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Agenda 10/27/2009 Item #16B 6Agenda Item No. 1666 October 27, 2009 Page 1 of 12 EXECUTIVE SUMMARY Recommendation to approve a Temporary Right of Entry to construct a connecting sidewalk for a bus shelter on a .004 acre portion of land along the existing right of way on U.S. 41 at the Waterside Shops on Pine Ridge Road. Project No. 60083 (Fiscal Impact: $0) OBJECTIVE: To obtain Board of County Commissioners' approval to obtain a Temporary Right of Entry for the temporary use of a.004 acre portion of land along the existing right of way on U.S. 41 at the Waterside Shops on Pine Ridge Road needed to construct a connecting sidewalk from a bus shelter to the existing sidewalk. CONSIDERATIONS: The Alternative Transportation Modes Department has been implementing a plan for the installation of bus shelters for the Transit System. One of the shelters identified on the initial list is located on the Tamiami Trail in front of the Waterside Shops. In order to construct the proposed shelter in accordance with ADA requirements the foundation must be tied into an existing sidewalk. The existing sidewalk is outside of the road right -of -way and located on private property owned by Waterside at Pelican Bay LLC. The property owner is willing to grant the County right of entry access onto their property to construct the connecting sidewalk to the proposed bus shelter pad. The proposed bus shelter will be located in the County right -of -way. --- There is currently a pad and bench located in front of Waterside Shops that was constructed in accordance with the development requirements. The proposed bus stop location is approximately 215 feet south of the existing pad and will provide increased safety for the bus riders, as well as the motorized public. With the construction of the new bus shelter, the existing pad will no longer be needed. Therefore, the County will demolish and remove, in its entirety, the existing bus stop and associated structure, pad and related improvements currently located on that certain portion of property and replace the same with new sod. FISCAL IMPACT: The proposed easement will not have a fiscal impact; however, when obtained, the easement will provide for the construction of a bus shelter which will have a fiscal impact estimated at $22,700.00. The funds for the construction of the bus shelter will be paid for with FTA grant funds. GROWTH MANAGEMENT IMPACT: There is no growth management impact associated with this Executive Summary. This is a regular item requiring a majority vote. LEGAL CONSIDERATIONS: This request has been reviewed by the Office of the County Attorney and is legally sufficient for Board action. - JBW RECOMMENDATION: That the Board of County Commissioners of Collier County: 1. Approve the attached Temporary Right of Entry; 2. Authorize its Chairman to execute the Temporary Right of Entry on behalf of the Board; Prepared by: Michelle Edwards Arnold, Department of Alternative Transportation Modes Debbie Armstrong, Assistant Manager, Right of Way Acquisition, TECM Attachments: 1) Temporary Right of Entry and attached exhibits 0 Page l of 2 Agenda Item No. 16136 October 27, 2009 Page 2 of 12 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: 16B6 Item Summary: Recommendation to approve a Temporary Right of Entry to construct a connecting sidewalk for a bus shelter on a .004 acre portion of land along the existing right of way on U.S. 41 at the Waterside Shops on Pine Ridge Road. Project No. 60083 (Fiscal Impact: $0) Meeting Date: 10/27/2009 9:00:00 AM Prepared By Debbie Armstrong Property Acquisition Specialist Date Transportation Services TECM -ROW 10/1/2009 10:45:32 AM Approved By Dale A. Bathon, P.E. Prinicipal Project Manager Date Michelle Edwards Arnold Transportation Engineering and Date Transportation Services Construction 1011l2009 11:29 AM Approved By Najeh Ahmad Director Date Transportation Engineering & Transportation Services Construction Management 1011!2009 12:54 PM Approved By Daniel Hall Senior Project Manager Date Transportation Engineering and Transportation Services Construction 10/112009 1:12 PM Approved By Norm E. Feder, AICP Transportation Division Administrator Date Transportation Services Transportation Services Admin. 1011/2009 2:18 PM Approved By Alternative Transportation Modes Michelle Edwards Arnold Director Date Transportation Services Alternative Transportation Modes 101712009 4:03 PM- Approved By Therese Stanley Grants Coordinator Date Transportation Transportation Administration 1011312009 11:24 AM Approved By Barbara LaPierre Management/Budget Analyst Date Transportation Services Traffic Operations 10113/2009 11:36 AM Approved By Jennifer White Assistant County Attorney Date file: / /C: \AgendaTest \Export \137-October 27, 2009 \16. CONSENT AGENDA \16B. TRAN... 10/21/2009 Page 2 of 2 Agenda Item No. 16136 October 27, 2009 Page 3 of 12 County Attorney County Attorney Office 10/14/2009 1:50 PM Approved By Pat Lehnhard Fxecutive Serretary Date Transportation Services Transportation Services Admin 10114/2009 1:55 PM Approved By OMB Coordinator OMB Coordinator Date County Manager's Office Office of Management & Budget 10/14/2009 3:08 PM Approved By Jeff Klatzkow County Attorney Date County Attorney County Attorney Office 10(1512009 9 :33 AM Approved By Mark Isackson Budget Analyst Date County Manager's Office Office of Management & Budget 10/1512009 4:30 PM file: / /C: \AgendaTest \Export \137- October 27, 2009 \16. CONSENT AGENDA \16B. TRAN... 10/21/2009 Agenda Item No. 1686 October 27, 2009 Page 4 of 12 TEMPORARY RIGHT OF ENTRY AGREEMENT KNOW ALL MEN BY THESE PRESENTS that WATERSIDE AT PELICAN BAY LLC, a Delaware limited liability company, whose mailing address is: c/o The Forbes Company, 100 Galleria OfficeCentre, Suite 427, Southfield, Michigan 46034 -0667 (hereinafter singularly or collectively referred to as "Licensor"), for and in consideration of Ten Dollars ($10.00) and other valuable consideration to it in hand paid, does hereby grant unto COLLIER COUNTY, a political subdivision of the State of Florida, whose mailing address is 3301 Tamiami Trail East, Naples, Florida 34112 (hereinafter known as "Licensee'), a temporary, non - exclusive license and right to enter upon a certain portion of property owned by Licensor as more particularly described on Exhibit "A" and depicted on Exhibit "A" and Exhibit "B ", both of which are attached to and made a part of this Temporary Right of Entry Agreement (this "Agreement") and identified as the "Temporary Construction Area" on the attached Exhibit "B" (the "Temoorary Construction Area "), for the express purpose of constructing and installing a sidewalk in the Temporary Construction Area which will extend the existing sidewalk that is located adjacent to the Temporary Construction Area to the existing right of way that is also located adjacent to the Temporary Construction Area and is owned by the Florida Department of Transportation as shown on Exhibit "B" attached to and made a part of this Agreement pursuant to the plans and specifications attached to and made a part of this Agreement as Exhibit "B" (the "Sidewalk Improvements "), together with the right of ingress and egress on, over, across and through Licensor's property in areas reasonably designated by Licensor in order for Licensee to construct the Sidewalk Improvements, to the extent necessary. The rights and interests granted hereunder are conditioned upon the reasonable exercise thereof by Licensee. Licensee agrees not to unreasonably interfere with Licensor's use of the lands owned by Licensor, including, but not limited to, the Temporary Construction Area. Licensee will demolish and remove in its entirety the existing bus stop and associated structure, pad and related improvements currently located on that certain portion of property which is depicted and identified as the "Existing Bus Stop Area" on Exhibit "C" attached to and made a part of this Agreement along U.S. 41 (the "Existing Bus Stop Area ") and replace the same with new sod (the "Existing Bus Stop Improvements ", which together with the Sidewalk Improvements are collectively hereinafter referred to as the "improvements "). This Agreement will automatically terminate upon the earlier to occur of: (1) the completion of the construction of the Sidewalk Improvements on the Temporary Construction Area and the Existing Bus Stop Improvements on the Existing Bus Stop Area, or (ii) December 31, 2009 (the "Outside Date "). Notwithstanding the foregoing, if the Improvements are not completed prior to or on the Outside Date, all of Licensee's obligations and responsibilities under this Agreement shall remain in full force and OAKLAND. 1691041.4 Agenda Item No. 16136 October 27, 2009 Page 5 of 12 effect until all of the same are completed to the reasonable satisfaction of Licensor and Licensee shall remain fully obligated to complete the same in a diligent manner in accordance with the terms of this Agreement; at which time, this Agreement shall terminate. In no event shall Licensee bring or store any hazardous materials, construction debris or any other materials on the Temporary Construction Area or the Existing Bus Stop Area, which Licensor may, in its sole discretion, object to, and upon written notice to Licensee, Licensee will promptly remove any materials to which Licensor objects from the Temporary Construction Area and/or the Existing Bus Stop Area. Licensee will not at any time use, or permit its employees, agents, representatives, contractors, subcontractors, consultants or invitees to use, (A) the Temporary Construction Area or the Existing Bus Stop Area for any purpose other than as contemplated under this Agreement, or (B) any portions of the Licensor's property outside of the Temporary Construction Area for any purpose whatsoever. Licensee will delineate and identify the Temporary Construction Area and the Existing Bus Stop Area by using temporary fencing which is approved by Licensor. Licensee will comply, and cause the Temporary Construction Area, the Existing Bus Stop Area and the Improvements to comply, with all laws, ordinances and other governmental regulations that apply to the use of the Temporary Construction Area, the Existing Bus Stop Area or the construction of the Improvements as contemplated under this Agreement. Except as otherwise expressly provided in this Agreement, Licensee will not construct or maintain any walls, fences, barriers, buildings or structures of any nature on Licensor's property or any portion thereof. Licensor reserves the right at any time to use the Temporary Construction Area for any and all purposes Licensor desires. During the term of this Agreement, Licensee will, at its sole cost and expense, maintain the Temporary Construction Area and the Existing Bus Stop Area in a safe and sightly condition, clean and free of any rubbish, debris and other materials, and Licensee will not damage the Licensor's property or any improvements on the Licensor's property. If Licensee or any agent, representative, employee, contractor, subcontractor, consultant, or invitee of Licensee causes or permits any damage to Licensor's property (including, but not limited to, the Temporary Construction Area) or any improvements on Licensor's property (including, but not limited to, any improvements located within the Temporary Construction Area), Licensee will, at its sole cost and expense, restore Licensor's property to the same condition as existed prior to the damage or reimburse Licensor for any costs incurred by Licensor to restore Licensor's property to the same condition as existed prior to the damage. OAKLAND. 1691041 4 Agenda Item No. 1686 October 27, 2009 Page 6 of 12 Licensee will pay all of its contractors, subcontractors, engineers, consultants and any others who are completing, or assisting in the completion of, the construction of the Improvements on behalf of Licensee, and Licensee will not allow any mechanic's liens or materialmen's liens to attach to Licensor's property as a result of the construction of the Improvements. If any such lien is at any time filed, Licensee will cause the same to be discharged of record within twenty (20) days thereafter by satisfying the same. If Licensee fails to discharge such lien, Licensee will be deemed to be in material breach of its obligations under this Agreement and Licensor may, in addition to any other remedies Licensor may have under this Agreement, but without obligation to do so, cause such lien to be discharged without inquiring into the merits of such lien. All sums so advanced by Licensor, including reasonable attorney fees incurred by Licensor in defending against and procuring the discharge of such lien, will be paid by Licensee on demand. The terms and provisions of this paragraph shall survive the termination of this Agreement. Licensor does not assume any risk, liability or responsibility or duty of care as to Licensee or its employees, agents, contractors, subcontractors, engineers, representatives or consultants when on the Temporary Construction Area or the Existing Bus Stop Area to complete the construction of the Improvements. Licensee acknowledges and agrees that Licensee and its employees, agents, contractors, subcontractors, engineers, representatives and consultants will enter the Temporary Construction Area and the Existing Bus Stop Area and complete the construction of the Improvements at their own risk and Licensee assumes all risk, liability or responsibility for its employees, agents, contractors, subcontractors, engineers, representatives and consultants which may arise as a result of or in connection with Licensee's or its employees, agents, contractors, subcontractors, engineers, representatives and consultants completing the construction of the Improvements on the Temporary Construction Area and the Existing Bus Stop Area. If Licensee fails to perform any obligation under this Agreement for which it is responsible, Licensor will, at its sole election, have the right to institute any or all of the following remedies upon ten (10) days prior written notice to Licensee and Licensee's failure to cure same (except in an emergency, in which event prior notice from Licensor will not be required): (1) Licensor may perform any such obligation and any costs incurred by Licensor for the performance of such obligation under this Agreement will be reimbursed by Licensee upon Licensee's receipt of an invoice for such costs incurred by Licensor, (2) institute legal action against Licensee for specific performance, declaratory relief, damages or other legal or equitable remedies, or (3) terminate this Agreement upon written notice to Licensee. The remedies provided in this Agreement and their enforcement are in addition to and not in substitution for or at the exclusion of any other rights and remedies which Licensor may have under this Agreement or at law or in equity. OAKLAND.] 691041.4 Agenda Item No. 1686 October 27, 2009 Page 7 of 12 Licensee will maintain or cause to be maintained, at its sole cost and expense, comprehensive general liability insurance on an occurrence basis with personal injury, contractual liability and broad form property damage coverage with limits in at least the following amounts: Bodily injury inciuding Personal Injury: each person $3,000,000 each occurrence $3,000,000 Property Damage: each accident $3,000,000 aggregate $3,000,000 Licensee's comprehensive general liability policy must (i) provide that it shall not be cancelled or amended without at least thirty (30) days' prior written notice to Licensor and (ii) identify Licensor and any other parties designated by Licensor as additional named insureds. Certificates of Licensee's insurance must be delivered to Licensor prior to use of the Temporary Construction Area by Licensee (and in any event not less than ten (10) days after the date of this Agreement) and not less than fifteen (15) days prior to the expiration date of the expiring policy. Licensee will indemnify, defend, and hold Licensor harmless from and against any and all liabilities, damages, causes of action, suits, claims, judgments, costs or expenses of any nature whatsoever (including reasonable attorneys' fees and disbursements) arising in connection with (a) any breach of this Agreement or (b) the use of the Temporary Construction Area, the Existing Bus Stop Area or any other portion of the Licensor's property by Licensee or its agents, representatives, contractors, subcontractors, consultants, employees or invitees. Licensee will not record this Agreement. Nothing contained in this Agreement is intended to be a gift or dedication of any portion of Licensoe's property to the general public or for any public use or purpose whatsoever. This Agreement is for the exclusive benefit of Licensee and Licensor, and nothing in this Agreement, express or implied, confers upon any person, other than Licensee and Licensor, any rights or remedies under or by reason of this Agreement. Any notice, request or other communication required or permitted to be delivered hereunder will be given in writing and will be deemed to have been delivered (i) when deliverer; personaily, (ii; three (3) business days after being deposited in the United ,3tate:� ;email by certified nt ail, return receipt requested, postage prepaid, and properly addressed, or (i i olio (1) business day after being deposited with a reputable overnight delivery service (e.g., Federal Express), guaranteeing and sent for next business day cl- !ivery, with delivery charges prepaid and properly addressed. For the purposes hereof, tl-::e addresses of the parties, until further notice, will be as follows: 0:`,'UAND.1r_.S 104 1.4 Agenda item No. 1686 October 27, 2009 Page 8 of 12 LICENSOR: Waterside at Pelican Bay LLC cto The Forbes Company 100 Galleria Off iceCentre, Suite 427 Southfield, Michigan 48034 -0667 Attention: Nathan Forbes With a copy to: Honigman Miller Schwartz and Cohn LLP 38500 Woodward Avenue, Suite 100 Bloomfield Hills, Michigan 48304 Attention: David J. Jacob, Esq. LICENSEE: Collier County Attn: Michelle Arnold, Director of Alternative Transportation Modes 2885 S. Horseshoe Drive Naples, Florida 34104 This Agreement and the obligations of the parties hereunder are governed by and will be interpreted, construed and enforced in accordance with the laws of the State of Florida. If any provision of this Agreement is invalid or unenforceable to any extent, the remainder of this Agreement will not be affected and may be enforced to the greatest extent permitted by law. This Agreement may be executed in counterparts, each of which will constitute an original although not fully executed, but all of which when taken together, will constitute but one agreement. Delivery by facsimile or electronic mail of this Agreement or an executed counterpart hereof will be deemed a good and valid execution and delivery hereof. This Agreement (including all exhibits attached to this Agreement) represents the entire agreement between the parties with respect to the subject matter of this Agreement, and all prior or contemporaneous agreements or understandings with respect to the subject matter of this Agreement are merged in this Agreement. This Agreement binds and inures to the benefit of the parties to this Agreement and their respective successors and assigns. Licensee's right of entry onto Licensor's property is contingent upon no other provisions, conditions, or premises other than those so stated above; and there are no other prior or contemporaneous written or oral agreements, undertakings, promises, warranties, or covenants between Licensor and Licensee that are not contained herein. OAKLAND. 1641041.4 Agenda Item No. 16136 October 27, 2009 Page 9 of 12 IN WITNESS WHEREOF, Licensor and Licensee have caused these presents to be executed in their respective names as of the day of September, 2009, and do hereby affirm that the individual executing same, on behalf of Licensor or Licensee, respectively, has the authority to act on behalf of Licensor and Licensee, respectively, and does intend that the other party rely on such authority. Witns'es: Side of Witness t/ Print Name:. Signature of Witness Print Name: 1-1 x —,L- witnesses: Signature Print Name: Signature of Witness, Pri Name: r WATERSIDE AT PELICAN BAY LLC, a Delaware limited liability company ' Y B y: t Nathan Forbes Its: Authorized Signatory `A COLLIER COUNTY, Y BO1 a political subdivision of the State of Florida 0.Cq.. . ..1 1lf,-" ref, VW rb, 4 — -0 t Yv t i �.�ri4.+ } -x -- '`. irk -t} •,.'�',; OAKLAND.1691 D41.4 By: Donna Fiala Its: Chairman ATTEST: TEST: DWIGHT E. BROCK, Clem zU� coo WN 93Qb ww• <In O _J O!'• �NZ y. 2 FD - O - F Z Z N�p�f/1 N < W 7 a O d# x W <mwgmTi ja,_Fz v N z�� a 4 Ro m WOCIG V� zrCr�Wj y,v WO z U < K Ls Z z p O 2 a <� �ZwrD O O O � p m " W Z O 4 Z O = zzma= 7p z{� U U. T, J < a c Zn LA 11N�. ui w po <p m cs p5 O O < O,<R ono u °G <00)z O o�3�z8 Z m w wz WW NL {1 LJ F r 0g? w V O Z ! wo — W h d 44 Q 2 < IA- O W k W W m O N V O U O FtJ'/� wN 02 W a Oi z r < ! D O z °z8Lit" EXHIBIT "A" ,00"05t N1.*Z,O£.69S I ` Y+ J pW� O in F- 0 WWU ID N ypj W � p a z °g°E < a a. w K 4 < p Q w w u p � W O � < 10 9 0 N 0 zoaa t� r d 0 i Agenda Item No. 16136 October 27, 2009 Page 10 of 12 ,- w�4 O J N 6a. 8 M yMy m z O O N C/ .p W in O in z z �9 P z O n �'y i_ ei �rh 4 MN t trj 0 � n 3 a a m 3 C9 � a uC4 7 Ii m Q w S i z -CL � a w z y�y z CS z .8. -MI#Yd JO 3Nn HLn05 m ° � W O N H w�4 O J N 6a. 8 M yMy m z O O N C/ .p W in O in z z �9 P z O n �'y i_ ei �rh 4 MN t trj 0 � n 3 N m 3 C9 � � M � � a w z y�y z CS z m ° � W O N p� a Or o V c aD N fl / 8 /i w�4 O J N 6a. 8 M yMy m z O O N C/ .p W in O in z z �9 P z O n �'y i_ ei �rh 4 MN t trj 0 Agenda Item No. 16136 October 2 t, 2009 EXHIBIT "B99 --7a—g—e7 of 12 A6 P CL T;8 CL � � �' S'a �� oo i 11 G r Ax F u A6 P CL iX -:1 Ll. (L vl Ua F- II CL � � �' S'a �� oo i iX -:1 Ll. (L vl Ua F- II EXHIBIT "C" EXISTING BUS STOP AREA if . &- ill AL Agenda Item No. 16136 October 27, 2009 Page 12 of 12 P. p- , - EXISTING BUS STOP AREA in 4e I 11M- 406 T7 P. p- , - EXISTING BUS STOP AREA in