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Agenda 09/25/2012 Item #12A 9/25/2012 Item 12.A. EXECUTIVE SUMMARY This item to be heard immediately preceding the Closed Attorney-Client Session scheduled for 12:00 noon. That the Board consider a Settlement Agreement in the lawsuits entitled, Francis D. Hussey, Jr., et aL v. Collier County, et aL, Second District Court of Appeal Case No. 2D11-1224; and Sean Hussey, et aL v. Collier County, et aL, Second District Court of Appeal Case No. 2D11-1223., and authorize the Chairman to execute the Settlement Agreement. OBJECTIVE: To settle lawsuits entitled Francis D. Hussey, Jr., et al. v. Collier County, et al., Case No. 2D11-1224, and Sean Hussey, et al. v. Collier County, et al., Case No. 2D11-1223, currently pending the Second District Court of Appeal. CONSIDERATIONS: In 2008, Francis D. Hussey, Jr., Mary P. Hussey, and Winchester Lakes Corporation, a Florida corporation, filed an Inverse Condemnation suit seeking monetary damages from Collier County, the Honorable Charlie Crist, the Governor of the State of Florida, and the Florida Department of Community Affairs. The Plaintiffs contended that the designation of certain real property owned by them pursuant to a 2002 Growth Management Plan Amendment had the effect of precluding mining activities, thereby resulting in a substantial diminution in value of the real estate. The Complaint alleges damage claims, as of June 2002, in the amount of $67,300,000.00, and as of July 2007, in the amount of $91,500,000.00. The Plaintiffs also presented a claim for "Inverse Condemnation based on a regulatory taking of Plaintiffs' property," in an unspecified amount. The Florida Wildlife Federation and the Collier County Audubon Society were granted leave to intervene in the suit by the Court on April 29, 2009, and they thereafter served the Husseys with a Notice of Intent to Sue over Violations of the Endangered Species Act of 1973, Land Clearing of Primary Panther Habitat, RCW Habitat and Wood Stork Foraging Habitat. In 2009, Sean Hussey, the son of Francis and Mary Hussey, and others filed a second lawsuit in this matter. In February 2011, Judge Hayes signed a Final Order granting the County's motion to dismiss the second amended complaint with prejudice, and by separate Order dismissed the claims against the State. After a great deal of procedural maneuvering, this Order dismissing the County is presently on appeal with the Second District Court of Appeals, where it has been held in abeyance pending the parties attempt to reach a settlement. There was no appeal on the Order dismissing the State. There will be a staff presentation and ability for public comment during this item. At the conclusion of this item, the Board will go into a Closed Attorney-Client Session to discuss whether to accept the settlement offer. FISCAL IMPACT: No cost to the County. The County would receive certain future benefits resulting from this agreement, whose value is speculative at this time. GROWTH MANAGEMENT IMPACT: The Settlement Agreement contemplates changes made to the Future Land Use Map. LEGAL CONSIDERATIONS: This item is legally sufficient for Board action, and requires 4 votes for approval. -JAK Packet Page-1698- 9/25/2012 Item 12.A. RECOMMENDATION: That the Board of County Commissioners consider sign the attached Settlement Agreement relating to lawsuits entitled Francis D. Hussey, Jr., et al. v. Collier %> County, et al., Case No. 2D11-1224, and Sean Hussey, et al. v. Collier County, et al., Case No. 2D11-1223, currently pending the Second District Court of Appeal. PREPARED BY: Jeffrey A. Klatzkow, County Attorney Packet Page-1699- 9/25/2012 Item 12.A. COLLIER COUNTY Board of County Commissioners Item Number: 12.A. Item Summary: 11:30 a.m. Time Certain.This item to be heard immediately preceding the Closed Attorney-Client Session.That the Board consider a Settlement Agreement in the lawsuits entitled, Francis D. Hussey,Jr., et al. v. Collier County, et al., Second District Court of Appeal Case No. 2D11-1224; and Sean Hussey, et al. v. Collier County, et al., Second District Court of Appeal Case No. 2D11-1223., and authorize the Chairman to execute the Settlement Agreement. Meeting Date: 9/25/2012 Prepared By Name:NeetVirginia Title: Legal Assistant/Paralegal,County Attorney 9/19/2012 11:46:03 AM Submitted by Title: County Attorney Name: KlatzkowJeff 9/19/2012 11:46:04 AM Approved By Name: KlatzkowJeff Title: County Attorney Date: 9/19/2012 11:57:42 AM Name: GreenwaldRandy Title: Management/Budget Analyst,Office of Management&B Date: 9/19/2012 1:13:55 PM Name: KlatzkowJeff Title: County Attorney Date: 9/19/2012 2:21:49 PM Packet Page-1700- 9/25/2012 Item 12.A. Name: IsacksonMark Al Ilk Title: Director-Corp Financial and Mgmt Svs,CMO Date: 9/19/2012 2:59:11 PM Auk Packet Page-1701- 9/25/2012 Item 12.A. IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CASE NO.: 08-6933-CA FRANCIS D. HUSSEY, JR. and MARY P. HUSSEY, husband and wife; and WINCHESTER LAKES CORPORATION, a Florida corporation, Plaintiffs, vs. COLLIER COUNTY, a political subdivision of the State of Florida; THE HONORABLE CHARLIE CRIST, Governor of the State of Florida; and the FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS, Defendants. SETTLEMENT AGREEMENT THIS SETTLEMENT AGREEMENT (hereinafter referred to as the "Agreement") is made and entered into this of September, 2012, by and between Francis D. Hussey, Jr., Mary Pat Hussey, Sean Hussey, Trustee, Mike Boran, Co-Trustee of the SR 846 Land Trust, Ronald L. Brown, Co-Trustee of the SR 846 Land Trust, Joseph Bonness, President of Winchester Lakes, Inc., and HHH Investments, L.P. (the "Owner") and Collier County, Florida, a political subdivision of the State Florida(the "County"). WHEREAS, the Plaintiffs, FRANCIS D. HUSSEY, JR., and MARY P. HUSSEY, husband and wife, (the "Husseys") are the fee owners of certain real property Packet Page-1702- 9/25/2012 Item 12.A. within Collier County within an area of Collier County which is commonly referred to as "North Belle Meade;"and WHEREAS, at the time of acquisition, the Hussey Property was designated Agricultural on the zoning maps of Collier County. This zoning designation allowed agricultural use, rock mining, and low density residential housing development; and WHEREAS, the majority of land in the vicinity of the Hussey Property contains a tremendous quantity of DOT grade limestone rock. Rock mines bordered the Hussey Property to the east at the time of the Husseys' acquisition; and WHEREAS, the Plaintiff, WINCHESTER LAKES CORPORATION ("Winchester Lakes") holds a leasehold interest in the Subject Property and holds contractual rights to subsurface minerals including the underground rock and a contractual right to share in the proceeds of this action; and WHEREAS, on or about April 30, 2003, a Conditional Use Mining Application (CU-2003-AR-4093) was filed with the County for approval of rock mining use on behalf of the Husseys and Winchester Lakes, which was filed in a good faith expectation of a final use designation allowing rock mining on significant portions of the Hussey Property; and Packet Page-1703- 9/25/2012 Item 12.A. WHEREAS, the County failed to process the Conditional Use Mining Application (CU-2003-AR-4093), notwithstanding that the Application was filed prior to the effective date of any potential Growth Management Plan amendment which would have prohibited potential rock mining; and WHEREAS, as part of obligations imposed by the Department of Community Affair in the June 22, 1999 Final Order (AC 99-002), the County also adopted certain Growth Management Plan Amendments on May 9, 2000 mandating that an environmental assessment for consideration of greater environmental protection was to be made of the agricultural/rural areas of Collier County by June 22, 2002; and WHEREAS, after concluding its environmental assessment, the County adopted Ordinance No. 2002-32 on June 22, 2002. Within the North Belle Meade Area, the County also created sub-designations for certain lands. "Neutral Lands" retained substantially the same rights as before the passage of Ordinance No. 2002-32. "Receiving Lands" were designated to continue rock mining, residential uses, and density bonuses could be given under certain circumstances. "Sending Lands," were designated so that that rock mining would no longer be allowed. Any residential development was reduced to one unit per forty acres rather than one unit per five acres. In addition, the changes eliminated other rights, such as gated communities, planned unit developments with density clustering, and accessory uses such as golf and tennis facilities; and Packet Page-1704- 9/25/2012 Item 12.A. WHEREAS, due to an administrative challenge to the Florida Department of Community Affairs, as set forth above, Ordinance No. 2002-32 did not become effective until July 22, 2003; and WHEREAS, the vast majority of lands designated as "Sending" within the North Belle Meade by the Rural Fringe Amendments are 5 and 10 acre parcels suitable only for use as a single-family homesites. The reasonably anticipated uses of these smaller single family homesites remained essentially unchanged by their designation as "Sending;"and WHEREAS, the Rural Fringe Amendments within the North Belle Meade, as a practical matter, affected only the Husseys because theirs was the only parcel in North Belle Meade which was capable of viable rock mining and which was substantially affected by the amendments; and WHEREAS, Ordinance No. 2002-32 also had a provision to afford a hearing to property owners who were affected by a "Sending Land" designation. This provision allowed property owners — who were contiguous to Neutral Lands or Receiving Lands — to bring forth evidence to support a final designation of their properties to "Neutral" or "Receiving." According to notice sent by the County, the "Sending" designation was simply "preliminary" at the initial passage of Ordinance No. 2002-32, giving property owners an opportunity to be heard; and Packet Page -1705- 9/25/2012 Item 12.A. WHEREAS, in particular, the Husseys filed a Petition for a final designation on the Subject Property of "Receiving Lands" by way of a Petition for Amendment to the GMP as provided in Ordinance No. 2002-32. This was ultimately consolidated with and included with a separate staff- sponsored Petition to Amend the GMP to make final designations; and WHEREAS, Winchester Lakes and the Husseys proffered environmental, hydrological and geological data, to support that all or a significant portion of the Hussey Property should be redesignated "Neutral Land" or "Receiving Land" so as to achieve their mining and development goals; and WHEREAS, both the Husseys and the staff-sponsored Petition for GMP Amendment were denied on July 25, 2007. WHEREAS, thereafter, on August 7, 2007, the County sent notice that the pending Conditional Use Mining Application (CU-2003-AR-4093), which the County had held in abeyance four years,was deemed closed; and WHEREAS, the Husseys and Winchester Lakes have filed a claim against Collier County under Florida Statutes § 70.001 (the "Bert Harris Act"); and Packet Page-1706- 9/25/2012 Item 12.A. WHEREAS, the Husseys and Winchester Lakes have also filed claim challenging the constitutionality of the Rural Fringe Amendments pursuant to Article X Sec. 6(a) of the Florida Constitution; and WHEREAS, the parties wish the settle this dispute on the terms and conditions set forth below. NOW, THEREFORE, in consideration of the foregoing premises and the following mutual promises (the receipt and sufficiency of such consideration being acknowledged by all parties), 1. Recitals. The foregoing recitals are true and correct and are incorporated by reference. 2. Denial of Liability. No party is admitting wrongdoing, fault, or liability of any nature by entering into this Agreement. 3. Hussey Lands. A. Collier County will change the Future Land Use Map designation of the 526.12 acres listed on Exhibit A from Rural Fringe Mixed Use District(RFMUD) Sending Lands to Receiving Lands. Said Lands may be used for the purposes of quarry (earth mining), asphalt, and concrete batch-making plants, and the recycling of concrete and construction debris (facilities for the collection, transfer, processing and reduction of Amik Packet Page-1707- 9/25/2012 Item 12.A. solid waste) without the necessity of a conditional use permit. Collier County will support and not oppose any related applications to appropriate State and Federal Agencies. B. The Owner's property may be developed with uses, densities and intensities as allowed on other Receiving Lands within the North Belle Meade, and shall be subject to the same requirements and limitations as other Receiving Lands within the North Belle Meade, except that conditional use approval shall not be required for earth mining and asphalt and concrete batch-making plants. No other commercial or industrial uses will be allowed. The Owner waives the right to a Rural Village. C. The Owner shall entitle the Receiving Lands portion of the property as a Planned Unit Development(s) (PUD) and be subject to the public hearing and approval process set forth in the Collier County Land Development Code for a PUD rezone, notwithstanding that the residential density would be established by right using the Sending and Receiving criteria. D. Collier County will change the Future Land Use Map designation of the approximately 440 acres listed on Exhibit B to apply special regulations to those Sending Lands. Those special regulations will permit earth mining on those lands without the necessity of a conditional use permit, although an excavation permit will still be required. Excavation on the Exhibit B lands will not exceed 115 acres. TDRs from any excavated Exhibit B lands will be forfeited. Packet Page-1708- 9/25/2012 Item 12.A. E. Those special regulations will also prohibit residences within those lands, but allow for essential services allowed within agricultural zoned districts as identified in sections 2.01.03 A., D., and E. of the Land Development Code and all other Sending Lands uses. F. The Owner agrees to coordinate the development of its mining lakes and development lakes consistent with the Big Cypress Basin, County Stormwater and the Water Management District long range plans to ensure that they fulfill regional water supply, flooding and rehydration objectives. i. The Owner will allow pass through water through its lakes so long as it does not reduce the aesthetic appearance or water quality. G. Within 180 days following the court approval of the Settlement Agreement, the Owner shall dedicate to the County the one hundred and eighty(180) feet of right-of-way for the future Wilson Boulevard Extension (Blackburn Road) along the Owner's southern property line as depicted in Exhibit A. This will be at no cost to the County and the Owner will receive no impact fee credits for this dedication. The right of way will be transferred fee simple, subject to easements and reservations of record. Owner will be permitted access onto the future Wilson Boulevard Extension for residential and agricultural uses, with at least two tie-in locations that permit left turns in. Subject to the conditions of the commercial excavation permit, Owner will be permitted access onto the future Wilson Boulevard Extension for the hauling of excavated Packet Page-1709- 9/25/2012 Item 12.A. materials. County staff will have no objection to at least two tie-in locations that permit left turns in. H. For all other planned roadways and planned corridors currently shown on the Metropolitan Planning Organization's (MPO) 2035 Long Range Transportation Plan(LRTP)needs plan that are within or adjacent to Owner's property, the Owner shall commit to the following: i. The Owner shall reserve within its property, the right of way necessary to construct these roadways. a. The Owner agrees to donate right of way within its property for these roadways within 180 days of the County including these roadways in the 5 year Capital Improvement Plan(CIP/CIE) b. The transfer will be at no cost to the County and the Owner will receive no impact fee credits. c. The right of way will be transferred fee simple, subject to easements and reservations of record. ii. The Owner shall reserve within its property, the necessary water quality and water quantity treatment and attenuation for the planned roadways and corridors adjacent to their property. a. The Owner agrees to have the treatment and attenuation available within 3 years of the County including these roadways in the 5 year Capital Improvement Plan(CIP/CIE), so long as Packet Page-1710- 9/25/2012 Item 12.A. excavation has been permitted by all necessary governmental authorities. b. The County may extend the treatment and attenuation an additional 1,000 linear feet from the Owner's boundaries. The County will notify the Owner of the addition upon the completion of 30% design plans. c. The right to use these lakes for water management will be at no cost to the County and the Owner will receive no impact fee credits. However, any other water management costs, such as engineering fees, pipes, pumps, weirs and the like will be at the expense of the County and at no cost to the Owner. iii. The Owner shall provide fill at no cost to the County, for those portions of all roadways and corridors within or that abut its property. a. The Owner agrees to have the fill available within 3 years of the County including these roadways in the 5 year Capital Improvement Plan(CIP/CIE), so long as excavation has been permitted by all necessary governmental authorities. b. The Owner will be responsible to stockpile the fill and the County will be responsible to pick up and transport the fill at its sole cost and expense c. Excavation and the operation of the excavation facility for the stockpiling of fill and other materials may commence prior to the completion of the future Wilson Boulevard Extension. Packet Page-1711- 9/25/2012 Item 12.A. d. It is understood that a third party will be providing the road base for the future Wilson Boulevard Extension, and the fill for the future Wilson Boulevard Extension will only be that which is needed to complete that roadway, as currently designed,beyond what is has been pledged or is provided by third parties. iv. The Owner shall provide fill at a"base cost" to the County for those portions of roadways and corridors that are not adjacent to its property but are currently shown on the MPO's 2035 LRTP needs network and that the Owner is required, as a condition of its commercial excavation permit to use - whether now or in the future - as haul roads for access to the County's arterial network. a. The portions of these roads subject to the contribution of fill at base cost requirement will be limited geographically to Collier Boulevard on the west, Golden Gate Boulevard on the north, Everglades Boulevard on the east and I-75 on the south. The roads themselves do not include any portion of the aforementioned Collier Boulevard, Golden Gate Boulevard, Everglades Boulevard, I-75, or any portion of Wilson/Blackburn that lies to the east of the North/South alignment of the future Wilson Boulevard Extension. b. The Owner agrees to have the fill available within 3 years of the County including these roadways in the 5 year Capital Improvement Plan(CIP/CIE), so long as excavation has been permitted by all necessary governmental authorities. Packet Page-1712- 9/25/2012 Item 12.A. c. The"base cost" shall be defined as the Owner's cost to excavate and stockpile the fill. This will not include permitting and mitigation. i. The County reserves the right to pay the"base cost"with either impact fee credits or cash, so long as Owner has the current ability to utilize the impact fees credits. d. The County will be responsible to pick up and transport the fill at its sole cost and expense. I. The Owner's entitlements to density shall include the area calculated prior to any right of way donations. J. Collier County will have option to purchase rock and fill at from these excavations at 10% less than market rate. K. For lands within the Hussey Property that were cleared of native vegetation since the date of the adoption of the RFA, the requirement of CCME Policy 6.1.5 relating to the native vegetation requirements within Policies 6.1.1 and 6.1.2 shall be deemed satisfied through the designation of the 945 acres within the SR 846 Land Trust as Sending land, as well as the Native Vegetation Restoration and Management Plan attached as Exhibit C to this Agreement. Packet Page-1713- 9/25/2012 Item 12.A. L. The Owner shall provide to the County two (2) well site easements within its property and adjacent to the roadways shown on the MPO's 2035 LRTP needs plan. i. The easements shall be provided at no cost to the County. 4. SR 846 SUBDISTRICT A. Legal Description. All of Section 35 & 36, Township 47 South, Range 27 East, and all of Sections 1 and 2 in Township 48 South, Range 27 East (less road right-of-way for County Road 846 Immokalee Road), Collier County, Florida. B. The foregoing described property consists of an approximate combination of Rural Fringe Mixed Use District (RFMUD) Receiving Lands (1,631.5 acres) and Sending Lands (945 acres) as depicted on the attached map. The property may be developed in accord with the criteria for this specific subdistrict or criteria for the RFMUD generally, and as may be amended, or a combination thereof. All existing native vegetation in the Sending Lands will be preserved, except as provided below. The native vegetation retention standards for the Receiving Lands, including all requirements in Section 3.05.07 of the Collier County Land Development Code, are deemed to have been met by preservation of the existing native vegetation in the Sending Lands portion of this subdistrict. C. Any native vegetation to be cleared in the Sending Lands (e.g. roads, utilities, passive recreational facilities, and/or other essential services), must be replaced by restoration of agricultural land in the Sending Lands portion of this subdistrict at a 1:1 ratio." The restoration will occur per the attached "Native Vegetation Packet Page-1714- 9/25/2012 Item 12.A. Restoration and Management Plan" (Exhibit C, SR 846 Subdistrict), as may be amended, or an alternative plan requested by the property owner and approved by Collier County. The attached Native Vegetation Restoration and Management Plan is deemed approved as a TDR restoration management plan if applicant severs TDR's from the Sending lands. D. Lands eligible for the Environmental Restoration and Maintenance Bonus TDR Credit will include preserved native vegetation and restored land. If agricultural lands in the Sending Lands are proposed for restoration, the restoration plan will include the design of short hydroperiod wetlands that could be utilized by wood storks for foraging habitat. The applicant will seek input from staff at the National Audubon Society's Corkscrew Swamp Sanctuary for the design of the short hydroperiod wetlands and that input will be incorporated, provided the design input is compatible with ASINW surrounding land use, is economically viable, and does not conflict with permit requirements of state, federal, or local agencies. E. A Rural Village of up to 1,631.5 acres may be developed on the Receiving Lands. If the Receiving Lands are developed as a Rural Village, the Sending Lands portion of the subdistrict shall be deemed to satisfy the requirement for a greenbelt. Through use of Planned Unit Development (PUD) zoning and utilization of TDR Credits, a density of up to three dwelling (3) units per gross acre of Receiving Lands may be approved on the Receiving Lands. Sending Lands may be included in the PUD but shall not be counted for residential density. The Receiving Lands may be developed as a Mixed Use PUD (MPUD) which allows office and retail commercial uses, Assisted Living Facilities/Continuing Care Retirement Communities or similar use at an Packet Page-1715- 9/25/2012 Item 12.A. FAR of up to .60, and hotel, motel or other transient lodging facility with customary accessory uses at a density of up to 26 units per acre. F. If the property is developed as a Residential Planned Unit Development (RPUD) or an MPUD, a minimum density of one dwelling unit per acre is required. G. If developed as an MPUD commercial uses shall not exceed 10% of the total acreage of any MPUD. If a Rural Village is proposed, the maximum percentages for neighborhood centers, village centers, and research and technology parks shall be as permitted per the LDC. H. The early entry TDR bonus density credit shall be extended for three (3) years for the Sending Lands after the effective date of this subdistrict or such other date as may be extended generally for other RFMUD Sending Lands, whichever is the later date. I. Should Collier County adopt provisions that enable the transfer and use of RLSA Stewardship Credits in the RFMUD, such provisions may be used within the SR 846 Subdistrict. J. The boundary of the SR 846 Sending Lands as depicted on the attached SR 846 Subdistrict Map is approximate. The final boundary will be delineated based on field surveys at the time of application for TDR approval to reflect native vegetation, wetland and other site conditions at that time, however boundary adjustments shall ensure that the total acreage of SR 846 Sending lands shall be no less than 945 Packet Page-1716- 9/25/2012 Item 12.A. acres. Sending and Receiving area boundary adjustments shall not require a GMP Map itow amendment. K. A Conditional Use for earthmining and extraction was previously approved for this property (Resolution No. 2012-15), a portion of which has been subsequently changed from Receiving to Sending Lands. Earthmining and extraction remain as permitted Conditional Uses on the Receiving Lands, but are no longer permitted on these Sending Lands. No amendment of the Conditional Use approval is necessary to enforce this prohibition on earthmining and extraction on the Sending Lands. L. For all planned roadways and planned corridors shown on the Metropolitan Planning Organization's (MPO) 2035 Long Range Transportation Plan (LRTP) needs plan as of the date of approval of this Subdistrict and which are adjacent to Subdistrict property boundaries, the Owner shall commit to the following: i. To reserve within its property, the right of way necessary to construct these roadways. a. To convey the right of way within 180 days of the date that the County adds these roadways to the 5 year Capital Improvement Plan (CIP/CIE). b. The conveyance will be at no cost to the County and the Owner will not receive transportation impact fee credits. c. The right of way will be conveyed in fee simple subject to easements and reservations of record. Packet Page-1717- 9/25/2012 Item 12.A. ii. The Owner shall reserve within its property, the necessary water quality and water quantity treatment and attenuation for the above- referenced roadways and corridors adjacent to the property. iii. The County may extend the treatment and attenuation an additional 1000 linear feet from the property boundaries. The County will notify the Owner of the addition upon the completion of 30% design plans. iv. The County's right to the use of these lands for water management will not result in a cost to the Owner, nor will the Owner receive impact fee credits. M. The Owner's entitlements to density shall include the area calculated prior to any right of way conveyance. N. For residential density in excess of one (1) dwelling unit per acre (the maximum density allowed by right via use of transfer of development rights credits), the Owner shall entitle the property as a Planned Unit Development(s) (PUD) and be subject to the public hearing and approval process set forth in the Collier County Land Development Code for a PUD rezone, notwithstanding any residential density that would be established by right using the Sending and Receiving criteria. 5. The terms and condition may only be modified by mutual consent. The Owner and the County acknowledge that the terms of this settlement contain proposed land use entitlements and infrastructure improvements that are contemplated in 25-year planning horizon. The Owner and the County agree to work Packet Page-1718- 9/25/2012 Item 12.A. cooperatively to modify these terms as needed to reflect actual conditions as the Owner and the County execute their development and infrastructure plans 6. Upon approval by the court and the expiration of the time within which for any third parties to appeal, or the upholding of this settlement with finality, if so appealed, this action will be dismissed with prejudice. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] Packet Page-1719- 9/25/2012 Item 12.A. i P.. f a , PLATT RD Elg rt. z 1 43.8TH AVE NE .....t 27 26 5 25 30 wt TL ;:y DR .... < LL : . AE.Th AVE NE '14 . 31 34 \\\\\, • ''. • . //,,,/ / , , \ . . • / 6C-H.AVE NE //// Fit'T14 AV,"•'•NE , • ., ! , , , . Al - - 747 747 67116.\\\ 1116A/Ir./ yr , . • „," / 748 \\\<NVIor I • / , ' r..,-67f4 AVE NE . \\ " / • / ..• 1 .• • 6 0 D AVE NE \ .,,. . m ,. ,------- w ..*: 4e.TH AVE NE. 7i, Z;., L 10 47TH AV 12 7 NE 11 lt,?. '32:3 in x I. X "i: ' 2 w -;' LIMN ......_ , „fs .R. 846 LAND TWAT ,t.4 t tofu. i Fq SENDING ItitottArf tt,tstt.tottt fli;;.■*1304#iii.a* . , ' tiMifelU 44, 4-4toi 7.:TA,i F'„Aht RErEwitv, 9 10* Mee 2,904 . 9991 ' ":4* PA SSA R E I_LA 1 s.R.s44,glitliSTIUCT MAP ASSOCIATESI: px. ft.:WI: Packet Page-1720- 9/25/2012 Item 12.A. 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: BOARD OF COUNTY COMMISSIONERS DWIGHT E. BROCK, Clerk COLLIER COUNTY, FLORIDA By: By: , Deputy Clerk Fred W. Coyle, Chairman Mary Pat Hussey Francis D. Hussey, Jr. Sean Hussey, Trustee Michael J. Boran, Co-Trustee SR 846 Land Trust Ronald L. Brown, Co-Trustee Winchester Lakes, Inc. SR 846 Land Trust Joseph Bonness, President HHH Investments, LP By: HHH Investments Corp. I., GP Francis D. Hussey, Jr., President STATE OF FLORIDA COUNTY OF COLLIER The foregoing instrument was acknowledged before me this day of September, 2012, by Mary Pat Hussey, who is personally known to me or who has produced as identification. Notary Public Print Name: My Commission Expires: Aomok Packet Page-1721- 9/25/2012 Item 12.A. STATE OF FLORIDA COUNTY OF COLLIER The foregoing instrument was acknowledged before me this day of September, 2012, by Francis D. Hussey, Jr., who is personally known to me or who has produced as identification. Notary Public Print Name: My Commission Expires: STATE OF FLORIDA COUNTY OF COLLIER The foregoing instrument was acknowledged before me this day of September, 2012, by Sean Hussey, as Trustee, who is personally known to me or who has produced as identification. Notary Public Print Name: My Commission Expires: STATE OF COUNTY OF The foregoing instrument was acknowledged before me this day of September, 2012,by Michael J. Boran, as Co-Trustee of the SR 846 Land Trust, on behalf of such trust, who is personally known to me or who has produced as identification. Notary Public Print Name: My Commission Expires: Packet Page-1722- 9/25/2012 Item 12.A. STATE OF COUNTY OF The foregoing instrument was acknowledged before me this day of September, 2012, by Ronald L. Brown, as Co-Trustee of the SR 846 Land Trust, on behalf of such trust, who is personally known to me or who has produced as identification. Notary Public Print Name: My Commission Expires: STATE OF FLORIDA COUNTY OF COLLIER The foregoing instrument was acknowledged before me this day of September, 2012, by Joseph Bonness, as President of Winchester Lakes, Inc., a Florida corporation, on behalf of such corporation, who is personally known to me or who has produced as identification. Notary Public Print Name: My Commission Expires: STATE OF FLORIDA COUNTY OF COLLIER The foregoing instrument was acknowledged before me this day of September, 2012, by Francis D. Hussey, Jr., President of HHH Investments Corp.I, a Delaware corporation, authorized to do business in the state of Florida, which is the General Partner of HHH Investments L.P., a Delaware limited partnership authorized to do business in the state of Florida, on behalf of such limited partnership, who is personally known to me or who has produced as identification. Notary Public Print Name: My Commission Expires: Packet Page-1723- 9/25/2012 Item 12.A. Approved as to form and legal sufficiency: Jeffrey A. Klatzkow Collier County Attorney Packet Page-1724- 9/25/2012 Item 12.A. EXHIBIT A mow. 1. Within Section 29, Township 49, Range 27; parcels: 00328560002 00331320006 00330480002 00328640003 00329240004 00330840008 2. The Northern 9/32nds of Section 32, Township 49 South, Range 27 East; 3. Within Section 33, Township 49 South, Range 27 East; parcels: 00344240005 00343760007 00345280006 00343080004 00342840009 00344040001 Packet Page-1725- 9/25/2012 Item 12.A. EXHIBIT B The Southern 23/32nds of Section 32, Township 49 South, Range 27 East, less and except any lands that were previously taken for highway right of way. Packet Page-1726- 9/25/2012 Item 12.A. EXHIBIT C SR 846 SUB-DISTRICT NATIVE VEGETATION RESTORATION AND MANAGEMENT PLAN Revised September 2012 INTRODUCTION The following outlines the native vegetation restoration and management plan for the SR 846 Sub-District (Sub-District). The Sub-District is located in Sections 35 and 36, Township 47 South, Range 27 East; and Sections 1 and 2, Township 48 South, Range 27 East, Collier County. This management plan will provide direct benefit to listed wildlife species with the potential to utilize habitats within the Sub-District including gopher tortoise (Gopherus polyphemus), Eastern indigo snake (Drymarchon corais couperi), American alligator (Alligator mississippiensis), little blue heron (Egretta caerulea), snowy egret (Egretta thula), tri-colored heron (Egretta tricolor), white ibis (Eudocimus albus), burrowing owl (Athene cunicularia floridana), bald eagle (Haliaeetus leucocephalus), wood stork (Mycteria americana), Florida panther (Puma concolor coryii), and Florida black bear (Ursus americanus floridanus). The preserve management plan will provide direct protection of habitats that may contain Collier County Less Rare plant species including butterfly orchid (Encyclia tampensis), inflated wild pine (Tillandsia balbisiana), stiff-leaved wild pine (T fasciculata), twisted air plant(T.flexuosa), and giant wild pine(T utriculata). EXOTIC REMOVAL AND MAINTENANCE Exotic vegetation will be eradicated from all native preserves. Exotic vegetation includes Category I exotics as defined by the Florida Exotic Pest Plant Council list of invasive species at the time of preserve management plan approval. Nuisance and non-native ornamental vegetation shall be eradicated from all native preserves. Enhancement activities in the preserves will include hand removal of exotic and nuisance vegetation. Exotic removal work within the preserve areas will begin in conjunction with initial site clearing activities and be completed in accordance with the South Florida Water Management District (SFWMD) Environmental Resource Permit Work Schedule. All exotics within the first 75 feet of the outer edge of every preserve shall be physically Packet Page-1727- 9/25/2012 Item 12.A. removed or the trees cut down to grade, cut debris removed, and the stumps treated. Exotic vegetation within the interior of the preserve will be treated in place if physical removal will cause more damage to the native vegetation within the preserve. Exotic vegetation shall be removed by hand within the preserve area. The exotic vegetation will be cut down to grade and the stump treated with a U.S. Environmental Protection Agency approved herbicide with visual trace dye included. The hand removal of exotic and nuisance vegetation will include one or more of the following methods: 1) cut exotics within 12 inches of ground elevation, hand remove cut vegetation, and treat remaining stump with approved herbicide; 2) girdle standing melaleuca (Melaleuca quinquenervia) and Australian pine (Casuarina equisetifolia) with diameter at breast (DBH)ht greater than four inches and apply approved herbicide to cambium; 3) g ( ) g foliar application of approved herbicide to melaleuca saplings, Brazilian pepper (Schinus terebinthifolius), Australian pine, and downy rose myrtle (Rhodomyrtus tomentosus); and 4) foliar application of approved herbicide or hand pulling of exotic seedlings and cattails (Typha sp.). In areas where the density of melaleuca trees exceeds 50 percent, cuttings will either be removed from the site or stacked in piles at approximately 100 foot intervals. If left on the site, smaller cuttings will be stacked butt end to the ground into a nearly vertical position (i.e., teepee method). Larger cuttings will be cut and stacked side by side into an area approximately six feet per side. Cuttings will be stacked perpendicular to the previous layer,up to a height of approximately four feet(i.e., log cabin method). LONG-TERM MAINTENANCE AND MONITORING The wetland and upland preserve areas shall remain in a natural state in perpetuity and not be disturbed by dredging, filling, land clearing, or construction related activities. Exceptions for disturbance are allowed for management activities described in this management plan and passive recreational uses and pathways as may be approved by the County. The preserve area shall be kept free of refuse and debris. Maintenance will be conducted in perpetuity to ensure that the preserves are free of exotic vegetation and nuisance vegetation. Inspections of the preserve area shall occur annually by the Preserve Manager or more frequently if necessary. The annual inspections shall document with photographs the coverage and types of vegetation to be cleared for fuel management or safety concerns, prior to clearing. The annual reports will include results of the inspections and recommendations of the Preserve Manager, including specific techniques to prevent reinvasion by prohibited exotic vegetation. Changes in the Preserve Manager hired to manage the preserve shall be documented in the annual reports. The property owner shall retain the five most recent years of monitoring reports and make them available to Collier County upon request. Additional monitoring will be implemented for preserves that receive treated stormwater. The additional monitoring program will include protocols to conduct vegetation surveys and monitoring for ground and surface water levels. Monitoring for stormwater in the Packet Page-1728- 9/25/2012 Item 12.A. preserves will include baseline followed by five annual monitoring reports. Reports Amok submitted to the SFWMD may be used to satisfy this reporting requirement as long as they conform to the requirements of Land Development Code (LDC) 3.05.07.H.l.g.viii. Compatible vegetation must be planted to replace upland vegetation that may be lost as a direct result of the introduction of stormwater into the preserve. FIRE MANAGEMENT AND VEGETATION REMOVAL Prescribed burning is an available management technique that may be permitted, as applicable, within the upland and wetland preservation areas. Fire management prescriptions will be prepared by a certified prescribed burn manager for the purpose of improving forest health, maintaining species diversity, and minimizing the risk of uncontrolled wildfire. Fire management prescriptions must be appropriate for the habitat type and surrounding land uses. The feasibility of conducting prescribed burns will take into consideration the ability to obtain local and state authorizations, the ability to create adequate firebreaks at the burn site, and impacts to listed wildlife species. Prescribed burning may only be conducted by a certified prescribed burn manager and in accordance with the applicable rules and regulations of the Division of Forestry. The use of prescribed burning may necessitate the creation of adequate firebreaks resulting in the removal of native vegetation within the preserve areas. The removal of native vegetation in the preserve areas for the purpose of creating fire breaks will be coordinated with the Division of Forestry Vegetation removal permits from the County shall not be required to implement clearing or thinning vegetation for fuel management or fire lines in accordance with normal forestry practices. Vegetation removal permits shall not be required to remove dead, dying, or leaning trees which pose a safety concern unless they contain a nest or cavity of a listed animal species or bald eagle. Where listed species may be affected by vegetation clearing practices, surveys for listed species must be conducted no more than six months prior to clearing. PRESERVE SIGNAGE Signage shall be placed around preserve areas to identify and protect the preserve during and after construction. The signage will note the posted area is a protected area. The signs shall be no closer than ten feet from residential property lines, be limited to a maximum height of four feet and a maximum size of two square feet, and otherwise comply with Section 3.05.04 of the LDC. Maximum sign spacing shall be 300 feet. Packet Page 4729- 9/25/2012 Item 12.A. RESTORATION During development activities, it may be necessary to perform certain construction activities (i.e., roads and other uses) within the Sending Land native vegetation. Any native vegetation cleared in the Sending Lands must be replaced by restoration of agricultural land in the Sending Lands portion of this Sub-District at a 1:1 ratio. Restoration plantings will include the tree, shrub, and ground cover plantings listed in Tables 1 or 2. Tree plantings will include a minimum of three species, shrub plantings will include a minimum of two species, and ground cover plantings will include a minimum of three species. Agency permitted restoration requirements for native vegetation cleared in the Sub-District will be deemed satisfactory replacement and will supersede the restoration requirements of this section. Table 1. Wetland Planting List Minimum Planting Common Minimum Instruction Hei g ht Scientific Name Container (On Center) Name Size Freshwater Forested Wetland Plantings Cypress 15 ft. Taxodium 6 ft. 3 gal. ascendens Dahoon holly Ilex cassine 6 ft. 3 gal. 15 ft. Pop ash Fraxinus caroliniana 6 ft. 3 gal. 15 ft. Red maple Acer rubrum 6 ft. 3 gal. 15 ft. Slash pine Pinus elliottii 6 ft. 3 gal. 15 ft. Wax myrtle 3 ft. 1 al. 8 ft. Myrica cerifera g Gallberry 3 ft. 1 gal. 8 ft. Ilex glabra g Buttonbush 8 ft. Cephalanthus 3 ft. 1 gal. occidentalis Cordgrass Spartina bakeri 12 in. 4 in. 3 ft. Wiregrass Aristida stricta 12 in. 4 in. 3 ft. Gulfdune Paspalum 12 in. 4 in. 3 ft. paspalum monostachyum Fakahatcheegrass Tripsacum dactyloides 12 in. 4 in. 3 ft. Sawgrass Cladium jamaicense 12 in. 4 in. 3 ft. Freshwater Marsh Plantings Maidencane 3 ft. 12 in. 4 in. Panicum Packet Page-1730- 9/25/2012 Item 12.A. hemitomon 406,, Pickerelweed Pontederia cordata 12 in. 4 in. 3 ft. Duck potato Sagittaria lancifolia 12 in. 4 in. 3 ft. Soft-stem Scirpus validus 3 ft. bulrush 12 in. 4 in. Spikerush Eleocharis interstincta 12 in. 4 in. 3 ft. Bacopa Bacopa caroliniana -- Liner -- Table 2. Upland Planting List Minimum Planting Common Scientific Name Minimum Container Instruction Name Height (On Center) Size Live oak Quercus virginiana 6 ft. 3 gal. 15 ft. Slash pine Pinus elliottii 6 ft. 3 gal. 15 ft. Cabbage palm Sabal palmetto 6 ft. 3 gal. 15 ft. Myrtle oak Quercus myrtifolia 3 ft. 1 gal. 8 ft. Chapman's oak Quercus chapmanii 3 ft. 1 gal. 8 ft. Coco plum Chrysobalanus icaco 3 ft. 1 gal. 8 ft. Myrsine 8 ft. Rapanea punctata 3 ft. 1 gal. .,:rgwp6. Wax myrtle 8 ft. Myrica cerifera 3 ft. 1 gal. Muhly grass 3 ft. Muhlenbergia 12 in. 4 in. capillaris Sand cordgrass Spartina bakeri 12 in. 4 in. 3 ft. Broomsedge Andropogon virginicus 12 in. 4 in. 3 ft. Table 2. (Continued) Minimum Planting Common Minimum Container Instruction Scientific Name Name ! Height Size (On Center) Lovegrass Eragrostis spectabilis 12 in. 2 in. 3 ft. Saw palmetto Serenoa repens 12 in. 4 in. 3 ft. Wiregrass Aristida stricta 12 in. 4 in. 3 ft. oak Packet Page-1731- 9/25/2012 Item 12.A. SPECIES SPECIFIC MANAGEMENT ACTIONS Specific management actions for gopher tortoise, Eastern indigo snake, American alligator, and burrowing owl are as follows: Gopher Tortoise The Sub-District will provide for on-site preservation areas that provide suitable gopher tortoise habitat. Gopher tortoises located in habitats proposed for development will be relocated to the on-site preservation area in accordance with Florida Fish and Wildlife Conservation Commission (FWCC) permits. The on-site gopher tortoise preserves will remain fenced to prevent the relocated gopher tortoises from entering the construction area and to protect vegetation during the clearing and construction period. The gopher tortoise preserves will be managed by hand removal of exotic vegetation and controlled burning. Gopher Tortoise Relocation and Management Prior to the relocation of any gopher tortoises, an updated gopher tortoise survey will be conducted within the limits of construction no more than 90 days prior to excavating the gopher tortoise burrows. Within the limits of construction, all potentially occupied gopher tortoise burrows will be excavated. Removal of the vegetation and heavier overburden material will occur by backhoe. The finer digging around the burrow will be done by hand. Excavation activities will be supervised by a qualified biologist. Any gopher tortoises and their commensals found will be relocated to the on-site preserve area. Following the completion of the relocation activities, County Environmental Services staff will be notified in writing regarding the number of burrows excavated and the number of tortoises relocated to each on-site preserve. To reduce the threat of wildfires and maintain quality gopher tortoise habitat within the preserve area, prescribed burns may be utilized to remove excess vegetative growth and nuisance vegetation, such as vines. Burning in the preserves may occur on a one to three year rotation or as conditions permit. Any controlled burning shall be conducted by a state certified burn manager and will be at the discretion of the developer or homeowners association. Roller-chopping and hand clearing are alternative methods for removing excess vegetation growth and nuisance vegetation. All burning, roller-chopping, or hand clearing activities shall be reviewed by County Environmental Services staff. Three years post-relocation, an assessment of the gopher tortoise recipient sites shall be conducted to evaluate habitat conditions and the status of the gopher tortoise population. County Environmental Services staff shall be notified if corrective actions are required. The gopher tortoise recipient site will be inspected as needed every three years to insure that the preserve is suitable for supporting gopher tortoises in perpetuity. Eastern Indigo Snake Packet Page-1732- 9/25/2012 Item 12.A. During clearing operations, informational posters will be placed in conspicuous locations at the construction office and construction entrances. The posters will provide background information on identification, habits, and protection of the Eastern indigo snake. The posters will state actions to take if an Eastern indigo snake is sighted and the names and telephone numbers of contact persons. Informational pamphlets will be made available to individuals in charge of the clearing operation for distribution to all construction crew. The pamphlets will provide background information on identification, habits, and protection of the Eastern indigo snake. The pamphlets will state actions to take if an Eastern indigo snake is sighted, and the names and telephone numbers of contact persons. Actions to take if a live or injured Eastern indigo snake is sighted during construction activity: 1. Cease construction activity. 2. Promptly notify the project's qualified biologist: Passarella &Associates, Inc. Phone: (239) 274-0067 3. Allow the snake sufficient time to move away from construction activity or allow the qualified biologist to promptly relocate the Eastern indigo snake before resuming construction. Only the qualified biologist is permitted to come in contact with, or relocate an Eastern indigo snake. Actions to take if a dead Eastern indigo snake is sighted during construction activity: 1. Promptly notify the project's qualified biologist: Passarella&Associates, Inc. Phone: (239) 274-0067 2. Seal the remains in an airtight plastic bag and place on ice. 3. The qualified biologist will contact the following agency personnel for proper disposal: Conservation Planning Section Dr. Joe Walsh U.S. Fish and Wildlife Service Florida Fish and Wildlife Conservation South Florida Ecological Services Field Office Commission 1339 20`h Street 255 154th Avenue Vero Beach, Florida 32960 Vero Beach, Florida 32968 Phone: (772) 562-3909 Phone: (772) 778-5094 Amok Packet Page-1733- 9/25/2012 Item 12.A. American Alligator Signs will be posted on the subject property to instruct on-site workers not to feed or harass the American alligator or disturb nesting sites. The signs will indicate that the offense is punishable by law. Construction personnel will be instructed that in the event there is a problem with a persistent nuisance alligator, they will need to contact the FWCC, as that is the only agency empowered to handle nuisance alligators. Burrowing Owl The burrowing owl is a pint-sized bird that lives in open, treeless areas. The burrowing owl spends most of its time on the ground, where its sandy brown plumage provides camouflage from potential predators. One of Florida's smallest owls, it averages 9 inches in height with a wingspan of 21 inches. The burrowing owl lacks the ear tufts of the more familiar woodland owls. Bright yellow eyes and a white chin accent the face. Unusually long legs provide additional height for a better view from its typical ground-level perch. Burrowing owls nest and inhabit underground burrows that they excavate or adopt from other burrowing animals, such as gopher tortoises. Culverts, PVC pipes, and spaces underneath sidewalks and roofs also serve as nesting locations for the burrowing owl. They are mostly monogamous and territorial around their burrows. During the nesting season, burrows are adorned with various materials such as grasses and palm fronds before egg-laying. Subsequent to the laying of eggs, the entrance to the burrow is decorated with highly visible non-natural objects, such as tinfoil and plastics. The low pasture areas in preserves may be maintained by cattle grazing. If cattle are removed from the site, the low pasture may be mowed or burned. Mowing will only be conducted during the non-nesting season (July 10 through February 15). The appropriate FWCC permit will be obtained before any burrowing owl burrow is taken. Wood Stork If agricultural lands in the Sending Lands are proposed for restoration, the restoration plan will include the design of short hydroperiod wetlands that could be utilized by wood storks for foraging habitat. The applicant will seek input from staff at the National Audubon Society's Corkscrew Swamp Sanctuary for the design of the short hydroperiod wetlands and that input will be incorporated, provided the design input is compatible with surrounding land use, is economically viable, and does not conflict with permit requirements of state, federal, or local agencies. Packet Page-1734- 9/25/2012 Item 12.A. CONTACTS The contact information for the preserve manager and the developer are as follows: Preserve Manager Developer Andrew Woodruff To Be Determined Passarella&Associates, Inc. 13620 Metropolis Avenue, Suite 200 Fort Myers, Florida 33912 (239) 274-0067 The preserve manager and developer are responsible for overseeing the implementation of the preserve management plan. Asw Packet Page-1735-