Backup Documents 02/24/2009 Item #10C10C
MEMORANDUM
Date: February 26, 2009
To: Kevin Dugan
Project Manager, Trans /TECM
From: Martha Vergara, Deputy Clerk
Minutes & Records Department
Re: Wetland Mitigation and Panther Habitat Unit
Agreement
Barron Collier Partnership, LLC
Attached is the original document, referenced above (Agenda Item
#10C), approved by the Board of County Commissioners on
Tuesday, February 24, 2009.
After recording please return the original to the Minutes and
Records Department.
If you should have any questions, please contact me at 252 -7240.
Thank you.
M
WETLAND MITIGATATION AND PANTHER HABITAT UNIT AGREEMENT
THIS WETLAND MITIGATION AND PANTHER HABITAT UNIT AGREEMENT
(hereinafter referred to as the "Agreement') is made and entered into this 24`h day of February,
2009, by and between Collier County, a political subdivision of the State of Florida (the
"County "), and the Barron Collier Partnership, LLLP, a Florida limited liability limited
partnership (`Barron Collier ").
RECITALS
WHEREAS, the County and Barron Collier, as co- applicants, have jointly filed permit
applications for expansion of segments of the Oil Well Road right -of -way (the "Roadway
Expansion ") and for approval of related mitigation of the planned expansion on wetlands and
Florida panther habitat; and
WHEREAS, as a condition of obtaining the necessary State and Federal permits prior to
commencing construction of the Oil Well Road project, the County is required to obtain both
wetland mitigation and panther habitat unit mitigation credits; and
WHEREAS, in order to secure the necessary wetland mitigation and panther habitat unit
credits, Barron Collier and the County, have jointly applied for governmental permits for
wetlands restoration, enhancement, maintenance, and monitoring (the "Mitigation Plan ") for
approximately 529 acres within Camp Keais Strand (the "Mitigation Area "), which permits
include approval of a mitigation plan for, a Section 404 permit (Application number 2006-7018 -
IP) with the U.S. Army Corps of Engineers (the "USACE ") (the "USACE Permit') and an
Environmental Resource Permit application with the South Florida Water Management District
(the "SFWMD ") (pending under application number 061010 -15) (the "ERP Permit ")(the
USACE Permit and ERP Permit hereinafter collectively called the "Roadway Permits "); and
WHEREAS, the County wishes to purchase 30.86 wetlands mitigation credits that will
be generated by the Mitigation Area and Mitigation Plan (the "Wetlands Credits ") pursuant to
the terms and conditions of this Agreement and subject to the requirements of the Mitigation
Plan; and
WHEREAS, with the approval of USACE and United States Fish and Wildlife Service
( "USFWS "), Barron Collier has the ability to create 2,000 panther habitat unit mitigation credits
(the "Panther Credits ") by dedicating primary zone panther habitat area owned by Barron Collier
to the USFWS as a conservation easement area; and
WHEREAS, the County may wish to purchase up to 2,000 Panther Credits from Barron
Collier pursuant to the terms and conditions of this Agreement, with the final number of Panther
Credits required by the County to be later determined by USFWS.
WITNESSETH
NOW, THEREFORE, in consideration of Ten Dollars (10.00) and other good and
valuable consideration exchanged amongst the parties, and in consideration of the covenants
contained herein, the parties agree as follows:
1. All of the above RECITALS are true and correct and are hereby expressly
incorporated herein by reference as if set forth fully below.
10C
2. CONDITIONS TO SALE; ADDITIONAL CREDITS. The parties
acknowledge that the Mitigation Plan, Wetlands Credits, and Panther Credits are subject to
review and approval by third -party governmental entities under the Roadway Permits, and agree
that Barron Collier's obligation to convey the Wetlands Credits and Panther Credits is
conditioned on such approval. Both parties shall exercise a good faith and diligent effort to
secure such approval. With respect to the Wetlands Credits and Mitigation Plan, Barron Collier
shall prepare and submit a "time zero" report for approval by SFWMD following completion of
the wetlands restoration and enhancement activities (the "Time Zero Report"). The Wetlands
Credits and Mitigation Plan shall be deemed approved upon SFWMD's written acceptance of the
Time Zero Report. The Panther Credits shall be deemed approved upon recordation of a
conservation easement (from Barron Collier to USFWS) over primary zone panther habitat area
(the "Conservation Easement "). To the extent necessary, the County shall cooperate with Barron
Collier in securing such approval, including providing such information and executing such
applications, petitions, and requests as may reasonably be necessary. This Agreement is limited
to the specific number of Wetlands Credits and Panther Credits enumerated herein. Any excess
panther or wetlands mitigation credits above and beyond the Wetlands Credits and Panther
Credits that are created by virtue of Barron Collier's fulfillment of its obligations under this
Agreement shall remain the sole and exclusive property of Barron Collier. In the event the
Panther Credits and/or Wetlands Credits are not sufficient to mitigate the impacts of the Oil Well
Road expansion (as reflected in the initial permit applications or in any future permit
modification), the County shall be responsible for separately securing any additional required
panther or wetlands mitigation credits.
3. COUNTY ALTERNATIVE PHU SOURCE. The County expects to seek
USACE and USFWS approval for an undetermined number of panther habitat unit mitigation
credits (the "County PHUs ") created by restoring, enhancing, maintaining, and monitoring
wetlands and habitat on a parcel of County -owned property commonly referred to as the "Starnes
Parcel." In the event the County is able to secure final approval of County PHUs on the Starnes
Property within one (1) year from the Effective Date of this Agreement, then -the following terms
shall apply:
A. The County PHUs (up to a maximum of 2,000 County PHUs) will be irrevocably
"banked" and reserved by the County for the sole and exclusive benefit of Barron Collier,
including without limitation the right to sell them under such terms as are desired by
Barron Collier, in its sole discretion. In the event the number of County PHUs exceeds
the number of Panther Credits required to mitigate the Oil Well Road expansion (as later
determined by USFWS), then the excess County PHUs shall remain the property of the
County and shall not be subject to the terms of this Agreement; and
B. The conveyance, assignment, and banking of the County PHUs for the benefit of
Barron Collier shall serve as an "in- kind" exchange (in lieu of the County's obligation to
pay the corresponding portion of the Purchase Price described in Paragraph 4.13, below)
for the corresponding number of Panther Credits being purchased by the County under
this Agreement. If the number of County PHUs is less than the required number of
Panther Credits, then the County shall pay the corresponding portion of the Purchase
Price for the difference between the required number of Panther Credits and the County
PHUs. By way of example, if the County creates 1,000 County PHUs and is required by
USFWS to secure 2,000 Panther Credits, then the County shall pay Barron Collier the
corresponding cash portion of the Purchase Price for 1,000 Panther Credits and shall bank
and reserve the 1,000 County PHUs for the benefit of Barron Collier in lieu of the
Page 2 of 7
corresponding pro -rata portion of the Purchase Price cash payment allocable to the 1,000 10
County PHUs.
As a condition to the County PHUs serving as an "in- kind" payment to Barron Collier for the
corresponding number of Panther Credits, the County PHUs: 1. Must receive final approval by
all applicable regulatory or governmental agencies within one (1) year after the Effective Date of
this Agreement; 2. must be subject to a USFWS conservation easement that obligates the County
to monitor and maintain the related habitat and wetlands without contribution from Barron
Collier; 3. must be freely transferable and assignable for value at the sole discretion and direction
of Barron Collier; and 4. must otherwise have the characteristics, benefits, and value necessary to
fulfill the intent of this Paragraph 3 that the County PHUs serve as an in -kind payment for the
corresponding number of Panther Credits. The terms, obligations, and conditions of this
Paragraph 3 shall survive transfer of the Wetlands Credits and the Panther Credits to the County
and payment to Barron Collier of the Purchase Price.
4. PURCHASE PRICE; PAYMENT. The estimated aggregate "Purchase Price"
for the Wetlands Credits and Panther Credits is Three Million Five Hundred Forty -Nine
Thousand Four Hundred and Eighty Dollars ($3,549,480). The estimated Purchase Price is
based on the following per -unit prices for the Wetlands Credits and the Panther Credits, and shall
be adjusted based on the actual number of Panther Credits required by USFWS to mitigate the
Oil Well Road expansion:
A. Wetlands Credits. The Wetlands Credits Purchase Price is Forty -Eight Thousand
Dollars ($48,000) per Wetlands Credit for a total of One Million Four Hundred Eighty -
One Thousand Two Hundred and Eighty Dollars ($1,481,280). Each of the 30.86
Wetlands Credits includes 8.96 "bundled" Panther Credits for a total of 276.5 bundled
Panther Credits. The 276.5 bundled Panther Credits are included in the Purchase Price
for the Wetlands Credits. Should the permitting agencies determine that approval of the
Roadway Permits (either in their current state or as subsequently modified) require more
than 30.86 Mitigation Credits, then Barron Collier may, in its sole discretion, agree to
assist in providing the additional Mitigation Credits to the County upon mutually
agreeable terms. In the case of such agreement, this Agreement shall be modified in
writing to reflect terms acceptable to the parties for the creation and sale of such
additional Mitigation Credits. In the event Barron Collier declines to provide such
additional Mitigation Credits, then the County shall be solely responsible for securing
same at its sole cost and expense. Any excess Mitigation Credits beyond the 30.86
credits contemplated by this Agreement created under the Roadway Permits shall inure to
the benefit of Barron Collier who may utilize such excess credits as it deems appropriate,
in its sole discretion
B. Panther Credits. For the remaining option to purchase up to 1,723.50 Panther
Credits that are not "bundled," the Purchase Price shall be $1,200 per Panther Credit, for
a total of Two Million Sixty -Eight Thousand and Two Hundred Dollars ($2,068,200). In
the event the permitting agencies determine that additional panther habitat unit mitigation
credits beyond the estimated 2,000 are needed to mitigate the impacts of the Oil Well
Road expansion, then the County will have the right to purchase such additional credits
from Barron Collier (to the extent that Barron Collier has additional credits available for
sale) at a per- credit cost of $1,200.
The Purchase Price for the Wetlands Credits shall be paid as follows: 1. One -half (1/2) shall be
paid upon approval of the permits for the Mitigation Plan and Barron Collier's payment of the
Page 3 of 7
corresponding performance bond; and 2. the remaining one -half (1/2) shall be paid within ten
(10) days following SFWMD's written acceptance of the Time Zero Report. The Purchase Price
for the Panther Credits shall be based on the actual number of Panther Credits required by
USFWS, and shall be paid one (1) year from the Effective Date if the County is unable to satisfy
all conditions for the creation, assignment, conveyance, and banking of the County PHUs (as
enumerated in Paragraph 3, above). In the event the County PHUs are so created, assigned, and
conveyed, and thereafter fail to satisfy the conditions stated in Paragraph 3, above, then the
corresponding portion of the Purchase Price shall be paid to Barron Collier within ten (10) days
after Barron Collier's notice to the County of such failure. The foregoing term shall survive
transfer of the Wetlands Credits and the Panther Credits to the County and payment to Barron
Collier of the Purchase Price.
5. DIVISION OF ROADWAY PERMIT RESPONSIBILITIES. The parties
agree and acknowledge that the activities and improvements contemplated by the Roadway
Permits relate to both the construction of right -of -way improvements by Collier County and to
the restoration, enhancement, and monitoring by Barron Collier of lands necessary for the
creation of mitigation credits for the benefit of the Roadway Expansion. The parties wish to
define their respective obligations with respect to the Roadway Permits, and to provide for
modification of the Roadway Permits at the earliest possible opportunity to remove Barron
Collier as a named permittee. The parties accordingly agree as follows:
A. Barron Collier Responsibilities. Barron Collier shall be responsible, at its sole
cost and expense, for satisfying all obligations under the Roadway Permits to create
Mitigation Credits within the Mitigation Area, including without limitation the
restoration, recreation, maintenance, and monitoring of related wetlands habitat and
conditions; the granting of a Conservation Easement in a form acceptable to the SFWMD
and USACE; and providing related financial assurances (collectively the "Mitigation
Activities "). Barron Collier shall commence the Mitigation Activities upon occurrence of
both of the following: 1. The Roadway Permits have been issued and are final; and 2.
receipt by Barron Collier of a copy of the County's written Notice to Proceed directing
the County's contractor to commence construction of the Roadway Expansion
improvements.
B. County Responsibilities. The County shall be responsible, at its sole cost and
expense, for satisfying all obligations under the Roadway Permits related to construction
of the Roadway Expansion, including without limitation the construction of all right -of-
way improvements; the posting of any necessary performance bond, security, or
alternative assurances for completion of said improvements; and the costs of securing
approval and acceptance of the improvements (collectively the "Expansion Activities ").
The County shall require that each contractor and subcontractor who provides services
towards construction of the Roadway Expansion carry property damage and public
liability insurance coverage in the following amounts with the County, Barron Collier,
and Ave Maria Development, LLLP, named as additional insured parties (the "Required
Insurance "):
Auto /General Liability $2,000,000
Combined Single Limit
$1,000,000
Any One Occurrence
$1,000,000
Personal Injury
$500,000
Property Damage
Page 4 of 7
10C
The Required Insurance policy binders shall reflect that each additional insured party shall be 10
indemnified on a primary and non - contributory basis utilizing an ISO standard endorsement at
least as broad as CG 2010 (11185), (policy or endorsement will include coverage for ongoing
operations as well as products and completed operations) and shall include a waiver of
subrogation clause in favor of each additional insured party. The County shall secure and
provide copies of the corresponding policies for the Required Insurance to Barron Collier within
ten (10) days following Barron Collier's written request for same.
Upon completion of the Mitigation Activities and approval /acceptance thereof by SFWMD, the
parties will request for the ERP Permit to be modified to remove the Mitigation Area and Barron
Collier therefrom and to reflect the County as the sole permittee for the construction, operation,
and maintenance of the remaining improvements associated with the Oil Well Road project. The
parties agree to fully cooperate in so modifying the ERP Permit.
Both parties agree that as co- applicants for the ERP Permit, each retains the right to accept or
reject the final permit and conditions. Should either party withdraw from the ERP Permit
application, the terms of this Agreement shall terminate.
Legal Matters
6. This Agreement shall not be constructed or characterized as a development
agreement under the Florida Local Government Development Agreement Act.
7. The burdens of this Agreement shall be binding upon, and the benefits of this
Agreement shall inure to, all successors in interest to the parties to this Agreement.
8. In the event state or federal laws are enacted after the execution of this
Agreement, which are applicable to and preclude in whole or in part the parties' compliance with
the terms of this Agreement, then in such event this Agreement shall be modified or revoked as
is necessary to comply with such laws, in a many which best reflects the intent of this
Agreement. The invalidity of one or more terms or conditions in this Agreement shall not affect
the validity of the remaining portion of the Agreement, provided that the material purposes of
this Agreement can be determined and effectuated.
9. Except as otherwise provided herein, this Agreement shall only be amended by
mutual written consent of the parties hereto or by their successors in interest. All notices and
other communications required or permitted hereunder shall be in writing and shall be sent by
Certified Mail, return receipt requested, or by a nationally recognized overnight delivery service,
and addressed to the parties as follows (or such other address of which a party hereto shall give
notice):.
For the County
Name /Title: County Manager
Address: 3001 Tamiami Trail, East
Naples, Florida 34112
Phone: 239 - 252 -8383
Fax: 239- 252 -4010
With copies to: Administrator, Transportation Division
Address: 2885 S. Horseshoe Drive
Page 5 of 7
Naples, Florida 34104
Phone: 239- 252 -8192
Fax: 239- 252 -2726
For Barron Collier:
Name /Title: David B. Genson; Vice President of Engineering
Address: 2600 Golden Gate Parkway; Naples, Florida 34105
Phone: 239 - 262 -2600
Fax: 239 - 403 -6808
With copies to:
George L. Varnadoe, Esquire
Cheffy Passidomo Wilson & Johnson, LLP
821 5th Avenue South
Naples, Florida 34102
Phone: 239 - 261 -9300
Fax: 239 - 261 -9782
Notice shall be deemed to have been given on the next successive business day to the date of the
courier, if sent by nationally recognized overnight delivery service, or if delivered by Certified
Mail, upon actual receipt.
10. Barron Collier shall execute this Agreement prior to it being submitted for
approval by the Board of County Commissioners. The Effective Date of the Agreement shall be
the date that it is approved by the Board of County Commissioners at a duly noticed public
hearing. In the event this Agreement has not been so approved by the Board of County
Commissioners within sixty (60) days after execution by Barron Collier, then it shall be deemed
terminated and rendered null and void. This Agreement shall be recorded by the County in the
Official Records of Collier County, Florida, within fourteen (14) days after the Effective Date.
Barron Collier shall pay all costs of recording this Agreement. The County shall provide a copy
of the recorded document to Barron Collier upon request.
11. In the event of any dispute under this Agreement, the parties shall attempt to
resolve such dispute first by means of the County's then - current Alternative Dispute Resolution
( "ADR ") Procedure, if any. Following the conclusion of such procedure, if any, either party may
file an action for injunctive relief in the Circuit Court of Collier County to enforce the terms of
this Agreement, and remedy being cumulative with any and all other remedies available to the
parties for the enforcement of the Agreement. This Agreement shall be interpreted without
regard to any presumption or other rule requiring interpretation against the party causing this
Agreement or any part thereof to be drafted.
12. This Agreement constitutes the entire agreement between the County and the
parties with respect to the activities noted herein. All prior representations, undertakings, and
oral agreements by or between the parties hereto with respect to the subject matter of this
Agreement are merged into, and expressed in, this Agreement, and any and all prior
representations, undertakings, and oral agreements by and between such parties with respect
thereto hereby are canceled. This Agreement is not intended to amend or modify any other
written Agreement between the parties with respect to the Oil Well Road project.
Page 6 of 7
10C
13. The individuals signing this Agreement on behalf of each party represents and
warrants that he or she has the full power and authority to execute this Agreement for the party
upon whose behalf he or she is executing same and that upon such execution, such party shall be
fully bound by each and every provision of this Agreement.
14. Nothing contained herein shall be deemed or construed to create between or
among any of the parties any joint venture or partnership nor otherwise grant to one another the
right, authority or power to bind any other party hereto to any agreement whatsoever. Unless
expressly stated herein to the contrary, nothing in this Agreement, whether express or implied, is
intended to confer any rights or remedies under or by reason of this Agreement on any persons
other than the parties and their respective legal representatives, successors and permitted assigns.
Nothing in this Agreement is intended to relieve or discharge the obligation or liability of any
third persons to any party to this Agreement, nor shall any provision give any third persons any
right of subrogation or action over or against any party to this Agreement.
15. This Agreement may be executed in separate counterparts, each of which when so
executed shall be an original, but all of which together shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executedby their appropriate officials, as of the date first above written.
Attest::
DW4 OHT E. BRO ' Clerk
By:;,
Jerk
Al 1riJ1:
67( - D0t�
KIM D. DAVIDSON
Z ST:
ti) '
KIM D. DAVIDSON
Corporate Seal
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
By:
Donna Fiala, Chairman
BARRON COLLIER PARTNERSHIP. LLLP
By..
,,J'uli'et C. Sproul, Ageift
Page 7 of 7
IOC
WETLAND MITIGATATION AND PANTHER HABITAT UNIT AGREEMENT
THIS WETLAND MITIGATION AND PANTHER HABITAT UNIT AGREEMENT
(hereinafter referred to as the "Agreement ") is made and entered into this 24`h day of February,
2009, by and between Collier County, a political subdivision of the State of Florida (the
"County "), and the Barron Collier Partnership, LLLP, a Florida limited liability limited
partnership ( "Barron Collier").
RECITALS
WHEREAS, the County and Barron Collier, as co- applicants, have jointly filed permit
applications for expansion of segments of the Oil Well Road right -of -way (the "Roadway
Expansion ") and for approval of related mitigation of the planned expansion on wetlands and
Florida panther habitat; and
e WHEREAS, as a condition of obtaining the necessary State and Federal permits prior to
commencing construction of the Oil Well Road project, the County is required to obtain both
h wetland mitigation and panther habitat unit mitigation credits; and
V G+
m O
° WHEREAS, in order to secure the necessary wetland mitigation and panther habitat unit
credits, Barron Collier and the County, have jointly applied for governmental permits for
wetlands restoration, enhancement, maintenance, and monitoring (the "Mitigation Plan") for
o approximately 529 acres within Camp Keais Strand (the "Mitigation Area "), which permits
c+7 V Y
include approval of a mitigation plan for, a Section 404 permit (Application number 2006-7018 -
c� IP) with the U.S. Army Corps of Engineers (the "USACE ") (the " USACE Permit") and an
Environmental Resource Permit application with the South Florida Water Management District
° m (the "SFWMD ") (pending under application number 061010 -15) (the "ERP Permit ")(the
USACE Permit and ERP Permit hereinafter collectively called the "Roadway Permits "); and
o�
V 'L
M tJ
CD o WHEREAS, the County wishes to purchase 30.86 wetlands mitigation credits that will
be generated by the Mitigation Area and Mitigation Plan (the "Wetlands Credits ") pursuant to
m o the terms and conditions of this Agreement and subject to the requirements of the Mitigation
Y Plan; and
o WHEREAS, with the approval of USACE and United States Fish and Wildlife Service
o ° ( "USFWS "), Barron Collier has the ability to create 2,000 panther habitat unit mitigation credits
o (the "Panther Credits ") by dedicating primary zone panther habitat area owned by Barron Collier
to the USFWS as a conservation easement area; and
0
WHEREAS, the County may wish to purchase up to 2,000 Panther Credits from Barron
G E
Collier pursuant to the terms and conditions of this Agreement, with the final number of Panther
C C
Credits required by the County to be later determined by USFWS.
T Pa
o WITNESSETH
Fa..�
o�
C d' Kl
a m NOW, THEREFORE, in consideration of Ten Dollars (10.00) and other good and
valuable consideration exchanged amongst the parties, and in consideration of the covenants
contained herein, the parties agree as follows:
1. All of the above RECITALS are true and correct and are hereby expressly
incorporated herein by reference as if set forth fully below.
10 C°
2. CONDITIONS TO SALE; ADDITIONAL CREDITS. The parties
acknowledge that the Mitigation Plan, Wetlands Credits, and Panther Credits are subject to
review and approval by third -party governmental entities under the Roadway Permits, and agree
that Barron Collier's obligation to convey the Wetlands Credits and Panther Credits is
conditioned on such approval. Both parties shall exercise a good faith and diligent effort to
secure such approval. With respect to the Wetlands Credits and Mitigation Plan, Barron Collier
shall prepare and submit a "time zero" report for approval by SFWMD following completion of
the wetlands restoration and enhancement activities (the "Time Zero Report"). The Wetlands
Credits and Mitigation Plan shall be deemed approved upon SFWMD's written acceptance of the
Time Zero Report. The Panther Credits shall be deemed approved upon recordation of a
conservation easement (from Barron Collier to USFWS) over primary zone panther habitat area
(the "Conservation Easement "). To the extent necessary, the County shall cooperate with Barron
Collier in securing such approval, including providing such information and executing such
applications, petitions, and requests as may reasonably be necessary. This Agreement is limited
r to the specific number of Wetlands Credits and Panther Credits enumerated herein. Any excess
panther or wetlands mitigation credits above and beyond the Wetlands Credits and Panther
Credits that are created by virtue of Barron Collier's fulfillment of its obligations under this
w Agreement shall remain the sole and exclusive property of Barron Collier. In the event the
Panther Credits and /or Wetlands Credits are not sufficient to mitigate the impacts of the Oil Well
Road expansion (as reflected in the initial permit applications or in any future permit
modification), the County shall be responsible for separately securing any additional required
cG panther or wetlands mitigation credits.
C3
3. COUNTY ALTERNATIVE PHU SOURCE. The County expects to seek
USACE and USFWS approval for an undetermined number of panther habitat unit mitigation
credits (the "County PHUs ") created by restoring, enhancing, maintaining, and monitoring
wetlands and habitat on a parcel of County -owned property commonly referred to as the "Starnes
Parcel." In the event the County is able to secure final approval of County PHUs on the Starnes
Property within one (1) year from the Effective Date of this Agreement, then -the following terms
shall apply:
A. The County PHUs (up to a maximum of 2,000 County PHUs) will be irrevocably
"banked" and reserved by the County for the sole and exclusive benefit of Barron Collier,
including without limitation the right to sell them under such terms as are desired by
Barron Collier, in its sole discretion. In the event the number of County PHUs exceeds
the number of Panther Credits required to mitigate the Oil Well Road expansion (as later
determined by USFWS), then the excess County PHUs shall remain the property of the
County and shall not be subject to the terms of this Agreement; and
B. The conveyance, assignment, and banking of the County PHUs for the benefit of
Barron Collier shall serve as an "in- kind" exchange (in lieu of the County's obligation to
pay the corresponding portion of the Purchase Price described in Paragraph 4.B, below)
for the corresponding number of Panther Credits being purchased by the County under
this Agreement. If the number of County PHUs is less than the required number of
Panther Credits, then the County shall pay the corresponding portion of the Purchase
Price for the difference between the required number of Panther Credits and the County
PHUs. By way of example, if the County creates 1,000 County PHUs and is required by
USFWS to secure 2,000 Panther Credits, then the County shall pay Barron Collier the
corresponding cash portion of the Purchase Price for 1,000 Panther Credits and shall bank
and reserve the 1,000 County PHUs for the benefit of Barron Collier in lieu of the
Page 2 of 7
10C
corresponding pro -rata portion of the Purchase Price cash payment allocable to the 1,000
County PHUs.
As a condition to the County PHUs serving as an "in- kind" payment to Barron Collier for the
corresponding number of Panther Credits, the County PHUs: 1. Must receive final approval by
all applicable regulatory or governmental agencies within one (1) year after the Effective Date of
this Agreement; 2. must be subject to a USFWS conservation easement that obligates the County
to monitor and maintain the related habitat and wetlands without contribution from Barron
Collier; 3. must be freely transferable and assignable for value at the sole discretion and direction
of Barron Collier; and 4. must otherwise have the characteristics, benefits, and value necessary to
fulfill the intent of this Paragraph 3 that the County PHUs serve as an in -kind payment for the
corresponding number of Panther Credits. The terms, obligations, and conditions of this
Paragraph 3 shall survive transfer of the Wetlands Credits and the Panther Credits to the County
and payment to Barron Collier of the Purchase Price.
c�
4. PURCHASE PRICE; PAYMENT. The estimated aggregate "Purchase Price"
for the Wetlands Credits and Panther Credits is Three Million Five Hundred Forty -Nine
c� Thousand Four Hundred and Eighty Dollars ($3,549,480). The estimated Purchase Price is
based on the following per -unit prices for the Wetlands Credits and the Panther Credits, and shall
be adjusted based on the actual number of Panther Credits required by USFWS to mitigate the
Oil Well Road expansion:
o A. Wetlands Credits. The Wetlands Credits Purchase Price is Forty -Eight Thousand
Dollars ($48,000) per Wetlands Credit for a total of One Million Four Hundred Eighty -
One Thousand Two Hundred and Eighty Dollars ($1,481,280). Each of the 30.86
Wetlands Credits includes 8.96 "bundled" Panther Credits for a total of 276.5 bundled
Panther Credits. The 276.5 bundled Panther Credits are included in the Purchase Price
for the Wetlands Credits. Should the permitting agencies determine that approval of the
Roadway Permits (either in their current state or as subsequently modified) require more
than 30.86 Mitigation Credits, then Barron Collier may, in its sole discretion, agree to
assist in providing the additional Mitigation Credits to the County upon mutually
agreeable terms. In the case of such agreement, this Agreement shall be modified in
writing to reflect terms acceptable to the parties for the creation and sale of such
additional Mitigation Credits. In the event Barron Collier declines to provide such
additional Mitigation Credits, then the County shall be solely responsible for securing
same at its sole cost and expense. Any excess Mitigation Credits beyond the 30.86
credits contemplated by this Agreement created under the Roadway Permits shall inure to
the benefit of Barron Collier who may utilize such excess credits as it deems appropriate,
in its sole discretion
B. Panther Credits. For the remaining option to purchase up to 1,723.50 Panther
Credits that are not "bundled," the Purchase Price shall be $1,200 per Panther Credit, for
a total of Two Million Sixty -Eight Thousand and Two Hundred Dollars ($2,068,200). In
the event the permitting agencies determine that additional panther habitat unit mitigation
credits beyond the estimated 2,000 are needed to mitigate the impacts of the Oil Well
Road expansion, then the County will have the right to purchase such additional credits
from Barron Collier (to the extent that Barron Collier has additional credits available for
sale) at a per- credit cost of $1,200.
The Purchase Price for the Wetlands Credits shall be paid as follows: 1. One -half (1/2) shall be
paid upon approval of the permits for the Mitigation Plan and Barron Collier's payment of the
Page 3 of 7
l0C
corresponding performance bond; and 2. the remaining one -half (1/2) shall be paid within ten
(10) days following SFWMD's written acceptance of the Time Zero Report. The Purchase Price
for the Panther Credits shall be based on the actual number of Panther Credits required by
USFWS, and shall be paid one (1) year from the Effective Date if the County is unable to satisfy
all conditions for the creation, assignment, conveyance, and banking of the County PHUs (as
enumerated in Paragraph 3, above). In the event the County PHUs are so created, assigned, and
conveyed, and thereafter fail to satisfy the conditions stated in Paragraph 3, above, then the
corresponding portion of the Purchase Price shall be paid to Barron Collier within ten (10) days
after Barron Collier's notice to the County of such failure. The foregoing tern shall survive
transfer of the Wetlands Credits and the Panther Credits to the County and payment to Barron
Collier of the Purchase Price.
5. DIVISION OF ROADWAY PERMIT RESPONSIBILITIES. The parties
agree and acknowledge that the activities and improvements contemplated by the Roadway
co Permits relate to both the construction of right -of -way improvements by Collier County and to
M-, the restoration, enhancement, and monitoring by Barron Collier of lands necessary for the
creation of mitigation credits for the benefit of the Roadway Expansion. The parties wish to
Q� define their respective obligations with respect to the Roadway Permits, and to provide for
modification of the Roadway Permits at the earliest possible opportunity to remove Barron
-V Collier as a named permittee. The parties accordingly agree as follows:
C;,� A. Barron Collier Responsibilities. Barron Collier shall be responsible, at its sole
o cost and expense, for satisfying all obligations under the Roadway Permits to create
Mitigation Credits within the Mitigation Area, including without limitation the
restoration, recreation, maintenance, and monitoring of related wetlands habitat and
conditions; the granting of a Conservation Easement in a form acceptable to the SFWMD
and USAGE; and providing related financial assurances (collectively the "Mitigation
Activities "). Barron Collier shall commence the Mitigation Activities upon occurrence of
both of the following: 1. The Roadway Permits have been issued and are final; and 2.
receipt by Barron Collier of a copy of the County's written Notice to Proceed directing
the County's contractor to commence construction of the Roadway Expansion
improvements.
B. County Responsibilities. The County shall be responsible, at its sole cost and
expense, for satisfying all obligations under the Roadway Permits related to construction
of the Roadway Expansion, including without limitation the construction of all right -of-
way improvements; the posting of any necessary performance bond, security, or
alternative assurances for completion of said improvements; and the costs of securing
approval and acceptance of the improvements (collectively the "Expansion Activities ").
The County shall require that each contractor and subcontractor who provides services
towards construction of the Roadway Expansion carry property damage and public
liability insurance coverage in the following amounts with the County, Barron Collier,
and Ave Maria Development, LLLP, named as additional insured parties (the "Required
Insurance "):
Auto /General Liability $2,000,000
Combined Single Limit
$1,000,000
Any One Occurrence
$1,000,000
Personal Injury
$500,000
Property Damage
Page 4 of 7
10C
The Required Insurance policy binders shall reflect that each additional insured party shall be
indemnified on a primary and non - contributory basis utilizing an ISO standard endorsement at
least as broad as CG 2010 (11/85), (policy or endorsement will include coverage for ongoing
operations as well as products and completed operations) and shall include a waiver of
subrogation clause in favor of each additional insured party. The County shall secure and
provide copies of the corresponding policies for the Required Insurance to Barron Collier within
ten (10) days following Barron Collier's written request for same.
Upon completion of the Mitigation Activities and approval /acceptance thereof by SFWMD, the
parties will request for the ERP Permit to be modified to remove the Mitigation Area and Barron
Collier therefrom and to reflect the County as the sole permittee for the construction, operation,
and maintenance of the remaining improvements associated with the Oil Well Road project. The
parties agree to fully cooperate in so modifying the ERP Permit.
Both parties agree that as co- applicants for the ERP Permit, each retains the right to accept or
reject the final permit and conditions. Should either party withdraw from the ERP Permit
0o application, the terms of this Agreement shall terminate.
rn
M
t; Legal Matters
w
6. This Agreement shall not be constructed or characterized as a development
agreement under the Florida Local Government Development Agreement Act.
aG 7. The burdens of this Agreement shall be binding upon, and the benefits of this
CD Agreement shall inure to, all successors in interest to the parties to this Agreement.
8. In the event state or federal laws are enacted after the execution of this
Agreement, which are applicable to and preclude in whole or in part the parties' compliance with
the terms of this Agreement, then in such event this Agreement shall be modified or revoked as
is necessary to comply with such laws, in a many which best reflects the intent of this
Agreement. The invalidity of one or more terms or conditions in this Agreement shall not affect
the validity of the remaining portion of the Agreement, provided that the material purposes of
this Agreement can be determined and effectuated.
9. Except as otherwise provided herein, this Agreement shall only be amended by
mutual written consent of the parties hereto or by their successors in interest. All notices and
other communications required or permitted hereunder shall be in writing and shall be sent by
Certified Mail, return receipt requested, or by a nationally recognized overnight delivery service,
and addressed to the parties as follows (or such other address of which a party hereto shall give
notice):.
For the County:
Name /Title: County Manager
Address: 3001 Tamiami Trail, East
Naples, Florida 34112
Phone: 239- 252 -8383
Fax: 239- 252 -4010
With copies to: Administrator, Transportation Division
Address: 2885 S. Horseshoe Drive
Page 5 of 7
Naples, Florida 34104
Phone: 239 - 252 -8192
Fax: 239 - 252 -2726
For Barron Collier:
Name /Title: David B. Genson; Vice President of Engineering
Address: 2600 Golden Gate Parkway; Naples, Florida 34105
Phone: 239 - 262 -2600
Fax: 239 - 403 -6808
With copies to:
1oc
Notice shall be deemed to have been given on the next successive business day to the date of the
cj courier, if sent by nationally recognized overnight delivery service, or if delivered by Certified
Mail, upon actual receipt.
10. Barron Collier shall execute this Agreement prior to it being submitted for
approval by the Board of County Commissioners. The Effective Date of the Agreement shall be
the date that it is approved by the Board of County Commissioners at a duly noticed public
hearing. In the event this Agreement has not been so approved by the Board of County
Commissioners within sixty (60) days after execution by Barron Collier, then it shall be deemed
terminated and rendered null and void. This Agreement shall be recorded by the County in the
Official Records of Collier County, Florida, within fourteen (14) days after the Effective Date.
Barron Collier shall pay all costs of recording this Agreement. The County shall provide a copy
of the recorded document to Barron Collier upon request.
11. In the event of any dispute under this Agreement, the parties shall attempt to
resolve such dispute first by means of the County's then - current Alternative Dispute Resolution
( "ADR ") Procedure, if any. Following the conclusion of such procedure, if any, either party may
file an action for injunctive relief in the Circuit Court of Collier County to enforce the terms of
this Agreement, and remedy being cumulative with any and all other remedies available to the
parties for the enforcement of the Agreement. This Agreement shall be interpreted without
regard to any presumption or other rule requiring interpretation against the party causing this
Agreement or any part thereof to be drafted.
12. This Agreement constitutes the entire agreement between the County and the
parties with respect to the activities noted herein. All prior representations, undertakings, and
oral agreements by or between the parties hereto with respect to the subject matter of this
Agreement are merged into, and expressed in, this Agreement, and any and all prior
representations, undertakings, and oral agreements by and between such parties with respect
thereto hereby are canceled. This Agreement is not intended to amend or modify any other
written Agreement between the parties with respect to the Oil Well Road project.
Page 6 of 7
George L. Vamadoe, Esquire
Cheffy Passidomo Wilson & Johnson, LLP
M
821 51h Avenue South
Naples, Florida 34102
Phone: 239 - 261 -9300
w
. .
Fax: 239- 261 -9782
M
c-.7+
cf+
1oc
Notice shall be deemed to have been given on the next successive business day to the date of the
cj courier, if sent by nationally recognized overnight delivery service, or if delivered by Certified
Mail, upon actual receipt.
10. Barron Collier shall execute this Agreement prior to it being submitted for
approval by the Board of County Commissioners. The Effective Date of the Agreement shall be
the date that it is approved by the Board of County Commissioners at a duly noticed public
hearing. In the event this Agreement has not been so approved by the Board of County
Commissioners within sixty (60) days after execution by Barron Collier, then it shall be deemed
terminated and rendered null and void. This Agreement shall be recorded by the County in the
Official Records of Collier County, Florida, within fourteen (14) days after the Effective Date.
Barron Collier shall pay all costs of recording this Agreement. The County shall provide a copy
of the recorded document to Barron Collier upon request.
11. In the event of any dispute under this Agreement, the parties shall attempt to
resolve such dispute first by means of the County's then - current Alternative Dispute Resolution
( "ADR ") Procedure, if any. Following the conclusion of such procedure, if any, either party may
file an action for injunctive relief in the Circuit Court of Collier County to enforce the terms of
this Agreement, and remedy being cumulative with any and all other remedies available to the
parties for the enforcement of the Agreement. This Agreement shall be interpreted without
regard to any presumption or other rule requiring interpretation against the party causing this
Agreement or any part thereof to be drafted.
12. This Agreement constitutes the entire agreement between the County and the
parties with respect to the activities noted herein. All prior representations, undertakings, and
oral agreements by or between the parties hereto with respect to the subject matter of this
Agreement are merged into, and expressed in, this Agreement, and any and all prior
representations, undertakings, and oral agreements by and between such parties with respect
thereto hereby are canceled. This Agreement is not intended to amend or modify any other
written Agreement between the parties with respect to the Oil Well Road project.
Page 6 of 7
K
rn
M
w
M
er+
a+
CD0
'h
10C
13. The individuals signing this Agreement on behalf of each party represents and
warrants that he or she has the full power and authority to execute this Agreement for the party
upon whose behalf he or she is executing same and that upon such execution, such party shall be
fully bound by each and every provision of this Agreement.
14. Nothing contained herein shall be deemed or construed to create between or
among any of the parties any joint venture or partnership nor otherwise grant to one another the
right, authority or power to bind any other party hereto to any agreement whatsoever. Unless
expressly stated herein to the contrary, nothing in this Agreement, whether express or implied, is
intended to confer any rights or remedies under or by reason of this Agreement on any persons
other than the parties and their respective legal representatives, successors and permitted assigns.
Nothing in this Agreement is intended to relieve or discharge the obligation or liability of any
third persons to any party to this Agreement, nor shall any provision give any third persons any
right of subrogation or action over or against any party to this Agreement.
15. This Agreement may be executed in separate counterparts, each of which when so
executed shall be an original, but all of which together shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their appropriate officials, as of the date first above written.
Attest: _
DWIGHT.E.BR9QJ(, Clerk
B y;
.� 1
.Ve my Clerk
ATTEST:
64 dls � C/�lCd,9�
KIM D. DAVIDSON
ATT T:
KIM D. DAVIDSON
Corporate Seal
BOARD OF COUNTY COMMISSIONERS
COLLIER C?rTY, FLORID
By:
Donna Fiala, Chairman
BARRON COLLIER PARTNERSHIP, LLLP
B y
Juliet C. Sproul, Ag6nt
m 64 d l-
i.
Page 7 of 7