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Agenda 07/26/2011 Item # 9G7/26/2011 Item 9.G. EXECUTIVE SUMMARY OBJECTIVE: Deny payment of $1,863,000 to Barron Collier Partnership LLLP ( "Barron Collier ") as invoiced by Barron Collier. The underlying contract dated February 24, 2009 as it relates to the unbundled panther habitat unit mitigation credits ( "Panther Credits ") is an options agreement. As such the county is not obligated to purchase these Panther Credits from Barron Collier. Given the decrease in the market price of Panther credits, which based on the most recent open market bid received by the county in 2010, is around $925 per unit, the county would save about $473,962.50 (1,723.5 x ($1,2004925)) or possibly more given that Panther Credits have not yet been put out to bid in 2011. Alternatively, no cash outlay would be required by the county if the appropriate outside agency or agencies accept a reservation letter or the equivalent, (derived from county owned conservation lands in the process of being turned into mitigation banks), for the 1,723.5 Panther Credits in question. Direct Staff to determine the lowest cost alternative to obtaining the Panther Credits. CONSIDERATIONS: The underlying contract dated February 24, 2009 as it relates to the unbundled panther habitat unit mitigation credits ( "Panther Credits ") is an options agreement. As such the county is not obligated to purchase these Panther Credits from Barron Collier. Given the decrease in the market price of Panther credits, which based on the most recent open market bidding is around $925 per unit, the county would save about 5473,962.50 (1,723.5 x ($1,200- $925)) or possibly more given that Panther Credits have not yet been put out to bid in 2011. Alternatively, there could be no cash outlay required by the county if the appropriate outside agency (agencies) accept a reservation letter or the equivalent derived from county owned conservation lands in the process of being turned into mitigation banks for the 1,723.5 Panther Credits in question. FISCAL IMPACT: Cash savings between $473,962 up to $1,863,000 to Collier county. LEGAL CONSIDERATIONS: See the Wetland Mitigation and Panther Habitat Unit Agreement dated February 24, 2009 between the county and Barron Collier: The recitals (Whereas Claus #6), which are incorporated by reference into the body of the Agreement states that the county "may" wish to purchase up to 2000 Panther Credits from Barron Collier; and, Paragraph 4(B) addresses the remaining "option' to purchase up to 1723.5 (the remaining unbundled Panther Credits) from Barron Collier at the $1,200 per credit price. As a result, for this and other reasons, Collier County is not obligated to purchase 1723.5 Panther Units from Barron Collier at $1,200 per credit unit. GROWTH MANAGEMENT IMPACT• None RECOMMENDATION: Deny payment of $1,863,000 to Barron Collier for 1723.5 Panther Credits and direct Staff to obtain the credits through open market bidding or alternatively use the benfit of reservations of Panther units derived from county owned conservation lands as allowed by the appropriate outside agency (agencies). Packet Page -529- 7/26/2011 Item 9.G. Prepared By: Commissioner Georgia Hiller Attachments: Minutes, Contract, Barron Collier Letter, Deed Packet Page -530- 7/26/2011 Item 9.G. COLLIER COUNTY Board of County Commissioners Item Number: 9.G. Item Summary: PHU Agreement (Commissioner Hiller) Meeting Date: 7/26/2011 Prepared By Name: RaineyJennifer Title: Executive Aide, BCC 7/19/2011 10:21:56 AM Submitted by Title: Executive Aide, BCC Name: RaineyJennifer 7/19/2011 10:21:58 AM Approved By Name: IsacksonMark Title: Director -Corp Financial and Mgmt Svs,CMO Date: 7/20/2011 11:44:32 AM Packet Page -531- 7/26/2011 Item 9.G. IMSTR 4539519 OR 46SS PG 280 RECORHFL 2/24/2011 30:58 AN PAGES 4 WIaire C. 8110". CLERK OF THE CIRCUIT COURT, COLLIER COUNTY PL011IOA In" .70 50.70 REC 135.50 CONS SO.00 This bnlnmemt Prepared By and Plea Returns To: Bann Collier Cmnpny 3600 Golden Gate Pukuuy Nmploxflotida 34105 WARRANTY DEED (STATUTORY FORAI - SECTION 659.0!, FS.) THIS INDENTURE,wade"�dayof �.IrXD.20t0,otveC n BARRON COLLIER BWESTRIENTS, a Flo s Bwited parloenhip wbme add" in 2600 Goldin Gam Pad:woy. Naples, FI 34105, grantor, and the BOARD OF TRUSTEES OF THE INTERNAL NipROVEMENT TRUST FUND OF THE STATE OF FLORIDA, whose post office address is ado Florida Depn M of rmmkon l ProuctituL Division of Sow LMs, 3900 Coolwonwedth Beuhrvn4 Mail Sutroo 115, TalLhaua. FL 32399.3000, Moment, one Isrneua Mrd tY to,n•p.Wr.r •SraNw•uavae ea enal nu -G Ml - W er rNir eon. lepl rprie s" Pw, annnn w ersr. •Orwer' er •anr.r•.re urea ry aeRYer.r prunL a tse naneN rower ar "r uwef eq arras rhs01tln1eMwdenJ WITNESSETH; TOO ibe Said grower, for and in comidera"oR of the sum of Tea Dollars and olber grand Rod valuable aomNenOwl, , mid paolm in Mod paid by said Mramor, she sawipi whereof 4 bareby aalmoukdged, ban gramN, hoKaioad Rod sold For the said trimea, mad Monaco a successor Rod asdgm former, the following deuribed load Situate, lying and being to CoNior County, Florida, to -wit: San Eshba'A' amaed hereto sod by derma made A part IRreof. Aemeplmce ofTrmsfer ofTitle In Domed LAMS mashed berm, w Exhibit "V A by tafemew made a pert hereof, Property Appraiser's Parent] ldeallAcallaa Namben: 0113$110003 164 conmmyam< is subject, tYe b, rorictiam, rmervedOm, limitations send Conditions of tetord if airy now assist, but Key such interests that wry hove been termirstud are our hereby tNttnpoaed. AND the said grantor does hereby fully wamaM the dole to said Ian& and will defend the soon Saim the lawful claims of all person whwwxw, IN WTINESS WHEREOF the gums bas hemom. set $mines band and see 1, the dayaM year first above written. Sign& on sod 4eltensed in tM presence OF star a of Bert IV !men a to Bar`oa G. Cowes, iO LFrlll tB ANW Ortnte& rd or stamped name of Mr ) it (S of otewnd IVIIn m to Barnnn to Barran G. Conkr.11O Lv.'W. a (ITinted. typed or stamped name of sensed W9ons) Stu of fir" WI use, as to adkl A. ltmz) Lyre Rm W (Panne eder"anpedaswoo fusty n (icq • of weoatl Witnms as to Batllp A. Boat) LeVOmH M. Webb (1`emled, typed ter sb,uped owe of seeend Witness) BARRON COLLIER INVESTMENTS, LTD., a Florida llMleddpaarrwe�raRlp Raton G. Collier 111 ti1";Pe6ertpertntr !r: -� Packet Page -532- 0 7/26/2011 Item 9.G. ON 0655 PC 281 STA7E OF a. udti COUNTY OF Ca II %?Y_ N. n GmW Pam f8�oen1 aas atdmowlaapd bdbrt n Nis anml Collier lmeamvu, LTD., a Honda limwd Y ar .201O6y0ama G. C.IIyr, Such perwvfdfNoWyPublic awlchlkk apPIkAk boxk P OR ofuidlimuedpann<nhip. IM isptetanally kntrvnbma 1 ] PtodutM atnrcnt dnKrliceree. pNmced - -- _ n idctlifiwion. a No ary aum KIM D. DAVIDSON a +.a.. (pnn .T1p m um Nameo Noury Public Cmaniumallo.:_jgD q?YO( S My Comm4aim upxu. y i r_, sTATE OF. Eta j dC, COUNFYOF CO iv mAPent oiu`9mvo nG�;uln1O1 u'1O e`�O1aea bemre me dds�.2^�dy o[ A c ( zOtO anal veaDaenu, LTD.(Nou y pabkwehtek appllubk b ox): , • Flv,da limited oid Gat Iy✓ Puuxnq N p. sumaYMA rBaaoaa(:a, l u pernndly known u mt. (j produced a cunt., diner li, .e. 1 1 Produced © } N."y I" KIM D. DAVIDSON (Pnnmd, ypetl ar SUmptd Name of o,vy Public COmeirsim No.:_Jj D 43 401 9 MY Commiuion &peer. yt1�lµ ^'— WHIED AYNIDVF0 a51D LMNI AND LEGALriV DF :I /A1l //T M11: ✓ –WJwi Packet Page -533- 7/26/2011 Item 9.G. 8Barron Collier COMPANIES March 19, 2010 VIA EMAIL: JavAhmad(dcollieraov net Jay Ahmad, P.E. Director, Collier County Transportation Engineering & Construction Management Collier County Transportation Department 2885 S. Horseshoe Drive Naples, Florida 34104 Re: Wetland Mitigation and Panther Habitat Unit Agreement— Oil Well Road Expansion Dear Jay: Thanks for your letter dated March 4, 2010, in response to Barron Collier Partnership, LLLP's (BCP) request for payment for PHU/ "Panther Credits" under the February 24, 2009, Wetland Mitigation and Panther Habitat Unit Agreement. Your March 4 letter states that "the County is not required to pay the requested amount ... as no Panther Habitat Units exist." We respectfully disagree with this conclusion. The Panther Habitat Units (PHUs) have clearly been treated by the various agencies that have permitting jurisdiction over the Oil Well Road project as existing panther habitat mitigation credits. The County has received all the permits that were dependent on creation and utilization of PHUs, and has commenced construction of the improvements that create the impacts the PHUs mitigate.' Under the circumstances, the County cannot in good faith claim that the PHUs do not exist while at the same time enjoying the full benefit of the PHUs (i.e., by constructing the improvements that could not be constructed unless the PHUs in fact exist). Agreement Paragraph 4 clearly states that the "Purchase Price for the [PHUs] ... shall be paid one (1) year from the [February 24, 2009] Effective Date if the County is unable to satisfy all conditions for the creation, assignment, conveyance, and banking of the County PHUs." The one -year deadline for payment has clearly passed and the Agreement clearly requires payment by the County in the form of cash. BCP therefore respectfully renews its demand for payment from the County in the amount of $2,068,200.00 for the PHUs. ' The February 24, 2009, Agreement provides that the "Panther Credits shall be deemed approved upon recordation of a conservation easement (from Barron Collier to USFWS) over primary zone panther habitat area." This language was included in the Agreement based on USFWS permitting requirements that were being applied at that time, and the County was well aware of those requirements. Notwithstanding the Agreement language, the County received all necessary permits for the Oil Well Road expansion and started the related construction activities before any such conservation easement was granted. USFWS has since changed their practices to require panther habitat to be deeded (rather than subjected to a conservation easement), which is a much longer process. -- Both BCP and the County relied on USFWS policy that has since changed, and the County cannot now reasonably claim that the polity change nullifies the existence of PHUs that the County is already utilizing. 2600 GOLDEN GATE PARKWAY • NAPI i t. FLORIDA 34105 • (239) 262 -2600 • FAX (239) 262 -2589 Packet Page -534- 7/26/2011 Item 9.G. Jay Ahmad, P.E. March 19, 2010 Page 2 Your letter goes on to indicate that "the County is still diligently engaging in good faith to permit the Starnes property for the County's share of the Oil Well Road mitigation." This statement implies that the County still has the right to pay for the BCP PHUs by some means other than a cash payment. BCP does not agree with this conclusion. BCP made a significant concession under the Agreement by allowing the County a 1 -year period to create PHUs using the Starnes property and to assign those PHUs to BCP in lieu of the corresponding cash payment amount (as provided in the Paragraph 4 excerpt quoted above). The one -year period for creation of the County PHUs has passed — as has its right to use the County PHUs as an alternative form of payment — and the Agreement clearly requires a cash payment at this point. We look forward to receiving the requested payment, and please feel free contact me with any questions. Very tr ly yours, David B. Genson, Vice President of Engineering BARRON COLLIER COMPANIES cc: George L. Varnadoe, Esq. Norman Feder, AICP (Via Email: Norm Feder @collieraov.net) Packet Page -535- 7/26/2011 Item 9.G. May 24, 2011 CHAIRMAN COYLE: Oh, that's right, we've already voted. Why are we talking about it? Does anybody know? COMMISSIONER FIALA: Yes, because after the vote Commissioner Hiller said she wanted to clarify why she voted against it. It was a 4 -1 vote and that's what started this. CHAIRMAN COYLE: And then we had another 30 minutes of discussion. Okay. COMMISSIONER HILLER: One other thing I'll add. A moratorium doesn't need a calculation. And staff today said that they made the decision based on demand for manufacturing space, not based on a recalculation of the actual cost of the impact of manufacturing and whatever else -- warehousing. CHAIRMAN COYLE: That is a complete mis- characterization of what they have said. But we'll save that for a different time because we will accomplish nothing with these kinds of accusations flying around. So where does that take us now? Item #I OC RECOMMENDATION THAT THE BOARD OF COUNTY COMMISSIONERS AUTHORIZE A BUDGET AMENDMENT FOR THE PURPOSE OF FUNDING NECESSARY PANTHER HABITAT UNITS (PHU'S) REQUIRED FOR THE OIL WELL ROAD PROJECT PER TERMS OF THE WETLAND MITIGATION AND PANTHER HABITAT UNIT AGREEMENT WITH BARRON COLLIER COMPANIES APPROVED BY THE BOARD ON FEBRUARY 24, 2009 — APPROVED $1,863,000 TO FUND PHU' S MR. OCHS: Takes us to Item 10(C). It's a recommendation for the Board to authorize a budget amendment for the purpose of finding Page 106 Packet Page -536- 7/26/2011 Item 9.G. May 24, 2011 the necessary -- excuse me, funding the necessary panther habitat units required for the Oil Well Road project for terms of the wetland mitigation and panther habitat unit agreement with Barron Collier Companies approved by the Board on February 24th, 2009. Mr. Jay Ahmad, Director of Transportation Engineering, will present. MR. AHMAD: Good afternoon, Mr. Chairman, Commissioners. Jay Ahmad, your Director of Transportation Engineering. I do have a presentation, if you wish. This item is a compliance item. The Board unanimously approved agreements in the past, in 2009 and 2005, and we're simply transferring funds from one account to another to pay the agreement, the contract that the Board signed. I'd be happy to present it. CHAIRMAN COYLE: Let's have the public speakers, please. MR. MITCHELL: The first speaker will be Duane Billington and he'll be followed by Tim Nance. �► MR. BILLINGTON: For the record, Duane Billington. Kind of interesting we're having public speakers before we're having a presentation in the case. Sometimes the people that want to speak publicly may benefit from hearing the presentation. But having said that -- COMMISSIONER HILLER: Before you start, can I -- can you hold his time for a moment? Commissioner Coyle, I would actually like to hear the presentation first, because I would like to hear the public's comments. I mean, they don't know what to anticipate that staff will say. And I don't want to bar them from having the ability to be responsive to Jay's presentation. CHAIRMAN COYLE: I don't want to either. I don't mind having the presentation. It's just that whatever is presented is in the executive summary. It's been advertised and people can read it. If they don't feel that they read it or understand it probably then we'll be . Page 107 Packet Page -537- 7/26/2011 Item 9.G. May 24, 2011 11happy to have a presentation to tell you. COMMISSIONER HILLER: And if I may comment on that, you know, the public only has two working days to review this material. And for some people it's just one weekend because they work those other two days. So I think we have to give them the opportunity to hear the material from staff. CHAIRMAN COYLE: Okay, let's hear your material. MR. AHMAD: Absolutely, sir. This is as I stated a recommendation for a budget amendment for the Oil Well Road project to pay for panther habitat units on the project. I have a few slides. This slide is -- in April, 2005 the Board of County Commissioners in a unanimous vote, 5 -0, approved developer contribution agreements with Ave Maria and Barron Collier. In that agreement the county is responsible for mitigation for both wetlands and the PHU's. Taking you down the project from 2005 through 2008 and through 2009, it's been in various design stages. The design was the responsibility of the developer. They hired their own designers and it went through the 30, 60, 90 public information meetings that we held for the project. But in 2009, as we anticipate the construction that is imminent, the plans were done, and now the permit was about to be issued, the Board approved the wetland mitigation and panther habitat agreement. Per that agreement, it stipulated exactly how much we needed for wetland mitigation and for panther habitat unit agreements. Essentially 30.86 wetland credits and 1,552.5 for PHU's. Part of the wetland credits carries some PHU's, about 276. So if you look at how many PHU's are required for the project, it is 276 plus 1,552, it's approximately 1,900. In that agreement as well, in 2009 cost per the agreement, the . agreement stipulated the wetland credits will cost $48,000. The PHU Page 108 Packet Page -538- 7/26/2011 Item 9.G. May 24, 2011 credits will cost $1,200. And on the right hand side, back then the L open market where you could buy it from banks, the wetland cost per credit was $62,000 and PHU were $1,500. CHAIRMAN COYLE: Sixteen hundred. MR. AHMAD: That is an error. I apologize. CHAIRMAN COYLE: It's fifteen or 16? MR. AHMAD: It's $1,500. CHAIRMAN COYLE: Fifteen hundred, okay. MR. AHMAD: Correct. Now, per the agreement again, it stipulates when do we pay for the wetlands and when do we pay for the 100 percent for the PHU's. Now, taking that date of May of 2009, the permit was issued by South Florida Water Management District. A normal project; when the District approves the permit, we pay 50 percent of wetland credits and we pay 100 percent of the PHU's. And normally we would go out to a bank and obtain those at the prices I indicated earlier. But of course we had that agreement that gave us about 20 percent discount, so we essentially instead of paying 62,000, we were And we the 50 percent at that 48,000 rate for the paying 48,000. paid wetland. We did not pay the PHUs at that time. And the next slide is February, 2010. The Board approved of course, the contract with Mitchell and Stark to begin construction. That's the date we started construction. And the permitting agencies allowed us to start construction because they knew we had that parcel, part of the application for mitigation that Barron Collier -- remember, they were doing the design. They dedicated that parcel of U.S. 41 for panther habitat units, and they were very close to getting their PHU's. But they -- at that time they got the wetlands through the Camp Keais Strand, that the wetland they had, so we paid for that. Now, in the original -- in the February 24th, 2009 agreement, it had the one year condition that the county was to obtain the PHU from Starnes property, a property that Conservation Collier -- and folks • Page 109 Packet Page -539- 7/26/2011 Item 9.G. May 24, 2011 from Conservation Collier are here to answer any questions that you may have. The Board directed staff with Conservation Collier; since we're getting the Starnes property, Pepper Ranch and other parcels, let's start getting our conservation PHU's and wetlands credits from those properties. So the county started that process early on before any of these agreements, and they were -- we thought and Conservation Collier thought, Barron Collier as well thought that they would get their PHU's approved by the permitting agency within a short time. And that is obviously not -- wasn't the case. The PHU's that the county for the Starnes, that started in 2008. To date we don't have the PHU's from that parcel. Neither do we have it from Pepper Ranch. Although I understand from Conservation Collier that we are getting very close to getting it from Starnes. Now at that date of March 2010, a year after the 2009 agreement, 1 now that county option expired, that we can no longer use the PHU's from our own Starnes or from our own Pepper Ranch. That's the agreement we entered into. So now we have to obtain it from the -- as was initially envisioned by DCA, from Barron Collier. They applied for the PHU's, part of the application for federal permits that they got. Now, advancing to the second payment of the wetlands is in October that was due. And sure enough we paid those amounts. We paid $740,000 in October, 2010 when South Florida accepted the wetland monitoring report, and that's also per the agreement, and we paid the earlier agreement, as I indicated before. So to date we paid -- to this date, October 2010, we paid a total of $1,481,280 for wetland mitigation from Barron Collier. Remember this is a much discounted rate. The open market, $60,000. This is $48,000 a unit. It's a huge deal, I believe, for the county. The -- advance to March 2011, U.S. Fish & Wildlife accepted Barron Collier Trust agreement, now the balance is due. Essentially Page 110 Packet Page -540- 7/26/2011 Item 9.G. May 24, 2011 they accepted their bank, or the conservation. At this date we don't have ours. So -- they submitted an invoice for a total amount of 1.86 -- 19861,000, I can't read that far, I'm sorry. $1,863,000. $1,863,000. So now the $1,200 per unit, the agreed upon price, in 2011 is now -- it is $925. The market for PHU's, due to economic developments of the -- that we're facing in the county have gone down from $1,200 in 2009 to today's market of $925. The wetland mitigation cost stayed the same. It was $60,000, remained $60,000. So that's the invoice I mentioned that Barron Collier submitted to pay them the amount due per the agreement. Now, this slide shows you a calculation, and on the left is the agreement cost. And the agreement cost, if you consider wetlands as well as PHU's, the total cost for those two would be $3.3 million plus. And if we had bought them at the time we got the permit, as we are required to, it would be $4.39 million. So we have, I think, the agreement -- per the agreement that was made, we saved over a million dollars in savings to the county, based on the agreement. I'm available for any questions, sir. CHAIRMAN COYLE: Commissioner Hiller? COMMISSIONER HILLER: My light wasn't on for this. I was waiting to hear him speak. CHAIRMAN COYLE: Does anybody want to hear the speakers first? COMMISSIONER FIALA: Yes. COMMISSIONER COLETTA: YeS• light! on. CHAIRMAN COYLE: Commissioner Henning, y our gh i COMMISSIONER HENNING: No. CHAIRMAN COYLE: Okay. You don't want to hear the speakers first? COMMISSIONER HENNING: No. CHAIRMAN COYLE: Go ahead. COMMISSIONER HENNING: Do we have a valid agreement? Page 111 Packet Page -541- 7/26/2011 Item 9.G. May 24, 2011 This was supposed to be consummated last year? The transaction was -- oh, it was February of this year, right? MR. AHMAD: Yes, sir. We -- if I understand you correctly, we should have paid the panther much earlier than we are doing it now, is that the question, sir? COMMISSIONER HENNING: No, the question is, is the agreement still valid? Is the agreement still valid, Mr. Klatzkow? MR. KLATZKOW: I believe it is. COMMISSIONER HENNING: It has a one year clause in it. The agreement was signed in February? MR. KLATZKOW: Yes. COMMISSIONER HENNING: What month is this? MR. KLATZKOW: May. COMMISSIONER HENNING: So we still have n valvi AN agreement. MR. KLATZKOW: Yes. We got the benefit of the bargain. COMMISSIONER HENNING: Well, is it a true bargain? MR. KLATZKOW: Yes, it is. Because we would have had to have paid for these mitigation credits way back when. MR. AHMAD: Yes. COMMISSIONER HENNING: But did the Barron Collier have the mitigation credits way back then? MR. KLATZKOW: No, but because of this agreement we were able to proceed with the road project. Without this agreement we never would have gotten the permit to proceed. COMMISSIONER HENNING: Okay. And you're saying the agency dictated where we get the PHU's and the wetland credits? MR. AHMAD: No, sir, the -- if you recall in the agreement, the -- both Barron Collier and the county applied for panther habitat. We were the co- applicant essentially trying to accelerate this project 0 with Barron Collier for the PHU's on that parcel that they owned. Page 112 Packet Page -542- 7/26/2011 Item 9.G. May 24, 2011 And they were going to give it to us at a discount. ` COMMISSIONER HENNING: What was my question again? This sure wasn't the answer to my question. MR. AHMAD: I apologize, I'll try again. Your question again, sir? I may have misunderstood it. COMMISSIONER HENNING: The question is, I believe it was, does Barron Collier have the PHU's? MR. AHMAD: They now do, yes. They didn't have it a while ago. They just got it. COMMISSIONER HENNING: How long ago? MR. AHMAD: They got it in March of this year. COMMISSIONER HENNING: Okay. But they didn't have it at the time that this agreement expired. MR. AHMAD: Correct. COMMISSIONER HENNING: So this agreement is expired. I'm reading that it has expired. But my question was, did we have to buy the units? Did the agency dictate where we bought the units? MR. OCHS: Did the agency dictate where we bought the units? MR. AHMAD: The agency had -- the reason we started the project without PHU's is because we were a co- applicant. The agency does not dictate where you obtain it, but by virtue of being a co- applicant, sir, they knew where we were getting our PHU's. COMMISSIONER HENNING: I don't know why you have a problem answering questions. MR. FEDER: Commissioner, the direct answer to your question is no, they didn't dictate that. Because we were able to get a 20 percent reduction to 1,200 rather than having to buy on the open market at 1,500 at that time, we entered into that agreement. We also felt as part of that agreement we were given one year to try and get the PHU's off of Starnes, and we sought to do that. Unfortunately that didn't come about. So now we're working with the Page 113 Packet Page -543- 7/26/2011 Item 9.G. May 24, 2011 1,200, which is a reduced rate that we would have had to pay -- COMMISSIONER HENNING: You would have had to pay then when you -- before, prior to construction. MR. FEDER: Exactly. And to be able to go to construction to get your permit, you have to pay for your PHU's at that time. So it was either us buying at an open market for 15, go into this deal with a reduced rate of 1,200, so that was where we were looking, or an alternative, we had hoped, have the PHU's off of Starnes to pay for it, which didn't unfortunately materialize. COMMISSIONER HENNING: Well, this agreement is between the Board of Commissioners. And I would hope that if the Board's going to vote on it, that we recognize that it is a valid -- that the agreement has not expired. And I think that's a valid point. CHAIRMAN COYLE: Yeah, I do too. But I'm confused by some of the answers you got to your questions, though. COMMISSIONER HENNING: Get them from Norm, you might get it -- CHAIRMAN COYLE: I just think there's a failure to communicate. Did you see that movie? Okay. The agreement was signed in March of 2009, not January or February of this year. MR. FEDER: That's correct. CHAIRMAN COYLE: Okay? COMMISSIONER HENNING: Right. CHAIRMAN COYLE: That agreement didn't have a one year expiration, it had a provision that said that if the government, Collier County Government can't get their own PHU's within a year they have to pay for these. MR. FEDER: Correct. CHAIRMAN COYLE: Did I say this right? MR. FEDER: Correct. CHAIRMAN COYLE: Okay. So we signed an agreement on Page 114 Packet Page -544- 7/26/2011 Item 9.G. May 24, 2011 March the 3rd or so, 2009. It was duly recorded in the Clerk's Office. It has been a valid agreement for the entire period of time. We tried to get our own panther habitat units on our property, but that was delayed for at least two years because of a dispute between the state and the Clerk about who would hold the money. MR. FEDER: Actually, the federal agency. CHAIRMAN COYLE: I'm sorry, the federal agency, okay. And that still has not been resolved. So we could not get our own panther habitat unit program going in time to meet the time deadline in this contract. MR. FEDER: Correct. CHAIRMAN COYLE: Therefore, we had already used the panther units in order to get the permit and we owed Barron Collier the money. MR. FEDER: At the agreed upon price of 1,200, which is a reduction from the going rate at the time. CHAIRMAN COYLE: Which in the aggregate saved us over a million dollars including the wetland mitigation and panther habitat. MR. FEDER: About 900,000, because it's 1,500 a unit, not 16. But yes, about $900,000. CHAIRMAN COYLE: Almost a million dollars, okay. So we had a valid contract. We were obligated to pay. We're now paying. We've enjoyed use of somebody else's money for two years. And we also saved approximately a million dollars on the deal. MR. FEDER: That's correct. CHAIRMAN COYLE: What's there to argue about? MR. FEDER: I'm not arguing, sir. CHAIRMAN COYLE: Okay, then why are you talking? MR. FEDER: I'm not. CHAIRMAN COYLE: Thank you. Okay, Commissioner Fiala? Ok COMMISSIONER FIALA: Speaker's first. Page 115 Packet Page -545- 7/26/2011 Item 9.G. May 24, 2011 CHAIRMAN COYLE: Oh, yes, that's right, public speakers. MR. MITCHELL: The first speaker is Duane Billington, and he'll be followed by Tim Nance. MR. BILLINGTON: For the record, Duane Billington. Curious about a few things. I believe Collier Corporation was given $50,000 an acre credit for donating right -of -way for the subject roadway, is that correct? And then, I would ask as a second part to that question, did that relieve them from any impact fee obligations? MR. FEDER: The first is they were not given $50,000 for the donation of lands. I believe they valued it relative to issues they had at that rate, which is about the going rate at the time in 2005. No, they were not given any impact fee credits for the right -of -way. MR. BILLINGTON: Okay. $50,000 an acre is for something that's contested, an unwilling seller where there's court fees involved. We have a willing seller here, I just want to point that out. The mitigation costs, are they included when we can set impact fees for transportation? MR. FEDER: Yes, they are. They're part of our impact fee process. MR. BILLINGTON: So then Barron Collier through their impact fees is contributing to these panther unit mitigations? MR. FEDER: Yes. MR. BILLINGTON: That's interesting. From a taxpayer's standpoint, you know, we wouldn't need to do this work on Oil Well Road if it wasn't for Ave Maria. MR. FEDER: No, that's not correct. MR. BILLINGTON: What, are we widening it for the prison out there beyond the end of Oil Well? MR. FEDER: No, we're widening it because we started at U.S. 41 on Immokalee Road, widened it out to Oil Well, six -laned the Page 116 Packet Page -546- 7/26/2011 Item 9.G. May 24, 2011 whole way. We're trying to establish a connection between the Immokalee community and the coastal community. Had worked with the Florida DOT to look at a project development environment study for alternates either to continue on Immokalee or out Oil Well Road. All of this actually before at least Ave Maria was to our attention. Once we realized that Ave Maria was about to occur and DOT had already looked at some of the environmental problems on Immokalee, the decision was to continue it relative to Oil Well, either to 29 or up Camp Keais, and that's become the further discussion. So the issue was to meet transportation needs in the county even before the issue with Ave Maria. MR. BILLINGTON: How would we need to do this at the current time if it weren't for Ave Maria? MR. FEDER: No, it sped things up. We probably would have been on Golden Gate Boulevard first, yes. MR. BILLINGTON: Okay. So you said 41 -- '► MR. OCHS: Commissioner, how do you want to handle this? CHAIRMAN COYLE: Well, this is not a debate about which road you were going to build when. It's a debate about complying with a valid contract. MR. BILLINGTON: I understand that. CHAIRMAN COYLE: Are we going to pay for a valid contract or are you going to suggest to us that we not pay? MR. BILLINGTON: Well, I'll just sum it up by saying you all are substantially outgunned when you sit down at the negotiating table with these contractors. You have not been serving the taxpayer well. CHAIRMAN COYLE: Million dollar savings didn't serve the taxpayers, huh? MR. BILLINGTON: You're paying more than what the going rate is now for mitigation credits. CHAIRMAN COYLE: Did you ever buy -- does (sic) anybody here ever buy stock and have it go down? Did you go back and ask 0 Page 117 Packet Page -547- 7/26/2011 Item 9.G. May 24, 2011 for the difference back? Does anybody here have a house value decline over the past years, maybe even below your mortgage? Did you go back and say, whoops, give me my money back, I want the difference now? That's what you're wanting us to do, right? Okay. MR. MITCHELL: Next speaker is Tim Nance. MR. NANCE: Good afternoon. Tim Nance. I think when we're discussing whether we should be paying Barron Collier Company a cash payment for anything, we need to look at the developer contribution agreement that was consummated in April, 2005 and some of the assumptions that were made at that time. Some of the assumptions included, we were going to build, despite the fact it's 12 miles through basically undeveloped territory, an urban four -lane road with a provision for six - laning. Some of the assumptions were that Ave Maria was going to ultimately be built out by the year 2016 with 11,000 residential units; that Barron Collier was going to be paying in excess of $60 million in road impact fees predicated upon the idea that there was going to be 50 -- 120 residential units by 2010 when in fact there turned out to be 374 residential units, according to the Ave Maria Stewardship District five -year fiscal monitoring report delivered to you in June, 2010. Associated with that report was a report, that to that date Barron Collier's development had contributed $9 million in transportation impact fees and that Collier County had borne the expense of $39 million to date on the road. So your concern, Commissioner Coyle, that we've been using Barron Collier's $1.9 million for a couple years pales in contrast to the fact that they've been using $30 million of Collier County's tax money where they should have had impact fees to pay for the construction of the road. It's my understanding that Barron Collier -- it's reported in the executive summary that Barron Collier Companies has allowed for an Page 118 Packet Page -548- 7/26/2011 Item 9.G. May 24, 2011 arrangement for the county to pursue creation of our own panther ` habitat units off our properties and that we have -- possibly have some alternatives. I think we should continue to try to apply our habitat units, request that Barron Collier give us a little more time, and I think that any cash payment of $1.9 million to Barron Collier Company for anything, for any cost associated with this road, is absolutely ludicrous. Thank you very much. CHAIRMAN COYLE: Mr. Nance, could I ask you a question? MR. NANCE: Yes, sir. CHAIRMAN COYLE: Most of what you pointed out is really a matter of timing. That is, that economic circumstances resulted in slower growth in Ave Maria, consequently -- MR. NANCE: I agree, sir, that -- CHAIRMAN COYLE: At what time, what day did you forecast that the market was going to collapse? MR. NANCE: I did not sir, and neither did you, did you? CHAIRMAN COYLE: That's right. MR. NANCE: That's correct. CHAIRMAN COYLE: So in order to look back and say you negotiated a bad contract, you would have to understand or you would have to believe that the market was going to crash shortly thereafter. To go back -- to use current circumstances, to go back and second guess a decision that was made five years or more ago is, to say the least, disingenuous. But thank you very much for your crystal -- MR. NANCE: Well, I think, sir, frankly it's very disingenuous for Barron Collier to hold us to this sort of a request when the taxpayers of Collier County have been very accommodating to all these benchmarks and dates that have failed. For us to get all excited about one more in a stream of about 10 or 12 assumptions that were in error I think is irresponsible for the taxpayers of the county. CHAIRMAN COYLE: So this is about punishing Barron Collier Page 119 Packet Page -549- 7/26/2011 Item 9.G. May 24, 2011 Corporation. It's all about -- MR. NANCE: No, sir, I think we've treated them very well, sir, don't you? CHAIRMAN COYLE: Okay, but you don't want to have that happen, right? MR. NANCE: No. I think that they ought to give us a little break since we've given them a break. CHAIRMAN COYLE: Okay. And you don't think we should adhere to a contract that we signed? MR. NANCE: No, sir. You want to hear what you agreed to? The county, in good faith, commits to complete construction of the project, meaning Oil Well Road, by 2010 subject to its road impact fee structure remaining substantially intact, which it hasn't, receipt of sufficient road impact fees, which have not occurred, and delays caused by matters typically considered to be force majeure. I think sir, that a variance in this case falls within one of those exceptions. CHAIRMAN COYLE: Do you? MR. NANCE: Yes, sir, I do. CHAIRMAN COYLE: Good, good. Thanks for your legal advice. Okay, who's next? MR. MITCHELL: Sir, that was your final speaker. CHAIRMAN COYLE: Commissioner Fiala? COMMISSIONER FIALA: Yes. Seems first there were attacks on Arthrex, now there are attacks on Barron Collier Company. I don't understand what all these attacks are. Aren't we supposed to be addressing the issue? Now, I'm going to just put it in really common sense simple terms. I went out and bought a suit for work a couple years ago because I really needed to wear a new suit to work. But I put it on my ! charge because I didn't have all the money and 1 was hoping to find a Page 120 Packet Page -550- 7/26/2011 Item 9.G. May 24, 2011 blouse that matched it. But I wore that suit and I wore that suit. And C then time comes, I haven't finished paying my charge off but here I notice that the suit is now on sale so I want a lower rate because I didn't know it was going to go on sale. So I deserve a lower rate, just take that off my charge card because I don't need to pay it. That's about what we're saying. That doesn't make any sense at all. At the time we thought we were getting a good deal, it was negotiated from $1,500 down to 1,200. That was good for us. And it served the purpose because we wanted to move forward with this road. We had to have it. Yes, the other things didn't transpire as much as we wanted them to take place so that we could have our Starnes property used as the PHU's. It didn't come to be, there have been hold -ups all along the way, but we signed an agreement and we should honor that agreement. And so I would make a motion that yes, indeed, we authorize a budget amendment for the purpose of funding the necessary PHU's required for the Oil Well Road project per the terms of our agreement in the amount of -- total amount of 1,800 -- I'm sorry, $1,863,000, with -- and I want to mention we are recognizing that the agreement that we had signed is still a valid agreement. CHAIRMAN COYLE: Thank you very much. COMMISSIONER COLETTA: I'll second that. CHAIRMAN COYLE: Motion by Commissioner Fiala, second by Commissioner Coletta. Commissioner Coletta, go ahead. COMMISSIONER COLETTA: I'll tell you, it's been forever trying to get a four -lane road to Immokalee. Been working on both ends of the equation from Naples to Immokalee and from Fort Myers to Immokalee. Eighty -two we brought that into the strategic modal system. We got a tremendous amount of support. Money ran out. We're not quite there. Immokalee's got great visions, despite the fact they don't have an active master plan, but they've got great visions. 0 Page 121 Packet Page -551- 7/26/2011 Item 9.G. May 24, 2011 They need a four -lane road. This is one of those things that would never have happened probably if it wasn't for the money we received from Ave Maria to get to the point we are. Once we get down there to Camp Keais we only have to go down Camp Keais and we make the connection to Immokalee. Make all the difference in the world to be able to have a four -lane road go through there. Mr. Feder, for the public, one more time, would you be able to state exactly what Barron Collier's commitment to this deal was? MR. FEDER: Exactly without in front of me, possibly not, but essentially yes. COMMISSIONER HILLER: I've got the Developer Contribution Agreement. Would you like it? CHAIRMAN COYLE: Commissioner Hiller -- COMMISSIONER COLETTA: Can I ask you to take charge of your meeting? AN CHAIRMAN COYLE: Commissioner Hiller -- COMMISSIONER HILLER: I just wanted to offer it to help. CHAIRMAN COYLE: Commissioner Hiller -- COMMISSIONER COLETTA: Take charge of your meeting. CHAIRMAN COYLE: -- you don't have the floor. COMMISSIONER HILLER: I just wanted to help him. CHAIRMAN COYLE: You don't have the floor, Commissioner Hiller. MR. FEDER: Commissioner, thank you, but I think I can get the essence of it. Basically they provided right -of -way from what was essentially 100 feet up to 200 feet across their boundary on the -- not only Oil Well but also on Immokalee if we ever pursue it in the future and on Camp Keais. They provided stormwater management on their property so that we didn't have to buy retention areas. Essentially five acres I believe every three miles. In essence, the equivalent. Page 122 Packet Page -552- 7/26/2011 Item 9.G. May 24, 2011 They ended up going into a provision for fill at their cost, but we `. ended up as it turned out with the construction not pursuing that. They also designed it with their funds up front. That they did get impact fee -- will get impact fee credit for, for the design. But they fronted the money and then it comes back to them, only in half of the impact fees that they accrue in a year so that we didn't have that bill coming and stopping any impact fee collections even under the original concepts and the original growth rate. So they did provide quite a bit toward the project, help bring it forward. And as I said, we also are still trying to connect to Immokalee, as you raised. COMMISSIONER COLETTA: Thank you, Mr. Feder. I appreciate that. And I think we ought to get on with it. CHAIRMAN COYLE: All in favor of the motion, please signify by saying aye. COMMISSIONER COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COYLE: Aye. Any opposed by like sign? COMMISSIONER HILLER: Aye. CHAIRMAN COYLE: It passes 4 -1, with Commissioner Hiller dissenting. And I would just like to make an observation for the audience and the television viewers, because we're going to see more of this as we go through the day, that much of what you heard is political rhetoric by a group of people who are pushing a particular candidate and a particular position for Collier County Commission. So much of this public comment and much of the comment from some members of this board are political statements more than anything else. But nevertheless, where do we go next? COMMISSIONER HENNING: I have a request. Page 123 Packet Page -553- 7/26/2011 Item 9.G. May 24, 2011 CHAIRMAN COYLE: Okay. COMMISSIONER HENNING: We're trying to do the public's business. Is it possible that we can just stay to the item on the agenda? We can do it as a Board. We can't demand the public does that, but shouldn't we do that? CHAIRMAN COYLE: What did you say, stage? COMMISSIONER HENNING: Stay on the topic. CHAIRMAN COYLE: Stay on the topic. Well, I wish we could, but the public just won't let us do that, nor will some of the members of the Board let us do that. COMMISSIONER HENNING: Mr. Chairman, you're the Chair and you know the items on the agenda, just like anybody else. I think it's your duty to point out when a Commissioner strays from the topic. CHAIRMAN COYLE: I'll be happy to do that. COMMISSIONER HENNING: Thanks, I would appreciate that. A9 CHAIRMAN COYLE: Thank you. Okay, where do we go from now? Item #I OD RECOMMENDATION TO APPROVE A FIRST AMENDMENT TO LEASE AGREEMENT, A/K/A CATTLE LEASE, FOR THE PEPPER RANCH PRESERVE UNDER THE CONSERVATION COLLIER LAND ACQUISITION PROGRAM AND DIRECT THE COUNTY MANAGER, OR HIS DESIGNEE, TO IMPLEMENT THE LEASE AMENDMENT TERMS — MOTION TO CONTINUE — APPROVED MR. OCHS: We go to Item I O(D) on your agenda, which was previously Item 16(E)(3). It's a rec -- CHAIRMAN COYLE: Did you say I O(D)? MR. OCHS: Yes, IO(D), Delta, yes, sir. Page 124 Packet Page -554- 7/26/2011 Item 9.G. 5/24/2011 Item 10.C. 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 20 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 ao 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 V_ 6 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 n approximately 529 acres within Camp Keais Strand (the "Mitigation Area "), which permits t .o include approval of a mitigation plan for, a Section 404 permit (Application number 2006-7018 - C-D IP) with the U.S. Army Corps of Engineers (the "USACE ") (the " USACE Permit's 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 V 2 Y V p WHEREAS, the County wishes to purchase 30.86 wetlands mitigation credits that will e 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 N o 0 o WHEREAS, with the approval of USACE and United States Fish and Wildlife Service g o ( "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 0 WHEREAS, the County may wish to purchase up to 2,000 Panther Credits from Baron Collier pursuant to the terms and conditions of this Agreement, with the final number of Panther Credits required by the County to be later detennined by USFWS. o� WITNESSETH p 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 patties 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. I Packet Page -227- Packet Page -555- 7/26/2011 Item 9.G. 5/24/2011 Item 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 rte— to the specific number of Wetlands Credits and Panther Credits enumerated herein. Any excess M 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 y 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 rs panther or wetlands mitigation credits. 0 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 " Stames Parcel." In the event the County is able to secure final approval of County PHUs on the Stames Property within one (1) year from the Effective Date of this Agreement, then -the following terns 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. Byway 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 hank and reserve the 1.000 County PHUs for the benefit of Barron Collier in lieu of the D­. Packet Page -228- Packet Page -556- - -- 7/26/2011 Item 9.G. 5/24/2011 Item 10.C. 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 tents, 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. M 4. PURCHASE PRICE; PAYMENT. The estimated aggregate "Purchase Price, for the Wetlands Credits and Panther Credits is Three Million Five Hundred Forty-Nine w 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: �j 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 (52,068,200). 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 (li2) shall be paid upon approval of the permits for the lvlitigation Plan and Barron Collier's payment of the D....... ] .. r 7 Packet Page -229- Packet Page -557- 7/26/2011 Item 9.G. 5/24/2011 Item 10.C. 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 faiture. 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 00 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 Qom, 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 pennittee. The parties accordingly agree as follows: a• r� 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 ll.... -. A ..rI Packet Page -230- Packet Page -558- 7/26/2011 Item 9.G. 5/24/2011 Item 1O.C. 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 C4 reject the final permit and conditions. Should either party withdraw from the ERP Permit O0 application, the terms of this Agreement shall terminate. rn M c7 Legal Matters w ,. I 6. This Agreement shall not be constructed or characterized as a development Zr- agreement under the Florida Local Government Development Agreement Act. d- 7. The burdens of this Agreement shall be binding upon, and the benefits of this o 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: 2835 S. Horseshoe Drive 01...1. G 11c, Packet Page -231- Packet Page -559- 7/26/2011 Item 9.G. 5/24/2011 Item 10.C. 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; Notice shall be deemed to have been given on the next successive business day to the date of the o 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. Packet Page -232- Packet Page -560- George L. Vamadoe, Esquire M Cheffy Passidomo Wilson & Johnson, LLP 821 5`^ Avenue South Naples, Florida 34102 w Phone: 239 - 261 -9300 Fax: 239- 261 -9782 M C!+ Notice shall be deemed to have been given on the next successive business day to the date of the o 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. Packet Page -232- Packet Page -560- m rn M c� a. M cG 0 -_ 7/26/2011 Item 9.G. 5/24/2011 Item 10.C. 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 permitt ed 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.'B1tQCK, Clerk Clerk 4• >eat ATTEST: KIM D. DAVIDSON A� KIM D. DAVIDSON Corporate Seal BOARD OF COUNTY COMMISSIONERS COLLIER/ 7, FLORID,4 By: 11 // FLORID By: Donna Fiala, Chairman BARRON COLLIER PARTNERSHIP, LLLP a �: � Y /'`Juliet C. Sproul, A nt By: Bradley A. Boa Agent D....., 7 ,. C 7 Packet Page -233- Packet Page -561- Barron Collier Investments, Ltd. 2600 Golden Gate Parkway Naples, FL 34105 Phase (239)262 -2600 / Fax (239)262 -2589 COLLIER COUNTY Customer M COWER COUNTY Date Invoice# Amount 03/02/2011 INVO0474 1,863,120.00 Panther Credits RENT TO: 7/26/2011 Item 9.G. 5/24/2011 Item 10.C. 2600 Golden Gate Parkway Naples, FL 34105 Reference 1,863,120.00 Total Invoice Amount 1,863,120.00 I'L[AS[ S " °.,,,r ne,e 11 ry 11M.1 neM1TTANCE Packet Page -234- Packet Page -562-