebuttal to the claim and furnisb a copy :o the party requesting arbitration and to each of the members of the panel to that it is received at least fourteen (14) catradar days prier to the date scli:duled for the hearing. 5.2 The County shall sat a time attd date fat an arbiuxtion hearing within 21 calendar days ader receipt of the Request. In scheduling the time allotmd for a hearing for complete claims, consideration will be given to the treed for the greater amount of testimony or other information required in order forthe arbitrators to gain a complete understanding of the issues, and if a party requests additional time, the arbitrators selected may continue the matter in 7- calendar day increments. A request fora continuance must be subv itted to the arbitrators no later than 48 -bours prior to the commencement of the hearing, Once arbitration has begun. it may only be contimsed in 24 — hour increments. 53 The panics are mcpocted to cooperate fully with each other in exchanging information prior to the hearing. in general. it is expected that the parties will have; exchanged all documents relating to the claim daring negotiations between them prior to arbitration being initiated. in any event. a full. i Agenda Item No. 16137 July 28; 2009 : Page 46 of 56 OR: 9034 PG: 1855 exchange of documents shall bs coanpleted en latter than se%%U M calendar days prior to the date set for the hearing. Oweralty, introduction of documents will not be allowed during the hearing which have not been previously been revealed to the oche' party. 5.4 Depoaitium and interrogatories wiU not be allowed except upon an order from the arbitrator to take sworn testimony of an unavailable witness, 6. INVOLVEMENT OF ATTORNEYS IN AN ARBITRATION HEARING: Counsel or another parson who has suftacieal authority to bind that party at any hearing may rep, ent a party. A court reporter will be present, unless waived by both parties. a. The hearing will be informal and involvement of attorneys, if desired, is expected to be minimal. b. The parties shall have NO opportunity to offer such evidence as is relevant and material to the dispute. c. Unnecessary extensive examination or cross-examination or extensive argument of legal points by attorneys representing the patties will not be permitted. The arbitrators may limit examination and argument as they deem appropriate. 7. CONDUCT OF EVMENTIARY HEARING IN AR.SMtATION: 7.1 The County or court reporter if present shall administer an oath to all persons who are to testify during the hearing. 7.2 Documents will be accepted and identified for the record. 7.3 Distinct and severable pan of a claim may be dealt with separately. 7.4 The order of proceeding wiU be for the parry initiating arbitration to first presort evidence to support their claim. At the beginning of their initial presentation. a party shall present a succinct statement of the issues and a position on each issue. Orderly discussion between the parties as evidence is pres.•ated will be allowed. 7.5 Reasonable attempts will be made to aware that all relevant evidence necessary to an understanding of the disputed issues and of value in resolving the claim is heard Indl that each party has the opportunity to adequately rebut aU arguments and evidence subr aitwA The arbitration panel will be the sole judge of the relevance and materiality of evidence otifere& Agenda Item No. 1687 July 28, 2009 Page 47 of 56 OR: 4034 N: IBM I� 7.6 Confortnance to legal rules of evidence shall not be necessary. 7.7 Members of the arbitration panel may ask questions of the parties for the purpose of clarification. 7.6 If substantial new information is subroined during a hearing, which the arbitration panel deems places the other patty at a severe disadvantage because of inability to develop an adequate rebuttal, the panel may elect to extcad the hearing to a later date as previously set forth herein. a. A stenographic record of any hearings by a Certified Court Rcport= or any previously recorded testimony or document prepared under oath, such as an affidavit is admissible. b. Each party shall bear an equal share of the cost of the arbiut6on panel. c. Each party shall pay its own costs and aaorney fees. d. All arbitration shall be concluded within one -half (1/2) day and all mediation shall be conducted within one (1) day unless continued pursuant to the provisions a f Section 51 herein. S. AMAWSTRATION OF MEDL\TION: 8.1 The respondent shalt prrpare a mediation summary regarding the claim and fumtsh a copy to the party requesting me&ation and to the mediator so that it is received at least fourteen (14) calendar days prior to the date scheduled for the mediation. 8.2 The County shall set a time and date for the mediation within 21 calendar days after receipt of the Request in scheduling the time allotted for complex claims, consideration will be given to the need for a greater amount of information required in order for the mediator to gain a complete understanding of the issues, and if a party requests additional time, the mediator selected may continue the matter in 7 -calcndar day increntmta. A request for a continuance must be submitted to the mediator no later than 48 -hours prior to the commencement of the mediation. Once mediation has begun, it may only be continued in 24 - hour increments. 8.3 The parties are expected to cooperate fully with each other in exchanging in.fonnation, In general, it is expected that the parties will have exchanged all documents relating to the claim during negotiations between them prior to mediation. In any event, full exchange of documents shall be contplctcd no later than seven (7) calendar days prior to the date set for the mediation. 8.4 Each party sha11 bear an equal share of the cost of the mediator. Agenda Item No. 16137 July 28, 2009 Page 48 of 56 OR; 4034 PG; 1657 8.5 Fut patty shall pay its own costs and anorney fees. 8,6 All mediation shall be conducted within one (1) day unless continued puesttsat to The provisions of section 52 hetcim 8.7 If a party Wis to appear at a duly noticed mediation witboat good cause it shall bear the costs of the mediator. attorneys' fees and Other costs. Tha County or any other public entity required to conduct its business pursuant to Rarida Sratujer. chapter 286, that party shall be deemed to appe n at a mediation conference by the physical presence of a representative with authority to negotiate an behalf of the entity and to recommend settlement to the appropriate decision - making body ofthe entity. 9.8' A party is deemed to appear if the parry or its representative having full audwriry to senle without fiuther consultation, the party"r counsel or a representative of the insurance carrier who has full authority to settle up to the amount of the claimant's last demand or policy limits, whichever is Icss. without further consultation. 8.9 The mediator shall at all times be in control of the mediation and the procedures to be followed in the mediation. 8.10 Counsel shall be permitted to cormnutticate privately with their clients. In the discretion of the mediator, mediation may proceed in the absence of counsel. 8.11 The mediator may meet and consult privately with any party or parties or their counsel, if any. 8.12 If a partial or final agreement is reached, it shall be reduced to writing and signed by the parties and their counsel, if any, 9.13 If the parties do not reach an agreement as to any matter as a result of mediation, the mediator shall prepare and distribute to each party a report indicating the lack of an agreement without comment or recommendation. With the consent of the parties. the mediator's report may also identify the outstanding legal issues or other action by any patty that, if resolved or completed, would facilitate the possibility of settlement_ 9. CObWENSATTON OF THE ARBURATION PANEL OR MEDIATOR: Arbitrators and Mediators shall be paid at the rate ofS 150.00 an hour, or the current rate for the Court program, An additional fee of 25% shall be payable to the Court Program for administration of any arbitration, but shall not be assessed fora mediation. The parties shall equally share all costs and shauictait all charges to the Court Program upon the cottclusionofthe AD PrbeeA. Agenda Item No. 16B7 July 28, 2009 Page 49 of 56 OR: 4034 PG: 1858 1 10. MEINMERSHIP: 10.1 The Arbitration Panel will aonsW of one member selected by the County and one member selected by the ContrROW. tmlaa tbs parties agree to utilize the Covet Progress's arbitratars. The Court Programs will select the third member of any )sane) and the thud member will sect as Chairman for all panel activities. Any single arbitrator will be selected through the Court Program. 10.2 All mediators and the Chair of any arbitration panel shall appear on the Court ProVam,s list of persons approved to serve as mediators and arbitrators. IO_3 It is desirable that all arbitration panel members have experience with the type ofaonstruction involved in this project. 10.4 It is imperative that mediators and arbitration panel members show no partiality to either the Contractor or the County, nor have any conflict of interest_ 10.5 The criteria and limitations for mediators and arbitration paned meutbersbip is as follows: a. 'the person[s] selected will not have any direct or indirect ownership or financial interest in the Contractor awarded die project, the CEI consulting firm selected for the project, in any subcontractor or supplier of the project, nor in other panel members. Each panel member shall provide a statement of no known conflict. b. No arbitrator or mediator shall Nava had any prior involvement in the project of a nature that could be construed to compromise bisfier ability to impartially resolve dispirits. c. No arbitrator or mediator will be employed by the Contractor awarded Ow project. the CEI consulting frrrn selected for the project or by any subcontractor or supplier of the project daring the life of the Contract, except as a panel member or mediator. d. The Florida Ruin of Court Rules 1020) drag., Part 0 of the Mules for Mediators and Part Il of the Ruin for Court Appointed Arbitrators shall apply, except Role 11.110 and Rules 10.870 d magh 10.900. e. Rules I,720(c), (d), and (e) of the Florida Rules of Civil Procedure govorningrnediation arse incorporated herein. UK; 4034 ru; 10:17 11. MISCELLANEOUS PROVISIONS: a. Arbivatm and mediators slosh be agents and employee of the Caunty for purposes of tort immunity nmAtWg ftm any actions taken while conducting the hen ft jsj or the mediation as long ss these pmccdm= are followed. Such status shall not eresto a coafiiet of interest. Prepared and Approved as to form and lcpl sufficiency: 4 Jacqueline Hubbard Robinson Assistant CountyAttorney Agenda Item No. 16137 July 28, 2009 Page 50 of 56 ' Agenda Item No. 1687 July 28, 2009 Page 51 of 56 OR: 4034 PG: 1864 * ** 10A Within the Following Time Periods Following the Notice of Claim or the Date of the Occurrence Underlying the Claim. Whichever is First. the Following Masters Must Occur. [All days sro Calendar Days]: Up to 14 clays after occurrence or Notice of CWin,(whichever is first]: The matter mast be negotiated with County Staff: Within 7 days of receipt of Notice of Claim: Staff shall prepare a writtm rebuttal. Within 13 Days of Notice of Claim: Negotiation of dispute with County staff must be completed. Within 30 Days after Negotiations with County Staff ends or Within 45 days of the bate of the occturemc: a Request for Arbitration or Mediation MEW be Filed, After a Request for Arbitration or 1ediation is Filed: Within 21 days: The Mediation or Arbitration shall be set including the names of the participants and all relevant claim documents forwarded to the Mediator or Arbitrwors. No Later Than 14 days prior to date of Mediation: A written rebuttal to any claim must be served on opposingparty and Mediator or Arbitrators. No Later Than 49 Roars Prior to the date of the \1odiation or Arbitration: Any request for a continuance must be filed with the :arbitrators or Mediator with a copy to County Staff. Once Mediation or Arbitration begins it may be continued for only 24 hours at a time with the consent of the Arbitrators or Mediator. Within 14 days of conclusion of Arbitration or ciliation: Written decision recast be issued indicating that a certain conclusion his been reached or an impasse entitling claimant to proceed to court litigation. 13oth parties must undertake a] I ADR proceedings in good faith. H hcbaO.spm Re kjb-. Praa'wwc .. ..0 z o H N N cp O N U W fs. UQ A � p wd ,.y M a �Q HIx w �r- '0 Q � en en pro b q U h�l U ae 4.0 rl Z V U w V A c go °Q° w Z o � OWE d G7 oZ w T W w e'' CY U A Ego A W W o z A� a x a V U O O ►.awl Agenda Item No. 1687 July 28, 2009 Page 52 of 56 Ln U U ,� o f, U 4° e d � � o U U . R N U � C a w o �b Gn lit a' v U env d 40. .� © o U °c Agenda Item No. 1687 July 28, 2009 Page 53 of 56 Co*-r Count y TRANSPORTATION DIVISION ENGINEERING & CONSTRUCTION MANAGEMENT DEPARTMENT INTEROFFICE MEMORANDUM DATE: July 23, 2008 TO: Nick Casalanguida, Director FROM: Jay Ahmad, P.E., Director SUBJECT: Logan Boulevard Extension m Vanderbilt Beach Road to Immokalee Road — Project No. 60166 Final Certificate of Cost Per our request, William Fenno, P.E. Director of Land Development for G.L. Homes of Florida, has supplied the following information for review: 1. Signed Design Contract with Hole Montes, Inc. 2. Supplemental Agreements with Hole Montes, Inc. for Design 3. Hole Montes, Inc, Invoices for the Design Contract and paid check stubs 4. Signed Construction Contract with P13G of Central Florida 5. Change Orders on the Construction Contract with PBG of Central Florida 6. PBG of Central Florida, Inc. Invoices and paid check stubs 7. Signed CEI Contract with Hole Montes 8. Supplemental Agreements with Hole Montes, Inc. for CEI 9. Hole Montes, Inc. Invoices for CEI and paid check stubs 10. Signed Soils Contract with ASC GeoSciences, Inc- 11. ASC GeoSciences, Inc. Invoices and the paid check stubs 12. Naples News, SFWMD, Southwest Florida Wetlands JV paid check stubs We have reviewed the submitted data to verify accuracy and ascertain that all charges are appropriate for the work completed on this project. G.L. Homes received 3 bids from roadway contractors and selected PBG of Central Florida, the lowest bidder on the project. Based upon our review, we have determined that the final costs for the project are as follows: Holes Montes, Inc Hole Montes, Inc. Naples News South Florida Water Management District Southwest Florida Wetlands J.V. ASC GeoScience, Inc. PBG of Central Florida, Inc. Design/Permitting Construction Inspection Advertising Permit Fees Mitigation Geotechinal Services Construction of Roadway Should you have any questions or need additional information, please advise. C: Norman Feder, Administrator Dale Bathon, P.E., Principal Project Manager Project File 60166.03 E $ 819,447.25 $ 665,177.44 $ 3,432.18 $ 3,500.00 $ 204,000.00 $ 1,715.00 x,363,244.09 Total $10,060,515.96 Agenda Item No. 16137 July 28, 2009 Page 54 of 56 M E M 0 TO: Amy Patterson, Impact Fee Manager 4 FROM: Nick Casalanguida, Transportation Plan ,g irector DATE: September 2, 2008 SUBJECT: Roadway Impact Fee Credits for GL Homes of Naples Associates - II, Ltd. (DCA Book 4034 Page 1820, Recorded May 10, 2006) In accordance with the Logan Boulevard Agreement, GL Homes has satisfied their requirement to complete the Logan Boulevard Extension from Vanderbilt Beach Road to Immokalee Road. PleaseIssue transportation% impact fee credits in the amount of $104,6-0i515.96 for their use ins accordance with our impact4ee ordinance and consistent with the approved DCA,z I have also attached a copy of the interoffice memorandum which verifies and approves the total project costs. Should you have any questions or concerns, please do not hesitate to contact me. Cc: Norman Feder, Administrator Jay Ahmad, P.E., TECM Director Paula Fleishman, Impact l=ee Coordinator .Jeanne Marcella (FILE) Collier County Tranaporta6on Planning Agenda Item No. 1587 July 28, 2009 Page 55 of 56 Coy* -r County TRANSPORTATION DIVISION ENGINEERING & CONSTRUCTION MANAGEMENT DEPARTMENT INTEROFFICE MEMORANDUM DATE: July 23, 200$ TO: Nick Casalanguida, Director FROM: Jay Ahmad, P.E., Director 4 SUBJECT: Logan Boulevard Extensio om Vanderbilt Beach Road to Immokalee Road — Project No. 60166 Final Certificate of Cost Per our request, William Fenno, P.E. Director of Land Development for G.L. Homes of Florida, has supplied the following information for review: 1. Signed Design Contract with Hole Montes, Inc. 2. Supplemental Agreements with Hole Montes, Inc. for Design 3. Hole Montes, Inc. Invoices for the Design Contract and paid check stubs 4. Signed Construction Contract with PBG of Central Florida 5. Change Orders on the Construction Contract with PBG of Central Florida 6. PBG of Central Florida, Inc. Invoices and paid check stubs 7. Signed CEI Contract with Hole Monies 8. Supplemental Agreements with Hole Montes, Inc. for CEI 9, Hole Montes, Inc, Invoices for CEI and paid check stubs 10. Signed Soils Contract with ASC GeoSciences, Inc. IL ASC GeoSciences, Inc. Invoices and the paid check stubs 12. Naples News, SFWMD, Southwest Florida Wetlands JV paid check stubs We have reviewed the submitted data to verify accuracy and ascertain that all charges are appropriate for the work completed on this project G.L. Homes received 3 bids from roadway contractors and selected PBG of Central Florida, the lowest bidder on the project. Based upon our review, we have determined that the final costs for the project are as follows: Holes Montes, Inc Hole Montes, Inc. Naples News South Florida Water Management District Southwest Florida Wetlands J.V. ASC GeoScience, Inc. PBG of Central Florida, Inc. Design/Permitting Construction Inspection Advertising Permit Fees Mitigation Geotechinal Services Construction of Roadway Should you have any questions or need additional information, please advise. C: Norman Feder, Administrator Dale Bathon, P.E., Principal Project Manager Project File 60166.03 E $ 819,44725 $ 665,177.44 $ 3,432.18 S 3,500.00 S 204,000.00 $ 1,715.00 $ 8,363,244.09 Total $10,060,515.96 GLHOMES December 9, 2008 VIA: Hand - Delivery Norman Feder, Transportation Administrator Transportation Services Division 2885 South Horseshoe Drive Naples, FL 34104 Agenda Item No. 16B7 July 28, 2009 Page 56 of 56 1600 Sawgrass Corporate Parkway Suite 230 Sunrise, Florida 33323 Tel 954-753-1730 Fax 954-753 -4509 www.glhomcs.com RE: Notice of Default and Demand for Cure - Logan Boulevard from Immokalee Road to Vanderbilt Beach Road - Amended and Restated Standard Form Collier County Contribution Agreement for Road Impact Fee Credits (ORB 4034/Page 1820). Dear Mx. Feder: This letter is written in follow up to our demand for reimbursement from the County in the amount of $10,060,515.96 for the construction costs incurred by us for the Logan Boulevard Extension. As you know, we already provided the County with written notice on October 21, 2008 of our demand for reimbursement which is made pursuant to the express terms of the Amended and Restated Standard Form Collier County Contribution Agreement for Road Impact Fee Credits ( "Agreement "). Unfortunately, the County has failed to pay the reimbursement as required by the Agreement and the County remains in default of its contract obligations. Pursuant to the Agreement, the County has thirty - (30) days to cure its default and we fully expect and demand that the County take all steps necessary to cure its default in a timely manner. If the default is not cured in accordance with the terms of the Agreement, we will be forced to pursue appropriate legal remedies. Should you have any questions, or need any additional information, please do not hesitate to contact me. Sincerely, G.L. Homes of Naples Associates 11, Ltd. OA61k Heather C. Keith Assistant General Counsel cc: Via Fax to: Mr. Tim Mudd, County Manager Jay Ahmed, Director (Fax 239- 252 -5885) County Manager's Office Transportation Engineering & Construction Management 3301 E. Tarniami Trail 2885 South Horseshoe Drive Naples, FL 34112 Naples, FL 34104 (Fax 239 - 252 -4010) Jeffrey A. Klatzkow, County Attorney (Fax 239- 252 -0225) (In lieu of David Weigel, former County Attorney) County Attorney's Office 3301 E. Tamiarai Trail, 8d' Floor "` Naples, FL 34112