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Agenda 07/26/2011 Item #16C5Agenda Changes Board of County Commissioners Meeting July 26, 2011 Continue Item 16D6 to the September 13, 2011 BCC Meeting: Request that the Board of County Commissioners review and approve the County Attorney's recommendation to waive any potential ethics conflict for a Code Enforcement Board member based on Ch. 112, Florida Statutes. (Original request was from Commissioner Hiller to have this item moved to the Regular agenda; Staff requested item is continued due to fact the individual in question isn't able to attend this meeting.) Continue Item 16F1 to the September 13, 2011 BCC Meeting: Modification to Contract #11 -5704 for the Pelican Bay Community Crosswalks to Bateman Contracting, LLP. (Staffs request to further address the vendor's concerns regarding the scheduling of the crosswalk construction.) Continue Item 16F3 to the September 13, 2011 BCC Meeting: Recommendation to approve and authorize the Chairman to sign Amendment #2 to the Friends of Rookery Bay, Inc. FY 11 Tourist Development Tax Grant Agreement to change the current funding source from Category C -2 to Tourism Promotion Fund 184 as a Category B marketing grant. (Staff and Commissioner Hiller's separate requests in response to grantee's request for continuance to resolve questions raised by the Clerk's Finance Department) Move Item 16D14 to Item 1OH: Recommendation to approve the Collier County 5 -Year HUD Consolidated Plan for FY 2011 -2016; One Year HUD Action Plan FY 2011 -2012 and revised Citizen Participation Plan, and to sign the supporting resolution and certifications for submission to the United States Department of Housing and Urban Development (HUD). (Commissioner Hiller's request) Move Item 16D1 to Item 101: Recommendation to approve final submission of the Disaster Recovery Initiative 2008 Disaster Recovery Enhancement Funds (DREF) application to the Florida Department of Community Affairs for funding in the amount of $3,323,962. (Commissioner Hiller's request) Move Item 16A19 to Item 10J: Recommendation for the Board of County Commissioners (Board) to direct the County Manager or designee to create and fund a project via budget amendment within Parks and Recreation Capital Fund (306) for the specific purpose of establishing a public All Terrain Vehicle (ATV) park and to move forward with public involvement, concept evaluations, cost comparisons and then come back to the Board with alternatives and a final recommendation to implement the project. (Commissioner Hiller's request) Move Item 16C5 to Item 1OK: Recommendation to approve the Renewal and Amendment of the Agreement for Delivery and Reuse of Reclaimed Water between The Club Pelican Bay, Inc. and the Board of County Commissioners of Collier County, Florida, as the Ex- Officio Governing Board of the Collier County Water -Sewer District. (Commissioner Hiller's request) Move Item 16F5 to Item 10L: Recommendation to adopt a resolution approving amendments (appropriating grants, donations, contributions or insurance proceeds) to the Fiscal Year 2010 -11 Adopted Budget. (Staffs request) Companion Item to 10A Move Item 16131 to Item 13B1: Recommendation to approve Local Advisory Board members and CRA staff attendance at Florida Redevelopment Association 2011 Annual Conference including payment of attendees' registration, lodging, travel and per diem expenses from the Bayshore Gateway Triangle Trust Fund (187) budget and declare the conference attendance and training received as a valid public purpose. (Estimated Fiscal Impact approximately $839 per person) (Commissioner Hiller's request) Move Item 17D to Item 8E: Recommendation to adopt a resolution approving amendments (appropriating carry forward, transfers and supplemental revenue) to the Fiscal Year 2010 -11 Adopted Budget. (Staff's request) This item to be heard subsequent to Items IOA and IOJ. Note: Items 9G and 12A are companion items. (County Attorney's request) Item 16D7: Advisory Committee Recommendations as follows: The Tourist Development Council recommended approval of this item by a vote of 6 -1 on 7/21/2011 subject to verification by the Clerk that TDC funds can be used to fund this item. The Council also made a finding that this item supports tourism and serves a valid public purpose. (Staffs request) Item 16D19: Bid Number should read #11 -5692; not #11 -5697 as shown on the agenda and the Executive Summary. (Staffs request) Time Certain Items: Item 1OG to be heard at 9:45 a.m. Item 8C to be heard at 10:15 a.m. Item 8D to be heard immediately following Item 8C Item 8B to be heard at 11:00 a.m. Item 10C to be heard at 1:00 p.m. Item 8A to be heard at 2:00 p.m. 7/28/2011 11:33 AM 7/26/2011 Item 16.C.5. EXECUTIVE SUMMARY Recommendation to approve the Renewal and Amendment of the Agreement for Delivery and Reuse of Reclaimed Water between The Club Pelican Bay, Inc. and the Board of County Commissioners of Collier County, Florida, as the Ex- Officio Governing Board of the Collier County Water -Sewer District. OBJECTIVE: That the Board of County Commissioners, Ex- officio, the Governing Board of the Collier County Water -Sewer District (District) approve the Renewal and Amendment of the Agreement for Delivery and Reuse of Reclaimed Water (Renewal and Amendment) between The Club Pelican Bay, Inc., (User) and the District. CONSIDERATIONS: On August 17, 2006, Agenda Item 16 F. 1., the District and User entered into the Agreement for Delivery and Reuse of Reclaimed Water (Agreement), which allows for renewal and amendment every five years. Both parties desire to renew and amend the Agreement for a five year term. Consistent with the Agreement, both parties may further renew for successive five year periods, unless amended or terminated as provided by the Agreement. This five year renewal term will expire August 17, 2016. The twenty -five year term established by the Agreement is not amended. The Renewal and Amendment also includes an amendment to Section Fourteen of the Agreement, titled Notification of District, that will update the District's contact information. -- Presently staff and the County Attorney's Office are in the process of modernizing the standard template for agreements for delivery and reuse of reclaimed water. Once the template is Board approved, the District will initiate negotiations with all users, to include Pelican Bay for incorporation of the standard terms. If mutually agreeable, Pelican Bay's agreement may be further revised prior to the end of the five year renewal tern. LEGAL CONSIDERATIONS: This item is legally sufficient and requires a majority vote. - JB W FISCAL IMPACT: No fiscal impact is associated with the renewal and amendment of the Agreement because its rates are in accordance with the current rate structure; however, there will be a fee of less than $20.00 to record the renewal. Funds are available in Fund 408, Cost Center 233314. GROWTH MANAGEMENT IMPACT: There is no Growth Management Impact associated with the Agreement. RECOMMENDATION: That the Board of County Commissioners, as the Ex- officio Governing Board of the Collier County Water -Sewer District, approve the renewal and amendment of the Agreement for Delivery and Reuse of Reclaimed Water between User and the District and, by approval of this Executive Summary, authorize the Chairman to execute the renewal Agreement on behalf of the District and authorize the County Manager or his designee to record the renewal Agreement in the Collier County Official Records. I PREPARED BY: Danette Huff, Reuse Manager, Wastewater Department Packet Page -1595- 7/26/2011 Item 16.C.5. COLLIER COUNTY Board of County Commissioners Item Number: 16.C.5. Item Summary: Recommendation to approve the Renewal and Amendment of the Agreement for Delivery and Reuse of Reclaimed Water between The Club Pelican Bay, Inc. and the Board of County Commissioners of Collier County, Florida, as the Ex- Officio Governing Board of the Collier County Water -Sewer District. Meeting Date: 7/26/2011 Prepared By Name: Danette Huff Title: Manager - Irrigation Quality,Wastewater 7/1/2011 1:56:00 PM Submitted by Title: Manager- Irrigation Quality,Wastewater Name: Danette Huff 7/1/2011 1:56:02 PM Approved By Name: HapkeMargie Title: VALUE MISSING Date: 7 /1/2011 2:59:18 PM Name: WidesTom Title: Director - Operations Support - PUD,Utilities Fina Date: 7/4/20119:16:13 AM Name: Steve Messner Title: Plant Manager, Water Date: 7 /11/2011 10:05:11 AM Name: JohnssenBeth Date: 7/11/2011 12:06:56 PM Packet Page -1596- 7/26/2011 Item 16.C.5. Name: WhiteJennifer Title: Assistant County Attomey,County Attorney Date: 7/12/2011 9:19:52 AM Name: YilmazGeorge Title: Director- Wastewater, Wastewater Date: 7/12/2011 11:32:29 AM Name: KlatzkowJeff Title: County Attorney, Date: 7 /12/2011 3:16:14 PM Name: GreenwaldRandy Title: Management/Budget Analyst,Office of Management & B Date: 7/13/2011 11:31:29 AM Name: IsacksonMark Title: Director -Corp Financial and Mgmt Svs,CMO Date: 7 /18/2011 5:24:09 PM Packet Page -1S97- u_ v' VP 7/26/2011 Item 16.C.5. ORIGINAL DOCUMENTS CHECKLIST & ROUT .. - __ TO ACCOMPANY ALL ORIGINAL DOCUMENTS S O THE BOARD OF COUNTY COMMISSIONERS OFFICE FO i[�tl `TURF Print on pink paper. nnuch to original document. Original documents should be hand delivered to the Board Office- The completed routing slip ; cti oral documents are to be forwarded to the Board Office only after the Bo m ROUTING SLIP ite.) Complete routing lines Bl through M4 as appropriate for additional signatures, dates, and/or information needed. If the document is already complete with the .. ... _ _ __ .,___ a, .0 .....,. x, ......,.a... d,. r1,, ,3 rkt and rnrward to Sue Filson (line N51. exception of the Chairman's at abate maw a tine dim Route to Addressee(s) (List in muting order 1. muun .aa,a ........... ... -, Office Initials Date 2. appropriate- Initial Applicable 3. Original document has been signedlinitialed for legal sufficiency. (All documents to be Agenda Item Number 4. signed by the Chairman, with the exception of most letters, must be reviewed and signed 5. Sue Filson, Executive Manager Board of County Commissioners 11 Number of Original 6. Minutes and Records Clerk of Court's Office LNJ e, ♦ %1 PRIMARY CONTACT INFORMATION (The primary contact is the holder of the original document pending BCC approval. Nomaaliy the primary contact is the person who created/prcpared the executive summary. Primary contact infomaion is needed in the event one of the addressees above, including Sue Filson, need to contact staff for additional or missing information. NI original documents needing the BCC Chairman's signature are to be delivered to the BCC office only after the BCC has acted to appmvc the M , Name of Primary Staff r_ I �C ` Phone Number N/A (Not Contact appropriate- Initial Applicable Agenda Date Item was Original document has been signedlinitialed for legal sufficiency. (All documents to be Agenda Item Number Approved by the BCC signed by the Chairman, with the exception of most letters, must be reviewed and signed Type of Document by the Office of the County Attorney. This includes signature pages from ordinances, 11 Number of Original { Attached LNJ e, ♦ %1 Documents Attached ` INSTRUCTIONS & CHECKLIST 1 911 z -o6 h Fomes/ County Fortes/ BCC Forms/ Original Documents Routine Siio W W S Orieinal 9.03.04, Revised 1.26.05, Revised 2.24.05 Packet Page -1598- Initial the Yes column or mark "N /A' in the Not Applicable column, whichever is Yes N/A (Not appropriate- Initial Applicable 1. Original document has been signedlinitialed for legal sufficiency. (All documents to be signed by the Chairman, with the exception of most letters, must be reviewed and signed by the Office of the County Attorney. This includes signature pages from ordinances, resolutions, etc. signed by the County Attorney's Office and signature pages from contracts, 3-,V ements, etc. that have been fully executed by all parties except the BCC Chairman -i Clerk to the Board and possibly State Officials. 2. All handwrii.:. n strike - through and revisions have been initialed by the County Attorney's rY\ 1 Office and alf other parties except the BCC Chairman and the Clerk to the Board 3. The Chairman's signature line date has been entered as the date of BCC approval of the document or the final negotiated contract date whichever is applicable. 4. "Sign here" tabs are placed on the appropriate pages indicating where the Chairman's signature and initials are required. 5. In most cases (some contracts are an exception), the original document and this routing slip should be provided to Sue Filson in the BCC office within 24 hours of BCC approval. r��` Some documents are time sensitive and require forwarding to Tallahassee within a certain 1 �' -- time frame or the BCC's actions are nullified. Be aware of your deadlines! 6. The document was approved by the BCC on Z Ct. (enter date) and all changes N!A isnot made during the meeting have been incorpo in he attached document. The P -` 1116 option.fot County Attorney's Office has reviewed the qhanges, if applicable- line @t 1 911 z -o6 h Fomes/ County Fortes/ BCC Forms/ Original Documents Routine Siio W W S Orieinal 9.03.04, Revised 1.26.05, Revised 2.24.05 Packet Page -1598- 7/26/2011 Item 16.C.5. 16F I P EXECUTIVE SUMMARY Recommendation to approve an updated renewal Agreement for Delivery and Reuse of Reclaimed Water, and terminate the existing agreement between the Collier County Water -Sewer District, and The Club Pelican Bay, Inc. OBJECTIVE: That the Board of County Commissioners, Ex- officio, the Governing Board of the Collier County Water -Sewer District ( "District') approve an updated renewal Agreement for the Delivery and Reuse of Reclaimed Water, and terminate the existing Reclaimed Water Agreement between the County and The Club Pelican Bay, Inc., dated August 13, 1996. CONSIDERATION: The District and The Club Pelican Bay, Inc. have agreed to terminate the existing Agreement for Delivery and Reuse of Reclaimed Water and to concurrently enter into a new Reclaimed Water Agreement ( "the renewal Agreement'). County Staff has met with representatives of The Club Pelican Bay, Inc. and has reached concurrence on operational conditions and terms that are included in the renewal Agreement. The renewal Agreement addresses concerns regarding long -term resources for reclaimed water usage for irrigation. It specifies, according to its provisions, that for twenty -five (25) years from its "date of commencement' the District will provide reclaimed water to The Club Pelican Bay, Inc. at the specifically described service site. In addition, this renewal Agreement has provisions to be amended at five (5) year intervals to coincide with other similar existing agreements. The renewal Agreement provides that the District will supply, and The Club Pelican Bay, Inc. will accept, five hundred thousand (500,000) gallons per day of reclaimed water on a take or pay basis. Also, during only the initial five (5) year time period following the effective date of this Agreement (subject to having such extra reclaimed water available for delivery to the Property as such month -to -month availability is determined by the District), will attempt to supply additional reclaimed water to the Property. Charges will also apply for additional reuse water provided pursuant to section 8 of this agreement. The renewal Agreement specifies a 180 -day notification timeline requirement prior to termination or transfer of the renewal Agreement. If The Club Pelican Bay, Inc. should annex into a municipal corporation, the District has the right to terminate the renewal Agreement. Approval of this renewal Agreement by the County Manager is subject to formal ratification by the Board of County Commissioners. If the decision by the County Manager is not ratified by the Board, this renewal Agreement shall not be enforceable against Collier County only to the extent authorized by law in the absence of such ratification by the Board. FISCAL IMPACT: No fiscal impact is associated with the renewal Agreement because its rates are in accordance with the current rate structure; however, there will be a fee of less than $25.00 to record the renewal Agreement. Funds are available in Fund 408, Cost Center 233313, and Account 649030. GROWTH MANAGEMENT IMPACT: There is no Growth Management Impact associated with the renewal Agreement. The renewal Agreement is consistent with the 2002 Collier County Growth Management Plan and the Public Facilities Element - Sanitary Sewer Sub - Element. Packet Page -1599- 7/26/2011 Item 16.C.5. ,6F 1R RECOMMENDATION: Staff recommends that the Board of County Commissioners, Ex- Officio, the Governing Board of the Collier County Water -Sewer District approve the renewal Delivery and Reuse of Reclaimed Water Agreement with The Club Pelican Bay, Inc.; and by approval of this Executive Summary, authorize Chairman Halas to execute the renewal Agreement; on behalf of the District and also authorize Staff to record the renewal Agreement in the Collier County Official Records. PREPARED BY: Judy Johnson, Wastewater Administrative Assistant Packet Page -1600- 7/26/2011 Item 16.C.5. lbp 1 K AGREEMENT FOR DELIVERY AND REUSE OF RECLAIMED WATER THIS AGREEMENT is made and entered into this 17th day of August 2006, by and between The Club Pelican Bay, Inc. (hereinafter referred to as "User ") and the BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, AS THE EX- OFFICIO GOVERNING BOARD OF THE COLLIER COUNTY WATER - SEWER DISTRICT, (hereinafter referred to as "District'). User is used as singular or plural, as context requires. WHEREAS, the District is desirous of obtaining long -term disposal facilities for treated wastewater effluent and/or supplemental water resources (herein referred to as "reclaimed water ") provided to the User by the District: and WHEREAS, User is desirous of obtaining from the District Reclaimed Water as a long term resource for approved uses located only upon the one hundred and sixty (160) acres described in exhibit A, attached hereto (hereinafter referred to as "Property"). NOW, THEREFORE, the parties agree as follows: 1. USER REPRESENTS AND WARRANTS RECORD OWNERSHIP. User has requested that the District provide available reclaimed water to User. User hereby represents and warrants to District that User constitutes all individuals who and/or entities that are record owners of the Property. 2. TAKE OR PAY QUANTITY; AGREEMENT REVIEW EVERY FIVE YEARS. The User agrees to accept from the District, and irrespective of actual usage up to 500,000 gallons per day, to pay for 500,000 Gallons Per Day of reclaimed water for approved use for a period of twenty -five (25) years from the effective date of this Agreement. At the end of the initial five (5) year period, and within approximately ninety (90) days before the end of each successive five (5) year period thereafter, this Agreement shall be amended and revised to reflect all of the terms and provisions then being incorporated in like agreements by the District for delivery and use of reclaimed water. Subsequent to the initial twenty -five (25) year term of this Agreement, this Agreement shall automatically be renewed for only successive five (5) year periods, unless terminated by either party as provided for herein. During only the initial five (5) year time period following the effective date of this Agreement, the District (subject to having such extra reclaimed water available for delivery to the Property as such month -to -month availability is detemuned by the District), will attempt to supply additional reclaimed water to the Property. Charges will also apply for any additional reuse water provided pursuant to section 8 of this agreement. I Packet Page -1601- 7/26/2011 Item 16.C.5. bF 1 R 3. QUALITY AND USE OF RECLAIMED WATER The reclaimed water shall be supplemental water resources and/or wastewater effluent that has been treated for irrigation use to the standards now and hereafter required by the Florida Department of Environmental Protection. User shall accept the reclaimed water delivered by the District and use it only on the Property always in full compliance with then applicable local, state and federal rules and regulations. Except for normal and customary irrigation use this water may incidentally be sprayed into the lakes, ponds, ditches and sloughs on the Property. No such water shall be discharged into the surface waters of the State of Florida without written authorization from the South Florida Water Management District and the Department of Environmental Protection, as applicable. User shall take reasonable precautions, including signs, labeling and color - coding to prevent confusion between reclaimed water and other water sources downstream of the point of delivery. 4. POINT OF DELIVERY DEFINED. The point of delivery of reclaimed water shall be where the reclaimed water passes "TO THE USER'S ON -SITE LAKE STORAGE" as described on exhibit B attached hereto. The District shall own, operate and maintain the reclaimed water distribution system and shall be deemed to be in possession and control of the reclaimed water therein only upstream of the point of delivery. The User shall own, operate and maintain the reclaimed water distribution system and related lake storage facility, and shall be deemed to be in possession and control of the reclaimed water therein downstream of the point of delivery. "Point of delivery" is used as singular or plural, as the context requires. 5. DISTRICT RESPONSIBILITIES UPSTREAM OF THE POINT OF DELIVERY. Except to the extent, if any, clearly and expressly specified in the Special Provisions Paragraph in this Agreement to the contrary, the District shall be responsible for the design, construction, permitting, financing of all costs and placing in operation the reclaimed water delivery system up to the point of delivery, and the District shall bear all costs of operation and maintenance of the reclaimed water delivery system only up to the point of delivery. 6. USER RESPONSIBILITIES DOWNSTREAM OF THE POINT OF DELIVERY. Except to the extent, if any, clearly and expressly specified in the Special Provisions Paragraph in this Agreement to the contrary, User shall take full responsibility for the design, construction, permitting, financing of all costs and placing in operation the reclaimed water delivery system downstream of the point of delivery. The User shall bear all costs of operation and maintenance of the reclaimed water delivery system downstream of the point of delivery. 7. STANDARD OF MAINTENANCE. User shall maintain all reclaimed water distribution facilities downstream of the point of delivery at current and then existing standards equal to the maintenance standards for comparable utility facilities maintained by the District. After reasonable notice to User, the District 2 Packet Page -1602- 7/26/2011 Item 16.C.5. kof j R shall have the right, but not the duty, to enter upon the Property to correct any maintenance deficiencies and charge the User all of the expenses therefore. 8. RATE TO BE CHARGED FOR RECLAIMED WATER. For having available and/or fiunishing the reclaimed water, the District shall initially charge and User shall pay the sum of 29 cents per 1,000 gallons (herein referred to as the initial "reclaimed water rate ") for reclaimed water. 9. RATE CHANGES. The District reserves its rights to from time -to -time decrease or increase the reclaimed water rate subject to providing at least thirty (30) days prior written notice of such change to User. Any increase in the reclaimed water rate shall only arise from the District's increase in costs of representing production, treatment and delivery of reclaimed water or as the result of a rate study or Ordinance that determines that an increase in the reclaimed water rate is required to finance the costs of production, treatment and delivery of reclaimed water. Any rate increase shall be the same increase or rate change to similarly situated users. The intent and purpose is to supply the subject reclaimed water to User that is then being charged to other similarly situated Users, the same being other Users that are then in the same rate class as User. 10. BILLING. Subject to the terms and conditions of this Agreement, the DISTRICT shall invoice The Club Pelican Bay, Inc. for services on a monthly basis in accordance with billing cycle meter readings, calculated charges and other applicable service fees. The invoice shall include, the billing period of service, the amount of Irrigation quality service flows as metered and billed, the applicable rate(s) for that service, the total dollar and cents amount of the invoice, contact telephone number for questions regarding the invoice. The Club Pelican Bay, Inc. shall deliver payment to the District in full based upon the invoice amount by the due date of the invoice from the DISTRICT. If payment is not received by the District by the due date on the invoice after User's receipt of the invoice, The Club Pelican Bay, Inc. may be liable for the payment of any penalties on the outstanding balance as established from time to time by the DISTRICT, which penalty charges being the same as those applied to all other customers of the DISTRICT as established by County Ordinance or Resolution. The charging of penalties shall not extend the due date for any payment and any failure to pay may be considered a default under the terms of this Agreement. As specified by Collier County Ordinance No. 2003 -71, as amended, the subject Irrigation Quality water service from the DISTRICT to The Club Pelican Bay, Inc. can be temporarily terminated when payment(s) is /are delinquent. 11. UNPAID FEES ARE A STATUTORY LIEN. The User acknowledges that in the event the fees, rates or charges of the facilities provided for under this Agreement shall not be paid (become delinquent), any unpaid balance and all interest accruing thereon shall be a lien on the affected property pursuant to Chapter 153, Part 11, Florida Statutes, as amended, and pursuant to the Special 3 Packet Page -1603- 7/26/2011 Item 16.C.5. 46F I R Act that pertains to the District, which is now Chapter 2003 -353, Laws of Florida. 12. RECLADAED WATER AVAILABILITY. The District shall make a diligent effort to make available to User the agreed upon minimum quantity of reclaimed water over a 24 -hour period. It is the express intention of this Agreement that this minimum quantity of reclaimed water shall be available for withdrawal by User over the 24 -hour period from the storage facility located on the Property. 13. USER EMERGENCY SITUATIONS. In the event of an emergency, as defined below, User shall notify any of those District representatives set forth herein and request that pumping of reclaimed water temporarily cease. Such notice shall be in writing where circumstances permit and, in the event of an immediate emergency, such notice may be by telephone with subsequent written confirmation. It is understood by both parties that District anticipates that it can assist User with the storage and non - delivery of reclaimed water for a period not to exceed three (3) days in such an emergency situation. Such storage of reclaimed water, however, shall be subject to the rules, regulations and directives of the Department of Environmental Protection. Emergencies shall include but not limited to: (a) Weather conditions such as hurricanes, floods or unseasonably excessive rainfall that makes it impossible for User to accept reclaimed water. (b) Short term equipment or material failure, making it impossible for User to store or distribute the reclaimed water. (c) An act of God that makes it impossible for User to accept, store or distribute the reclaimed water. 14. NOTIFICATION OF DISTRICT. Those representatives of District who shall be notified in the event of an emergency are: (a) Collier County Public Utilities Administrator 3301 E. Tamiami Trail (239) 732 -2540 Naples, Florida 34112 (b) Collier County Wastewater Director 10500 Goodlette Rd. (239) 594 -1731 Naples, Florida 34109 (e) Collier County Irrigation Quality Manager 10500 Goodlette Rd. (239) 593 -0336 Naples, Florida 34109 4 Packet Page -1604- 7/26/2011 Item 16.C.5. .10 k I R 15. DISTRICT NOT LIABLE FOR FAILURE TO DELIVER RECLAIMED WATER. User shall not hold the District liable for failure to deliver reclaimed water if a reasonable situation preventing such delivery exists. Such situations shall include, but not be limited to: (a) A lack of reclaimed water due to a loss or lack of flow to the treatment plant or due to process failure. (b) Contamination in the reclaimed water making it unusable for approved uses. (c) Equipment or material failure in the reclaimed water delivery system, including storage and pumping. (d) An act of God that makes delivery of reclaimed water by the District not reasonably feasible or impossible. (e) Other plant upsets caused by mechanical or a biological process that would prevent delivery of reclaimed water to the system. 16. NOTIFICATION OF USER AND PROVIDER The representative of User and Provider who shall be notified in the event of an emergency or District's inability to deliver reclaimed water is: (a.) User (b.) Provider: Collier County Robert R. Bittner Water Sewer District The Club Pelican Bay Attn: Wastewater Ops Manager 707 Gulf Park Drive 10500 Goodlette Frank Rd. Naples, FL 34108 Naples, FL 34109 If and when emergency situations occur, the District shall try to notify User by telephone and try to promptly follow up with a letter stating the nature of the emergency and the anticipated duration. 17. WRITTEN NOTICE OF ADDRESS AND TELEPHONE CHANGES REQUIRED. The District and the User may change the above mailing address and/or phone numbers at any time upon giving the other party written notification, return receipt requested, by U.S. Mail 18. EXCUSE FOR PERFORMANCE BY GOVERNMENTAL ACTS. If for any reason during the term of this agreement, local, state or federal governments or agencies shall fail to issue necessary permits, grants necessary approvals, or shall require any change in the operation of the treatment, transmission and distribution systems or the application and use of reclaimed water. Then to the extent that such requirements shall affect the ability of any party to perform any of the terms of this Agreement, the affected parry shall be excused from the performance thereof and the parties hereto in conformity with such permits, approvals, or requirements shall negotiate a new agreement, if possible. 5 Packet Page -1605- 7/26/2011 Item 16.C.5. U� f J. VX However, nothing shall require User or District to accept any new agreement if it substantially adds to its burdens and obligations hereunder. 19. USER'S RIGHT TO TERMINATION; AGREEMENT RUNS WITH LAND. The User shall have the right to terminate this agreement if the District continually fails to deliver reclaimed water subject to the exemptions specified in paragraph 15 herein - above). The User shall have the right to sell, transfer or encumber the land areas irrigated with the reclaimed water as described in Exhibit A, except that written notice of any proposed sale or transfer must be given to the District, as provided for herein, at least thirty (30) days prior to sale or transfer. So long as use of the property shall substantially continue to be for the purposes intended by this Agreement, any subsequent party in interest shall be obligated to pay in accordance with the take or pay provision, as well as receive and use the specified minimum quantity under the same terms and conditions of this Agreement unless modified by mutual consent of the District and the buyer, of transferee, or successor in interest to the User. 20. DISTRICT'S RIGHT TO TERMINATION. The District shall have the right to terminate this Agreement if the User fails to accept reclaimed water under the conditions described herein, or if performance is prevented by third party litigation, of if the User is or reasonably appears to be irresponsibly or illegally disposing of or using the reclaimed water, or if any other event beyond the control of the District prevents performance, or if the User fails to pay delinquent fees, rates or charges for the services and facilities provided for under this Agreement. If the Property is annexed into a municipal corporation or is incorporated as a municipal corporation, District shall have the unilateral right to substitute potable water in lieu of reclaimed water (if such potable water is then available or can be made available to serve the Property), and if such potable water is not then available or cannot be made available, the District may unilaterally terminate this Agreement upon giving USER at least three hundred and sixty -five (365) days advanced written notice of such intent to terminate. 21. TIME OF TERMINATION. Whenever practical, substitution of potable water or termination on the part of either party (including based upon annexation or incorporation pursuant to the last sentence in paragraph 21, above) shall not occur before one hundred eighty (180) days after the terminating party has notified the other party in writing, except in the instance where User is, or reasonably appears to be, irresponsibly or illegally disposing of or using the reclaimed water. 22. ACCESS. The District shall have the right, but not the duty, to enter upon the Property of the User to review and inspect at reasonable times the practices of user with respect to conditions agreed herein and/or to maintain, repair, replace, relocate or otherwise deal with the system. Such entry shall also be for the purpose of review of the operation of the reclaimed water irrigation system, for inspection of distribution mains and appurtenances, and for sampling at any F Packet Page -1606- 7/26/2011 Item 16.C.5. A (.) t- 1 t( monitoring well located on the property of the User. User may have a representative accompany the District's personnel. 23. INDEMNIFICATION. User acknowledges that the reclaimed water, due to its chemical composition, may not be compatible for irrigation on certain susceptible vegetation. User agrees that District shall not be held liable for damages that may occur to vegetation or for any other damages that may occur due to the use or acceptance of the reclaimed water. The User shall hold harmless and defend the District and its agents and employees from all suits and actions, including attorney fees and all costs of administrative proceedings, and/or litigation and/or judgments, including any appeals, of any name and description arising out of or incidental to this Agreement. 24. DISCLAIMER OF THIRD PARTY BENEFICIARIES. This agreement is solely for the benefit of the formal parties hereto, and their successors in interest, and no right or cause of action shall accrue upon or by reason hereof, to or for the benefit of any third party not a party hereto. 25. SEVERABILITY. If any court finds any part of this Agreement invalid or unenforceable, such invalidity or unenforceability shall not affect the other parts of this Agreement if the rights and obligations of the parties contained therein are not materially prejudiced and if the intentions of the parties can continue to be effected. To that end, this Agreement is declared severable. 26. LAND USE APPROVALS. This Agreement shall not be construed as a basis for either granting or assuring or indicating, or denying, refusing to grant or preventing any future grant of land use zoning approvals, permissions, variances, special exceptions or any other rights with respect to the real property in the approved uses area. 27. APPLICABLE LAW. This agreement and the provisions contained herein shall be construed, controlled and interpreted according to the laws of the State of Florida, all then applicable provisions of the Florida Administrative Code, and the then current Collier County Reclaimed Water Ordinance or its successors in function. 28. RECORDATION. This Agreement shall be recorded in the Public Records of Collier County, Florida. 29. ASSIGNMENT. Assignment or transfer of the User's rights or obligations under this Agreement is prohibited without prior written consent of the District. Any attempt by User to assign or otherwise transfer this Agreement from off of the Property shall be null and void (void ab initio). 30. BINDING EFFECT. This Agreement shall be binding upon the parties, their successors and assigns. Packet Page -1607- 7/26/2011 Item 16.C.5. .�I. () f 1 H 31. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties with respect to the subject matter referenced herein. Any amendment hereto shall be in writing duly executed by the parties hereto, or their successors in interest to the Property. Each amending Agreement shall clearly and specifically refer to this Agreement by title and date. E.g., "First Amendment to that Agreement for Delivery and Reuse of Reclaimed Water, which commenced on the day of , between the Collier County Water -Sewer District and The Club Pelican Bay, Inc. 32. SPECIAL PROVISIONS: None s Packet Page -1608- 7/26/2011 Item 16.C.5. 16F 1 R IN WITNESS WHEREOF, the parties have subscribed their hands and seals for the day and year first above mentioned. USER: The Club Pelican Bay, Inc. (A Florida Corporation) Y: Signature` Typed/prinl6d Name of individual signing Ac . Title of individual signing for User iYV _/, TWO WITNESSE QUIRED 1 Signature of First Witness Printed/Typed Name of First Witness Signature of gecDA&Witness NALO,r -,' Lt ()t;1e4r. Printed/Typed Name of Second Witness 9 Packet Page -1609- 7/26/2011 Item 16.C.5. STATE OF FLORIDA COUNTY OF COLLIER I HEREBY CERTIFY that on this day, before me, an officer duty authorized in the State and County aforesaid to take acknowledgments, personally appeared -&C r b se ,) well known to me to be the i as tog' of - r !. , s �� (� �3s.� %3� yT� c n/ v, , and who in my presence signed the foregoing Agreement. WITNESS my hand and official seal in the County and State aforesaid this �vday of 2006. (I �Otwial seal) KEEN ME IER KAYLAR MY COMMISSION 0 DD500314 EXPIRES: FA.4.3010 w71A lm FlM Nd"srrwaeam DATED: ATTEST: DWIGHT E. BROCK, CLERK By :At- y 114 I'll styaatwa 0014 Approved as to form and legal sufficiency: �7 A sistan Co Attorney C- N;Zrn�sPhC sio xpires: A/ 5l /.toto BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, AS EX- OFFICIO THE GOVERN}'NG BOARD OF THE COLLIER COUNTY W SEWER DISTRICT 2 B. r miK .rs CHAIRMAN LO Packet Page -1610- 7/26/2011 Item 16.C.5. IeF 1 R IU O Ip Io 7/26/2011 Item 16-C.5. -1 Tlt! t Yiw oil z [L A Zz A� Al 17 lz 7/26/2011 Item 16-C.5. -1 Tlt! t Yiw oil z [L A 7/26/2011 Item 16-C.5. -1 Tlt! t oil z [L 7/26/2011 Item 16-C.5. -1 Packet Page -1612- EXHtBT A Page 2 of 3 oil z [L Zz Packet Page -1612- EXHtBT A Page 2 of 3 O s.t i�C W < _J fA��,< M� \� iii S�_a W 03I5$k4j gin - -- 7/26/2011 Item 16.C.5. i A 0 c` tS _ 1. O s.t i�C W < _J fA��,< M� \� iii S�_a W 03I5$k4j gin - -- 7/26/2011 Item 16.C.5. EXHLBT A Page 3 of 3 Packet Page -1613- i c` tS _ 1. EXHLBT A Page 3 of 3 Packet Page -1613- i EXHLBT A Page 3 of 3 Packet Page -1613- 5 t° f j" •e, cwt' b' A• yt r $in. _ �( ' �r�r E. tY `i .•:+� t�7re�"}"'_� F '- '�aY��'"+�c'yp` ii �� � �j: is � 'X� '� � •. iy L eT4 v, ` 0.�S� Y„ a I i sT t�QAi��y�yy� w�is •.^ Err SV Ix 7/26/2011 Item 16.C.5. RENEWAL AND AMENDMENT OF THE AGREEMENT FOR DELIVERY AND REUSE OF RECLAIMED WATER This Renewal and Amendment of original Agreement for Delivery and Reuse of Reclaimed Water is made and entered into on this day of , 2011, by and between The Club Pelican Bay, Inc., ( "User ") and the Board of County Commissioners of Collier County, Florida as the Ex- Officio Governing Board of the Collier County Water -Sewer District ( "District "), collectively stated as the "Parties". RECITALS: WHEREAS, District and User are parties to that certain Agreement for Delivery and Reuse of Reclaimed Water dated August 17, 2006 (the "Agreement'); and WHEREAS, the Parties desire to renew and amend the Agreement for a five year term with automatic renewals thereafter as provided for in the Agreement; and WHEREAS, the Parties believe the renewal and amendment herein are in the best interests of the District and User. NOW, THEREFORE, in consideration of the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. The foregoing Recitals are true and correct and are incorporated by the reference herein. 2. In keeping with Section 2 of the Agreement, the Parties hereby exercise their right to renew the Agreement. Accordingly, the Agreement is hereby renewed for a period of five (5) years and shall be renewed for only successive five (5) year periods, unless amended or terminated as provided by the Agreement. This five (5) year renewal term will expire August 17, 2016. 3. Section 14 NOTIFICATION OF DISTRICT of the original Agreement is deleted and replaced with the following: All notices required or permitted to be given hereunder shall be in writing and shall be deemed given if delivered in person, by telecopy, by an overnight delivery service, or by certified or registered mail to the other party at the following addresses: (a) Collier County Public Utilities Administrator 3339 Tamiami Trail E., Suite 303 Naples, Florida 34112 239 -252- 252 -2540 (b) Collier County Wastewater Director 4370 Mercantile Avenue Naples, Florida 34104 239- 252 -6337 (c) Collier County Reuse Manager 4370 Mercantile Avenue Naples, Florida 34104 Page : of 2 Packet Page -1616- 7/26/2011 Item 16.C.5. 239- 252 -6284 4. All terns and conditions of the Agreement remain in full force and effect. This Renewal and Amendment merges any prior written and oral understanding and agreements, if any, between the Parties with respect to the matters set forth herein. 5. This Renewal and Amendment shall be recorded by the County, at the expense of the County, in the Official Records of Collier County, Florida, within sixty (60) days of approval by the Collier County Board County Commissioners. IN WITNESS WHEREOF, the User and the District have each, respectively, by an authorized person or agent, hereunder set their hands and seals on the date indicated below. Witnesses: Signature USER: The Club Pelican Bay, Inc. By: Signature via l I (G+1 Q Yt ��� 1 ✓11 �nbe.� Print Name and TitleLl DISTRICT: ATTEST: BOARD OF COUNTY COMMISSIONERS, DWIGHT E. BROCK, CLERK COLLIER COUNTY, FLORIDA, AS THE GOVERNING BODY OF COLLIER COUNTY AND BY: EX- OFFICIO THE GOVERNING BOARD OF THE DEPUTY CLERK COLLIER COUNTY WATER -SEWER DISTRICT Approval for form and legal Sufficiency: Jennifer B. White Assistant County Attorney By: FRED W. COYLE, CHAIRMAN Page 2 of 2 Packet Page- 1616 -