Backup Documents 10/27/2009 Item #16B 6
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MEMORANDUM
Date:
October 29,2009
To:
Debbie Armstrong, Project Mgr.
Transportation Engineering/Construction Mgmt.
From:
Ann Jennejohn, Deputy Clerk
Minutes and Records Department
Re:
A Temporary Right of Entry to construct a required
ADA connecting sidewalk for a bus shelter along an
existing right-of-way on U.S. 41 at the Waterside Shops
on Pine Ridge Rd.
Attached is an original agreement, as referenced above (Item #16B6)
approved by the Board of County Commissioners on October 27, 2009.
The other original duplicate right-of-way agreement will be held with
the Board's official records in the Minutes & Records Department.
If you should have any questions, feel free to contact me at 252-8406.
Thank you.
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ORIGINAL DOCUMENTS CHECKLIST & ROUTING SLIP
TO ACCOMPANY ALL ORIGINAL DOCUMENTS SENT TO
THE BOARD OF COUNTY COMMISSIONERS OFFICE FOR SIGNATURE
Print on pink paper. Attach to original document. Original documents should be hand delivered to the Board Otftcc. The completed routing slip and original
documents are to be forwarded to the Board Office only after the BO~~U~;;;~o~~~~ item) -:t:; 11 lltiM e 1/
Comptete routing Iines#t thmugh #4 as appropriate tor additional signatures. dates. and/or information needed. If the document is alrea~omPletewl&the
exceotion of the Chairman's sip-nature, draw a line through routin!! lines # I throu!!h #4, comnlete the checklist, and forward to Su... r;!::'vu (line#5t
Route to Addressee(s) Office Initials Date
(List in routim! order)
1.
2. -----
-----.-
. --
---
3. - - ,
.
--
---' /"
4. ~
5. Ian Mitchell, BCC Supervisor Board of County Commissioners fA- IO!tJ!cfj
6. Minutes and Records Clerk of Court's Office
(The primary contoct is the holder of the original document pending Bee approval. Normally the primary contact is the person who created/prepared the executive
summary. Primary contact information is needed in the event one of the addressees above, inc1lliing Sue Filson, need to cOltact staff for additional or missing
information. All original documents needing the BCe Chairman's signature are to be delivered to the BCe office only after the BCC has acted to approve the
item.)
Name of Primary Staff
Contact
Agenda Date Item was
A roved b the BCC
Type of Document
Attached
PRIMARY CONTACT INFORMATION
Phone Number
CBI)'E A~"'~~QtvG
fa ~7Ia"1
f./61Fr tJF
Agenda Item Number
Number of Original
Documents Attached
.-.-
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AG,c""I"1GN
INSTRUCTIONS & CHECKLIST
Initial the Yes column or mark "N/A" in the Not Applicable column, whichever is
a ro riate.
I. Original document has been signed/initialed for legal sufficiency. (All documents to be
signed by the Chairman, with the exception of most letters, must be reviewed and signed
by the Office of the County Attorney. This includes signature pages from ordinances,
resolutions, etc. signed by the County Attorney's Office and signature pages from
contracts, agreements, etc. that have been fully executed by all parties except the BCC
Chairman and Clerk to the Board and ossibl State Officials.)
2. All handwritten strike-through and revisions have been initialed by the County Attorney's
Office and all other arties exce t the BCC Chairman and the Clerk to the Board
3. The Chairman's signature line date has been entered as the date ofBCC approval of the
document or the final ne otiated contract date whichever is a licable.
4. "Sign here" tabs are placed on the appropriate pages indicating where the Chairman's
si nature and initials are re uired.
5. In most cases (some contracts are an exception), the original document and this routing slip
should be provided to Sue Filson in the BCC office within 24 hours of BCC approval.
Some documents are time sensitive and require fotwarding to Tallahassee within a certain
time frame or the BCC's actions are nullified. Be aware of our deadlines!
6. The document was approved by tbe BCC on 6 (enter date) and all changes
made during the meeting have been incorporated in the attached document. The
Count Attorne 's Office has reviewed the chan es, if a licable.
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:2.
Yes N/A (Not
(Initial) A licable)
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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 48034-0667
(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 "AcreemenF) and identified as the
"Temporary Construction Area" on the attached Exhibit "B" (the "Temoorarv
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 Imorovements"), 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 "Exlsting Bus Stop Area" on
Exhibit "C" attached to and made a part of this Agreement along U.S. 41 (the "Existinc
Bus Stoo Area") and replace the same with new sod (the "Existinc Bus Stoo
Imorovements", which together with the Sidewalk Improvements are collectively
hereinafter referred to as the "Imorovements").
This Agreement will automatically terminate upon the earlier to occur of: (i) 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
1686
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
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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.1691041.4
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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 including Personal Injury:
each person $3,000,000
each occurrence $3,000,000
Property Damage:
each accident
aggregate
$3,000,000
$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 Licensor'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
delivered personally, (ii) three (3) business days after being deposited in the United
States mail by certified mail, return receipt requested, postage prepaid, and properly
addressed, or (iii) one (1) business day after being deposited with a reputable ovemight
delivery service (e.g., Federal Express), guaranteeing and sent for next business day
delivery, with delivery charges prepaid and properly addressed. For the purposes hereof,
the addresses of the parties, until further notice, will be as follows:
OAKLAND.1691041.4
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LICENSOR:
Waterside at Pelican Bay LLC
c/o The Forbes Company
100 Galleria OfficeCentre, 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.
Collier County
Attn: Michelle Arnold, Director of
Alternative Transportation Modes
2885 S. Horseshoe Drive
Naples, Florida 34104
LICENSEE:
This Agreement and the obligations of the parties hereunder are govemed 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.1691041.4
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IN WITNESS WHEREOF, Licensor and Licensee have caused these presents
to be executed in their respective names as of the :.J?11! day ofdcrd.dEJ( 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.
Si nness
q 1.1-
Print Name: (" - J . ~.tk
~~~~~J_
Print Name:;;F -FJ~ /#'"~
WATERSIDE AT PELlC~BAY LLC,
· De"""" ~'i:' I;"" om"""
By: LJ~
Nathan Forbes
Its: Authorized Signatory
N \~ O-c.~ COLLIER COUNTY,
-:t<>vJ) a political subdivis' n of the State of Florida
d<t-
By:
Donna 'Fiala
Its:
rheirm:::an
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