Agenda 12/12/2023 Item # 6A (Public Petition to the Management Agreement for Pelican Bay Community Park Pickleball Project)12/12/2023
COLLIER COUNTY
Board of County Commissioners
Item Number: 6.A
Doc ID: 27364
Item Summary: Public Petition by Susan Zehnder on an addendum to the Management Agreement for the Pelican
Bay Community Park Pickleball Project.
Meeting Date: 12/12/2023
Prepared by:
Title: Communications, Govt. & Public Affairs Director – County Manager's Office
Name: John Mullins
12/06/2023 10:07 AM
Submitted by:
Title: Communications, Govt. & Public Affairs Director – County Manager's Office
Name: John Mullins
12/06/2023 10:07 AM
Approved By:
Review:
County Manager's Office Amy Patterson County Manager Review Completed 12/06/2023 11:06 AM
Board of County Commissioners Geoffrey Willig Meeting Pending 12/12/2023 9:00 AM
6.A
Packet Pg. 152
Request to Spea k under Pu blic Petition
(Please print clearlY)
Name:Su :)+/v'ZEan,DER
Address:54 T RottA Carup r
PL E5 FL 3?rro
Phone:'7o j - 3ao -?37
Date of the Boa rd Meetin q vou wish to S ak:i z -i z-23
Mus! indicate 'Yes" or *No"'
ls this subject matter under litigation at this time? 'A/O
ls this subject matter an ongoing Code Enforcement case? '1lO
Note: ll either answer is "Yes", the Board will hear the item but will have no
?-rbcussion regarding the item after it is presented'
Plea lai deta rea u are a
paqe if neces sarv) .
I am requesting the opportunity to speak at the BOCC Meeting to request
the addition of the following Addendum to the Management Agreement for
the Pelican Bay Community Park Pickleball Project.
Proposed Addendum:
Members of the Public shall have access to 50% of the Pickleball Courts
during the same days and hours as members of the Foundation
Please ex olain in de larT the action vou are a skinq the C ommission to take
stin eak I
h
additional paqe if nece ss arv):
The cornerstone of this project is the County's promise of public access to
50% of the pickleball courts. lf this central element of the project is not clearly
defined in the Management Agreement, it opens the door to disputes over
public access for the next 30 years. The Management Agreement does not
explicitly guarantee the public 50% access to the pickleball courts, this is why
an addendum is required.
6.A.1
Packet Pg. 153 Attachment: Zehnder Public Petition 12-12-23 (27364 : Public Petition by Susan Zehnder on Pelican Bay pickleball court use)
6.A.2
Packet Pg. 154 Attachment: PBCPintro (27364 : Public Petition by Susan Zehnder on Pelican Bay pickleball court use)
6.A.2
Packet Pg. 155 Attachment: PBCPintro (27364 : Public Petition by Susan Zehnder on Pelican Bay pickleball court use)
6.A.2
Packet Pg. 156 Attachment: PBCPintro (27364 : Public Petition by Susan Zehnder on Pelican Bay pickleball court use)
6.A.2
Packet Pg. 157 Attachment: PBCPintro (27364 : Public Petition by Susan Zehnder on Pelican Bay pickleball court use)
6.A.2
Packet Pg. 158 Attachment: PBCPintro (27364 : Public Petition by Susan Zehnder on Pelican Bay pickleball court use)
6.A.2
Packet Pg. 159 Attachment: PBCPintro (27364 : Public Petition by Susan Zehnder on Pelican Bay pickleball court use)
PELICAN BAY COMMUNITY PARK
PICKLEBALL PROJECT
Request for an Addendum to the Management Agreement:
“Members of the Public shall have access to 50%
of the pickleball courts during the same days and
hours as members of the Foundation.”
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6.A.3
Packet Pg. 160 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
Board of County Commissioners Meeting 8/22/23
The Project’s Delivery Team reiterated
the County’s promise of
public access to 50% of the pickleball courts
in their verbal presentations and PowerPoint slides
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6.A.3
Packet Pg. 161 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
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6.A.3
Packet Pg. 162 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
The County Promised Public Access
to 50% of the Pickleball Courts
The Management Agreement does not contain any
reference to Public access to 50% of the pickleball courts.
What does the Agreement say about access to the
pickleball courts?
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6.A.3
Packet Pg. 163 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
The Management Agreement: Page 2, Item 3
Defines Pickleball Court Usage
“No more than 50% of the pickleball courts shall be for usage by
members of the Foundation.”
“The Foundation shall maintain records documenting this usage.”
The PRR shows that this language was written by the PBF. Allowing the PBF
to maintain its own usage records is a conflict of interest.
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6.A.3
Packet Pg. 164 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
The Management Agreement: Page 2, Item 3
Defines Pickleball Court Usage
“No more than 50% of the pickleball courts shall be for
usage by members of the Foundation,” only specifies PBF
access to the courts.
The Agreement contains no guarantee of any level of
public access to the pickleball courts.
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6.A.3
Packet Pg. 165 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
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Impact of Court Rentals to Ritz Carlton:
The Foundation could rent 5 courts to the Ritz for the entire season, use 10 courts
for Foundation members (no more than 50%), leaving only 5 courts for public.
6.A.3
Packet Pg. 166 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
“...we'll have more than 50% usage…”
The PBF Chair informed PBF members that a detailed
operations analysis on court usage had been conducted.
He reiterated high confidence that PBF members would
have a court usage rate exceeding 50%.
The only way to give PBF members more than 50% court
usage is to reduce public usage below 50%.
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6.A.3
Packet Pg. 167 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
“...we'll have more than 50% usage…”
The PBF intends to control & limit public access.
The PBF’s requested language for the Agreement allows
them to achieve their goal of, “more than 50% usage.”
The PBF’s requested language was used in the Agreement
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6.A.3
Packet Pg. 168 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
Close the Loopholes
The recent departure of Jim Hoppensteadt reminds us that
Foundation and County leadership is subject to change.
Verbal promises from the Foundation are not enforceable.
An addendum with an explicit guarantee of public access to
50% of the pickleball courts is crucial because this is a 30
year contract.
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6.A.3
Packet Pg. 169 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
Proposed Addendum
Members of the Public shall have access
to 50% of the Pickleball Courts
during the same days and hours
as members of the Foundation
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6.A.3
Packet Pg. 170 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
Why “Same days and hours?”
It is important for the addendum to specify,
“Same days and hours”
to prevent the Foundation from limiting public access
during preferred days and hours.
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6.A.3
Packet Pg. 171 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
Jeffrey A. Klatzkow, Collier County Attorney
Our County Attorney has no issue with the proposed
language, but needs to receive a request from the County
Manager’s office to move forward.
Without this addendum, the public will not get the 50%
access that the County intended.
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6.A.3
Packet Pg. 172 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
Loopholes, PBF Transcript
The next section contains:
Quotes from the transcripts of two PBF meetings
Loopholes that will allow the PBF to “Game the system”
“Default” and “Entire Agreement” clauses in the Agreement
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6.A.3
Packet Pg. 173 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
Does the Foundation Plan to Control Public Access?
Transcripts of two recent Pelican Bay Foundation meetings
show that the Foundation Chair assured Foundation
members that, “...we’ll have more than 50% usage.”
The only way to give Foundation members more than 50%
usage of the pickleball courts is to reduce public usage
below 50% by exploiting loopholes in the Agreement.
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6.A.3
Packet Pg. 174 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
Does the Foundation Plan to Control Public Access?
On 7/24/23, The Foundation held a meeting for its members about the project. A member asked why the original plan of 10 private courts and 10 public courts was replaced by the new plan that requires a tracking system to calculate and manage court usage data.Foundation member:“The private access to 10 of the courts seems to be off the table now, and Pelican Bay access to these courts will just have to somehow be managed by the Foundation?”
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Packet Pg. 175 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
Does the Foundation Plan to Control Public Access?
Foundation Chair, Mike Ruffalo answered, “On the access
to the courts; we’ve actually done some pretty detailed
operations analysis on how to actually maximize the usage
for Pelican Bay members. We think we’re going to end up
getting way more than 10 courts worth of usage if we
manage it the way I described. I want to give us the chance
to use more than 10 of the courts, to be honest.”
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6.A.3
Packet Pg. 176 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
Does the Foundation Plan to Control Public Access?
Two weeks later, on 8/8/23, the Foundation held another
meeting for its members and a similar question was asked.
"We were originally told that Foundation members would have
private access to 10 of the 20 courts. Then, 2 weeks ago, at
the Foundation board meeting, we were told that we would
share the courts w/non Foundation members and would get,
quote, 'Way more than 50% usage of the courts'."
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6.A.3
Packet Pg. 177 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
“We’ve given ourselves operational control…”
The Foundation Chair answered: "The reason we chose to call it
50% is that we didn't want to limit ourselves to just 10 courts...On a
practical basis, if we choose to run it strictly 10 and 10 during
season, that's up to us. We've given ourselves operational control,
which the County was reluctant to do. But, they have basically given
us operational control now. So, I have very high confidence that
what I said at the last meeting, that we'll have more than 50%
usage, in practice will actually occur."
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6.A.3
Packet Pg. 178 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
Does the Foundation Plan to Control Public Access?
The original plan of 10 public courts and 10 private courts
would not have required a court usage data system that is
vulnerable to manipulation.
The Foundation courts and the Public courts could still
have agreed to collaborate on sharing certain courts for
specific skill levels.
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6.A.3
Packet Pg. 179 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
Does the Foundation Plan to Control Public Access?
Why would the Foundation choose to spend time and
money to implement and manage a usage data system?
Because it will allow the Foundation to exploit loopholes
to limit public usage and expand Foundation usage.
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6.A.3
Packet Pg. 180 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
Important clauses in the Agreement
This section contains details of two important clauses in the
Management Agreement:
The Entire Agreement Clause
The Default Clause
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6.A.3
Packet Pg. 181 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
Entire Agreement Clause: Page 7, Item 25
Some may say, the County and the Foundation have worked on this deal for years, we have a good relationship, so we can trust that they will keep their promise that the public will have access to 50% of the courts; even if it is not specified in the Agreement.
The Management Agreement contains an Entire Agreement clause that cancels ALL prior written and verbal agreements that are not contained in the Agreement. This includes all verbal promises from the Foundation to County officials.
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6.A.3
Packet Pg. 182 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
Default clause: Page 5, Item 14
The Management Agreement includes a Default clause
stating that failure to comply with any material covenant or
condition of the Agreement shall constitute a Default.
Public access to 50% of the pickleball courts is not clearly
stated as a material covenant or condition in the
Agreement, so a default action would be difficult to enforce.
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6.A.3
Packet Pg. 183 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
Default clause: Page 5, Item 14
If the County initiated a default action against the
Foundation regarding public access to the pickleball courts,
the Foundation could reasonably assert that if the County
thought that guaranteeing the public 50% access to the
pickleball courts was important, it should have been
explicitly stated as a material covenant or condition in the
Management Agreement.
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6.A.3
Packet Pg. 184 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
Loopholes to Limit Public Access
This section provides details on several loopholes the
Foundation may use to control and limit public access
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6.A.3
Packet Pg. 185 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
Public Records Request: A Red Flag
An email in the PRR from a County official described a
method that the Foundation could use to manipulate usage
data to limit public access to the courts.
The PRR contains no responses to this email from the
Delivery Team. The PRR contains no discussion about
ensuring that the contract guarantees 50% public access.
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6.A.3
Packet Pg. 186 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
Usage Data Calculations:
Page 2, section 3 of the Management Agreement
Risk of Usage Data Manipulation:
The Agreement allows the Foundation to track and manage
its own usage data to support its claim of using no more
than 50% of the pickleball courts.
The Agreement says that data will be aggregated monthly,
but does not say how frequently it will be collected; hourly,
daily, weekly?
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6.A.3
Packet Pg. 187 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
Usage Data Calculations:
Page 2, section 3 of the Management Agreement
Risk of Usage Data Manipulation:
The Foundation could choose to collect usage data at
selected times to stay under the 50% maximum, then allow
Foundation members expanded use at all other times.
This could allow the Foundation to limit public court usage
during preferred hours and days. This is the method
described in an email from a County Official in the PRR.
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6.A.3
Packet Pg. 188 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
Usage Data Calculations:
Page 2, section 3 of the Management Agreement
Risk of Usage Data Manipulation:
Each player would use a card or QR code to enter the courts.
The Foundation could allow its members to use either a
Foundation ID or a Public ID to enter the pickleball courts.
Foundation usage data will be inaccurate if Foundation
members are given the option to use a Public ID.
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6.A.3
Packet Pg. 189 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
Court Rentals & Usage Data Calculations:
Page 2, section 3 of the Management Agreement
Court Rentals:
At the August Commissioners meeting, Commissioner Hall stated that
he plays tennis at the PBCP. He noted that the Foundation has had a
standing reservation for several tennis courts, for the entire season, for
many years. This often limited the number of tennis courts available to
the public. The concessionaire benefitted through regular rental
income, the Foundation benefitted by having reserved tennis courts,
but the public did not benefit from this arrangement.
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6.A.3
Packet Pg. 190 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
Court Rentals & Usage Data Calculations:
Page 2, section 3 of the Management Agreement
The Agreement allows the Foundation to earn revenue through
pickleball court rentals. For example, the Foundation could allow
the Ritz Carlton to have a standing reservation for 5 courts, for
the entire season. The Foundation could still use 10 of the 20
courts for its members, and not exceed the 50% maximum in the
Agreement.
The Foundation could then rent 5 courts to the Ritz, leaving only
5 courts for the public -not 50% as promised by the County.
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6.A.3
Packet Pg. 191 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
Close the Loopholes
These are just a few of the loopholes that would allow the
Foundation to limit public usage of the pickleball courts,
while maintaining technical compliance with the
Management Agreement.
If Foundation members demand expanded private usage,
Foundation lawyers will aggressively search for loopholes
in the Agreement to meet that demand.
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6.A.3
Packet Pg. 192 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
Alcohol and Pickleball Lighting
It is expected that the Foundation will request an addendum to
add full-time alcohol sales and lighting for the pickleball courts
to enhance its revenue stream.
Will the County approve the Foundation’s requested
addendum; yet refuse to implement an addendum to protect
public access to the pickleball courts for the next 30 years?
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6.A.3
Packet Pg. 193 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by
10 Public Courts & 10 Private Courts
The original plan of 10 public courts and 10 private courts would not
have required a court usage data system that is vulnerable to
manipulation. The Foundation courts and the Public courts could still
have agreed to collaborate on sharing certain courts for specific skill
levels. Why would the Foundation choose to spend time and money to
implement and manage a usage data system? Because it will allow the
Foundation to exploit loopholes to limit public usage and expand
Foundation usage.
It would be in the best interest of the public to return to the original plan
of 10 public courts and 10 private courts.35
6.A.3
Packet Pg. 194 Attachment: PBCP BOCC 12_3_23 (27364 : Public Petition by