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Agenda 03/09/2010 Item #16B 4 Agenda Item No. 1684 March 9, 2010 Page 1 of 16 EXECUTIVE SUMMARY ."-, Update regarding the Contractor's implementation of method and means to achieve cost savings with regard to the acquisition of fill for the Oil Well Road widening project and its relationship to the Supplemental Agreement for the Sale of Fill with Ave Maria Development, LLLP. Project #60044. OBJECTIVE: To update the Board of County Commissioners about the Contractor's implementation of alternative method and means to achieve cost savings with regard to the acquisition of fill for the Oil Well Road widening project and its relationship to the Supplemental Agreement for the Sale ofFill with Ave Maria Development, LLLP, CONSIDERATIONS: On April 26, 2005, the Board of County Commissioners entered into a Developer Contribution A/,'l'eement (DCA) with Ave Maria Development, LLLP, As part of this Agreement the County agreed to provide six lane improvements to Oil Well Road. To accelerate these improvements the Developer, Barron Collier Companies, agreed to donate certain right-ot~way, fund the cost of designing and pennitting the section of Oil Well Road from Immokalee Road to Camp Keais Road in exchange for impact fee credits, and to provide fill to the County at its cost. - On October 13, 2009, the Board approved the Supplemental Agreement for the Sale of Fill with Ave Maria, which set the cost of fill at $2.45 per cubic yard. The option for the use of Ave Maria's fill for $2.45 was included in the bid specifications for the Oil Well Road project. Mitchell & Stark Construction Company was awarded the contract for the project based on, among other things, low bid. Although Mitchell & Stark had the option to use the Ave Maria fill at $2.45 per cubic yard, they chose to pursue an alternate source of fill at a lower cost. Ave Maria and Mitchell & Stark have negotiated a separate Agreement for fill which is better suited to the Contractor. Ave Maria and the County agree that the Contractor's election to pursue an alternative means of acquiring fill for the Oil Well Road project, does not violate either the DCA or the Supplemental Fill Agreement. FISCAL IMPACT: There is no fiscal impact associated with this item LEGAL CONSIDERATIONS: This item has been reviewed and approved by the County Attorney's Office and is legally sufficient for Board action-SRT. . GROWTH MANAGEMENT IMPACT: There is no Growth Management Plan impact associated with this item RECOMMENDATION: That the Board accept the update regarding the Contractor's implementation of alternative method and means to achieve cost savings with regard to the acquisition of till for the Oil Well Road widening project and its relationship to the Supplemental Agreement for the Sale ofFill with Ave Maria Development, LLLP. - Prepared by: Kevin H. Dugan, Project Manager, TECM Attachments: (1) Fill A/,'l'eement; (2) Ave Maria Letter; (3) TECM Letter ""'--'._-.~_._-- -,.. u.-..,o ^,_,_... ,''''" ~."."...-.....~". " Agenda Item No. 1684 March 9, 2010 Page 2 of 16 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS - Item Number: Item Summary: 1684 Update regarding the Contractors implementation of method and means to achieve cost savings with regard to the acquisition of fill for the Oil Well Road widening project and its relationship to the Supplemental Agreement for the Sale of Fill with Ave Maria Development, LLLP. Project #60044. 3/9/20109:00:00 AM Meeting Date: Prepared By Kevin H. Dugan Project Manager Date Transportation Engineering & 2/18/20103:31:52 PM Transportation Division Construction Management Approved By Scott R. Teach Deputy County Attorney Date County Attorney County Attorney 2/18/20103:44 PM A pproved By Lisa Taylor Management/Budget Analyst Date Transportation Division Transportation Administration 2/22/20108:22 AM Approved By Najeh Ahmad Director ~ Transportation Engineering Date Transportation Division Transportation Engineering & 2/22/20109:14 AM Construction Management Approved By Steve Carnell Director - Purchasing/General Services Date Administrative Services Division Purchasing & General Services 2/22/2010 10:49 AM Approved By Rhonda Cummings Contracts Specialist Date Administrative Services Division Purchasing & General Services 2/22/2010 11:j;() AM Approved By Norm E. Feder, AICP Administrator - Transportation Date Transportation Division Transportation Administration 2/23/20103:58 PM Approved By Pat Lehnhard Executive Secretary Date - Transportation Division Transportation Administration 2/23/20104:01 PM Approved By .c.:l_.f'I'.\.\ ___..J_'T'__.L\~H____-,-\1l;^ ll.,r____L C\ "'^11\\1/. r'I"-""'TC'I~ll..T'T' .\r'lT':'ll..T",",.\\1rn 'T"n All..TC'lnA '''''''/''"If\1C\ .-~_._-- ~ & ,. ~ ._..~, ._., ___0'" __<'w,_w.'- "... ,__.,,~,,_,_,_~<._ m,_,_' .. .' M"_~ Agenda Item No. 1684 March 9, 2010 Page 3 of 16 OMS Coordinator Date County Manager's Office Office of Management & Budget 2/25/20109:32 AM Approved By Jeff Klatzkow County Attorney Date 2/26/201012:58 PM Approved By Mark Isackson Management/Budget Analyst, Senior Date Office of Management & Budget Office of Management & Budget 2/27/201012:00 PM .c:l_./lf"..\ A _~._..l_'T'__-,-\I'__.~_.....\lC^ 11.1"____1- () """1""r. r'\r'\)"TC1T'1o.T'T' A f""T:"lro.TT"lo A.\ 1 f.n 'T"Tl A "ll.TClTlA "'l''"It'''^'(\ Agenda Item No. 1684 March 9, 2010 Page 4 of 16 CHEFFY PASSIDOMO ATTORNEYS AT LAW _. 'DWARD K. CHEFFY BOARD CEIlTJFIED CIVIL TRIAL LAWYER BOARD CERTIfiED BUSINESS LITIGATION LAWYER JOHN M. PASSIDOMO BOARD CERTIFIED REAL ESTATE LAWYER JOHN D. KEHOE BOARD CERTIFIED CIVIL TRIAL LAWYER LOUIS D. D'AGOSTINO BOARD CERTIPIED APPELLATE PRACTICE LAWYER JEFF M. NOVAIT DAVID A. ZULIAN WUlSW. CHEFFY BOARD CERTIFIED REAL ESTATE LAWYER 821 Fifth Avenue South Naples, Florida 34 I 02 Tdephone: (239)261.9300 www.napleslaw.com USABARNEll'VANDlEN BOARD CERTIFIED REAL ESTATE LAWYER ClAY C. BROOKER ANDREW H. REISS BOARD CERTrFIED BUSINESS LlTIGATION LAWYER WIlliAM J. DEMPSEY BOARD CERTIFtED REAL ESTATE LAWYER MICHAEL w.: PEl 1'1]' CHRISTOPHER J. TIiORNTON JOHN C. CWUGH BRIAN D. ORSBORN OF COUNSEL: GEORGE L. VARNADOE February 15, 2010 VIA EMAll: JavAhmad@collier~ov.net Jay Ahmad, P,E, Director, Collier County Transportation Engineering & Construction Management Collier County Transportation Department 2885 S, Horseshoe Drive Naples, Florida 34104 - Re: Developer Contribution Agreement for Ave Maria ("DCA") and Supplemental Fill Agreement ("Fill Agreement") between Ave Maria Development, lllP ("Ave Maria") and Collier County Dear Jay: Thanks again to you, Norm Feder, Jeff Klatzkow, and Scott Teach for taking the time to meet with me and David Genson regarding the referenced DCA and Fill Agreement. As we discussed, the County's roadway contractor for the Oil Well Road expansion - Mitchell & Stark Construction Company, Inc. ("Mitchell") - has proposed an arrangement for the purchase of fill material that is slightiy different from the terms of the DCA and Fill Agreement. The purpose of this letter is to explain Mitchell's proposai and request the County's confirmation that the proposal does not violate the terms of the OCA or Fill Agreement. As you are aware, the DCA requires Ave Maria to provide fill material for the Oil Well Road expansion "at cost," and provides that the "cost shall include the costs of . . . mining, stockpiling and loading the fill." The Fill Agreement, in turn, provides that Ave Maria will sell fill material to the County's selected contractor (I.e., Mitchell) for a negotiated price of $2.45 per cubic yard.1 Included in that price are Ave Maria's cost of loading the fill material onto Mitchell's trucks at the mine. In sum, the DCA and Fill Agreement reflect that Ave Maria will sell fill material to Mitchell at $2.45 per cubic yard, which price ,.--, 1 Ave Marla initlaliy proposed that the County (or its contractor) pay actual "cost" for fili material based on a fixed unit price with periodic true-up adjustments to account for any surplus or shortfall. The County preferred that the "cost" be fixed up-front based on an liquidated unit price, and the parties settled on $2.45 per cubic yard as an appropriate price to account for Ave Maria's: 1. Hard and soft costs for obtaining conditional use approval and permits necessary for the mining operation; and 2, Costs of having its mine operator - Earth Tech Enterprises, Inc., mine, stockpile, and load the fill. ~"--"'-- -~"-'--'-" .A._.___.. ,... ._._~...~_. ,____.. .-""- '_._'~--- Jay Ahmad, P.E. February 15, 2010 Page 2 Agenda Item No 1684 March 9, 2010 Page 5 of 16 was intended to include Ave Maria's permitting/conditional use approval costs and the costs of mining, stockpiling, and loading the fill onto Mitchell's haul trucks. Mitchell's alternative proposal is reflected in the attached Fill Purchase Agreement (which was prepared by Mitchell) and General Conditions to Fill Purchase Agreement (which we prepared to supplement the Fill Purchase Agreement), The proposal requires Mitchell to pay Ave Maria .66 cents per cubic yard in exchange for Ave Maria granting Mitchell "access" to the mine. This is the same amount that Ave Maria would have otherwise received from the mine operator. It reflects a proportionate share of Ave Maria's hard and soft costs for permitting and securing conditional use approval for the mine and certain hard costs associated with the mine site-work and infrastructure, but does not include the costs of mining, stockpiling, and loading the fill onto Mitchell's haul trucks. Mitchell wouid instead contract with the mine operator - Earth Tech Enterprises, Inc, - to mine and load the fill.2 Ave Maria has not been privy to the negotiations between Mitchell and Earth Tech, would not be a party to the corresponding agreement, and would receive no payment from either Earth Tech or Mitchell in connection with the mining/loading services.' Ave Maria presumes that Mitchell's proposed arrangement would result in an aggregate per cubic yard price of less than the $2.45 price reflected in the Fill Agreement, which creates a technical inconsistency between the proposal and the Fill Agreement terms. Mitchell's proposal is also inconsistent with the DCA and the Fill Agreement insofar as Ave Maria would not provide any mining/stockpiling/loading services (or receive any corresponding "cost" reimbursement payments for those services). While the net effect of Mitchell's proposal is a reduction in the price of the fill material, Ave Maria is unwilling to agree to the alternative without the County's approval. We understand based on our earlier meeting that you and Mr. Feder would not consider Ave Maria to have violated the DCA or Fill Agreement, either substantively or in spirit, if it accepts Mitchell's proposal, and that you consider the alternative to simply be a change in the "ways and means" methodology under the County's contract with Mitchell. We look forward to your response confirming our understanding. Thank you Jay, and please feel free contact either David Genson or me with any questions. J William J. Dempsey, For the Firm Enclosures cc: David Genson, P.E. Jeff Klatzkow, Esq. (Via Email: JeffKlatzkow@colliergov.net) Norman Feder, AICP (Via Email: NormFeder@colliergov.net) cp 8942 doc 497 2 Ave Maria owns the earth-mine and surrounding lands, and has entered into a contract for Earth Tech to operate the mine in exchange for royalty payments. , We understand that Mitchell may have been able to negotiate a lower unit price with Earth Tech: 1. By agreeing to schedule haul trips so that material can be mined and loaded directly onto Mitchell's trucks without stockpiling, thereby avoiding the cost of moving fill from the mine to the stockpile and from the stockpile to the haul trucks; and 2. Because Earth Tech and Mitchell may collaborate on other significant material purchases (I.e. base rock). which creates economies of scale that allow Earth Tech to provide mining services at a lower unit price with respect to the Oil Well Road project. .. '~" x"-'" ----_..- Agenda Item No. 1684 March 9, 2010 Page 6 of 16 Mitchell & Stark Construction Company, Inc. 6001 Shirley Street, Naples, Florida 34109 (239) 597-2165 (239) 566-7865 fax FILL PURCHASE AGREEMENT Seller; Ave Maria Development, LLLP 2600 Golden gate Parkway Naples, FL 34105 Seller does hereby agree to accept the amount of$0.66 per CY (Sixty Six Cents per cubic yard) of "Pill" removed as full and final compensation for making said "Fill" material available from Seller's Ave Maria South Grove Lake. Quantity of acceptable Fill to be approximately 500,000.00 cubic yards. In consideration of this Agreement, Mitchell & Stark Construction agrees to enter into separate Agreement with AMD's agent, Earth Tech Enterprises, Inc. for the purpose of physically removing said Pill. Ave Maria Development, LLLP Mitchell & Stark Construction By Date By Date , -_'_~__ -"r .. __._w.___. '-'.,.--",.,"__'''_'",_,"__'' _._- ----'---. -~.....--- Agenda Item No. 1684 March 9, 2010 Page 7 of 16 GENERAL CONDITIONS TO Fill PURCHASE AGREEMENT The following General Conditions are incorporated into that certain Fill Purchase Agreement of even date herewith ("Agreement") by and between Ave Maria Development, LLLP ("Ave Maria"), and Mitchell & Stark Construction Company, Inc, ("Mitchell"): 1. Purpose of Al:reement - The limited purpose of this Agreement is to memorialize Ave Maria's consent to the sale of approximately six hundred thousand (600,000) cubic yards of fill material (the "Fill") to Mitchell for use in the Project (hereinafter defined) in exchange for Mitchell's payment to Ave Maria of sixty-six cents ($ 0.66) per cubic yard of Fill (the "Cost Reimbursement"). Ave Maria represents to Mitchell and Mitchell agrees and acknowledges (based on Ave Maria's representation) that the Cost Reimbursement reflects only Ave Maria's hard and soft costs incurred in permitting and improving Ave Maria's South Grove lake mine on Oil Well Road ("South Grove") as the source of the Fill. The Cost Reimbursement does not reflect the entire price to be paid by Mitchell for the Fill, and Mitchell acknowiedges that it must separately contract with the South Grove mine operator, Earth Tech Enterprises, Inc. ("Earth Tech") for the balance of the Fill purchase price. 2. Use of Fill Material- Mitchell agrees and acknowledges that the Agreement (and the Fill) relates only to the expansion of the two (2) segments of the Oil Well Road right-of-way lying between Immokalee Road and Everglades Boulevard, and Oil Well Grade Road and Ave Maria Boulevard (collectively the "Project"). Ave Maria has no obligation to sell or cause the sale of fill material to Mitchell except in connection with the Project, and subject to the terms and limitations of the Agreement and these General Conditions. 3. Source and Quality of Fill Material - The source of the Fill shall be South Grove. Ave Maria is responsible under the County Agreement (hereinafter defined) for providing fill that conforms to the requirements listed in Section 120-7 of the Florida Department of Transportation Standard Specifications for Road and Bridge Construction 2007 (or the corresponding Section of the most recent edition thereof), and Mitchell shall be solely responsible for confirming that the Fill so conforms to such requirements and is otherwise suitable for use in connection with the Project. 4. Payment - Ave Maria shall invoice Mitchell, and Mitchell shall pay Ave Maria the Cost Reimbursement, on a monthly basis. The Cost Reimbursement for each period shall be calculated based on the volume of Fill removed from South Grove by or at the direction of Mitchell during the prior month, as determined by Earth Tech (or by an agent appointed by Ave Maria for purposes of tracking the amount of Fill so removed from South Grove). In the event that Mitchell does not agree with the Earth Tech's volume calculations for any particular invoice, Mitchell shall deliver written notice of objection to Ave' Maria within five (5) business days (which objection shall include Mitchell's calculation of the Fill removed) and the parties shall thereafter cooperate in good faith to resolve the discrepancy between Earth Tech's calculations and Mitchell's. Ave Maria shall have the option of suspending deliveries of Fill to Mitchell until such time as the discrepancy is resolved. Mitchell shall be deemed to have waived any objection to the Fill removal calculations for each day during the term of this Agreement unless Mitchell so objects in writing to Ave Maria within said 5-day period. Mitchell's notice of objection shall be hand-delivered to: Attn: David Genson, 2600 Goiden Gate Parkway, Naples, Florida 34105, or transmitted to the attention of David Genson via facsimile with automated and printed confirmation of receipt at 239-262-1797. Mitchell's failure to pay any invoice within thirty (30) days after Ave Maria's delivery of same shall constitute a default under this Agreement and shall entitle Ave Maria to exercise any remedy available at law or in equity, including without limitation terminating the Agreement without further obligation to Mitchell. Agenda Item No. 16B4 March 9, 2010 Page 8 of 16 - 5. Insurance - Mitchell, and any subcontractor(s) who transports Fill from South Grove by or at the direction of Mitchell, shall carry property damage and public liability insurance coverage in the following amounts with Ave Maria named as an additional insured party (the "Required Insurance"): Auto/General liability $2,000,000 $1,000,000 $1,000,000 $500,000 Combined Single Limit Any One Occurrence Personal Injury Property Damage The Required Insurance policy binders shall reflect that Ave Marla shall be indemnified on a primary and non-contributory basis utilizing an 150 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. Mitchell shall provide copies of the corresponding policies for the Required Insurance to Ave Maria within ten (10) days following Ave Maria's written request for same -", 6. Indemnity - To the maximum extent permitted by Florida law, Mitchell shall indemnify and hold harmless Ave Maria and its officers and employees from any and all liabilities, damages, losses and costs, including, but not limited to, reasonable attorneys' fees and paralegals' fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of the Mitchell or anyone employed or utilized by the Mitchell in the performance of this Agreement, including without limitation liabilities, damages, losses and costs associated with the transportation of the Fill from South Grove or the delivery of unsuitable Fill to the Project. This indemnification obligation shall not be construed to negate, abridge or reduce any other rights or remedies which otherwise may be available to an indemnified parties or persons described in this paragraph. This section does not pertain to any incident arising from the sole negligence of Ave Maria. 7. Default; Remedies; Waiver - In the event Mitchell fails to meet any of its obligations under this Agreement (other than its obligation to pay the Cost Reimbursement, which is governed by Paragraph 4, above) and fails to cure such default within thirty (30) days fOllowing notice of default from Ave Maria, then Ave Maria shall be entitled to exercise any remedy available at law or in equity, including without limitation terminating the Agreement without further obligation to Mitchell. Ave Maria's failure to demand strict adherence to the terms of this Agreement by Mitchell in each instance shall not be deemed a waiver of any right or remedy by Ave Maria hereunder, unless such waiver is reflected in a written memorandum executed by an authorized signatory of Ave Maria. 8. Attorney's Fees - The prevailing party in any action to enforce or interpret the terms of this Agreement shall be entitled to recover its attorneys' fees and courts costs from the non-prevailing party, including fees and costs incurred on appeal. Venue for any such action shall lie with the courts in and for Collier County, Florida. 9. Modification - This Agreement may only be modified or amended only by written agreement signed by the party to be bound by such amendment or modification. 10. No Joint Venture - Nothing contained herein shall be deemed or construed to create between or among any of the parties any joint venture or partnership nor otherwise grant to one another the - right, authority or power to bind any other party hereto to any agreement whatsoever. Unless expressly stated herein to the contrary, nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than the parties and their respective legal representatives, successors and permitted assigns. Nothing in this -'_....~--" '.- -.-. .--.-.....-...---". .. . "_.'-~-,,--. '. ,-~-~.--."..- , Agenda Item No. 1684 March 9, 2010 Page 9 of 16 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. 11. Conflict With DCA!County Agreement; Termination - This Agreement has been entered based on a presumption by both Ave Maria and Mitcheli that its terms are consistent with the terms of the Developer Contribution Agreement recorded in Official Records Book 3802, Page 2SS7, Public Records of Collier County, Florida ("DCA"), and that certain Supplemental Agreement for Sale of Fill by and between Ave Maria and Collier County dated October , 2009 (the "County Agreement"). In the event of a claim by Collier County that this Agreement contravenes the terms of the DCA or County Agreement, or that the Agreement is otherwise contrary to Ave Maria's obligations under the DCA or County Agreement, then Ave Maria may terminate this Agreement without penalty or further obligation to Mitchell. IN WITNESS WHEREOF, these General Conditions and the Agreement have been signed by the parties this day of , 2010. "AVE MARIA": "MITCHELL": AVE MARIA DEVELOPMENT, LLLP, a Florida limited liability limited partnership Mitchell & Stark Construction Company, Inc., a Florida corporation By: By: Barron Collier Corporation, a Florida corporation, its Managing General Partner Fred Harrison, its President By: Douglas E. 8aird, as Vice President of Barron Coliier Corporation, as Managing General Partner of Ave Maria Development, LLLP Cp 8942 doc 498 (General Conditions Rev. 2(14) Agenda Item No. 1684 March 9, 2010 Page 10 of 16 Co leT ( :Ounty oi>- " ~ Transportation Services Division "- February 16, 2010 Mr. William J. Dempsey, Esq. Chefty Passidomo, Attorneys at Law 821 Fifth Avenue South Naples, FL 34102 Re: Developer Contribution Agreement for Ave Maria ("DCA") and Supplemental Fill Agreement ("Fill Agreement") between Ave Maria Development, LLP ("Ave Maria") And Collier County Dear Mr. Dempsey: The County agrees that according to the DCA, Ave Maria is required to provide fill for the Oil Well Road expansion a "at cost", and provides that the "cost shall Include the costs oLmining, stockpiling and loading the fill." The Fill Agreement provides that Ave Maria will sell fill material to the County's selected contractor for the negotiated price of $2.4S per cubic yard. This price refiects the: 1. Hard and soft costs for obtaining conditional use approval and permits necessary for the mining operation; 2. Costs of having its mine operator mine, stockpile, and load the fill; and 3. The cost of future unforeseen raises in the cost of fill. ..-, The option for the use of Ave Maria's fill for $2.45 was included in the bid specifications for the Oil Well Road project. Mitchell & Stark Construction Company was awarded the contract for the project based on, among other things, low bid. Although Mitchell & Stark had the option to use the Ave Maria fill at $2.45 per cubic yard, they chose to pursue an alternate source of fill. The County cannot comment on the "means and methods" of Its contractor. The County agrees that Ave Maria has not violated the DCA or Fill Agreement, either substantively or in spirit, if it accepts Mitchell & Starks proposal for a modified "means and methods" that may result in an adjustment to the cost per cubic yard of fill. According to Paragraph 5 of the Supplemental Agreement there is mutual consent to the proposed arrangement. If you have any questions, or require additional information, please do not hesitate to call me at 252-5826. Sincerely, Jay Ahmad, P. Director, TECM .::;...-"" Cc: Norman Feder, Administrator, Transportation Division Jeff Klatzkow, County Attorney Scott Teach, Deputy County Attorney ..,-. T~_I:>.isal' 2885 SOulJ1 Horseshoe O"'e' Naples, FIOfi(ja 34104' 239-252-8192' FAX 239"252-272ii ----,., -".....~._- . --,........ .__._-..,...._.._.,..._.._..~_..~ --.- -- . . Agenda Item No. 1684 March 9, 2010 Page 11 of 16 SUPPLEMENTAL AGREEMENT FOR SALE OF FILL This SUPPLEMENTAL Agreement ("Agreement") is entered into this day of October, 2009, by and between Ave Maria Development, LLLP, a Florida limited liability limited partnership ("Ave Maria") and Collier County, a political subdivision of the State of Florida ("Collier County"). This Agreement is a Supplement to a Developer Contribution Agreement between the parties dated April 26, 2005, and recorded in Official Records Book 3802, Page 2557, of the Collier County. Florida, Public Records (the "DCA"). RECIT ALS WHEREAS, Paragraph 7 of the DCA requires Ave Maria to provide suflicient fill material in connection with the expansion of certain County right-of-way in Eastern Collier County; and WHEREAS, Collier County is prepared to proceed with funding and constructing the expansion of two (2) segments of the Oil Well Road right-of-way, namely those segments lying between: 1. Immokalee Road and Everglades Boulevard; and 2. Oil Well Grade Road and Ave Maria Boulevard (the "Project"); and WHEREAS, Ave Maria and Collier County wish to enter into this Agreement for purposes of memorializing their respective obligations regarding the provision offill material for the Project. NOW THEREFORE, in consideration of the j()llowing agreements. the mutual exchange ofTen Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which the parties mutually acknowledge. Ave Maria and Collier County hereby agree that the foregoing recitals are true, correct, and incorporated into this Agreement, and further agree as follows: I. Sale of Fill for the Project. Ave Maria agrees to provide sutticient fill material for the Project at a purchase price of $2.45 per cubic yard. which the parties agree reflects Ave Maria's actual "Cost." The agreed upon purchase price offill and means of access shall be made available equally to all bidders of the Project and the Contractor for the Project. The fill shall be extracted from the real propel1y commonly known as South Grove Lake ("South Grove"), as described in Collier County Board of Zoning Appeals Resolution No. 08-115 approving a conditional use for earth-mining (the "Resolution"). Ave Maria's obligation to provide fill material to Collier County hereundep is subject to the following terms and conditions: A, Quantity. The estimated amount of fill to be excavated and made available under this Agreement is approximately 1.38 million cubic yards. This Agreement is not intended to grant Collier County or the Contractor exclusive rights to all fill material from South Grove, aod Ave Maria shall be entitled to sell fill material fi'om South Grove to third parties, although Ave Maria's obligation to provide fill material few the County's Project shall take priority over any commitment to other purchasers. This Agreement shall apply only to the Project, as defined hereinabove. and not to any other Collier County right-of-way expansion. B. Quality. Fill material provided from South Grove shall conform to the requirements listed in Section J 20- 7 of the Florida Department of'Transportation . . . Agenda Item No. 1684 March 9, 2010 Page 12 of 16 Standard Specificationsfor Road and Bridge Construction 2007. C. Payment. Should the awarded Contractor exercise their right to use the fill, they shall be responsible for all costs associated with transporting the fill material from South Grove to the Project. Ave Maria will load the fill material onto Contractor's trucks at South Grove, and monitor and document the volume of material provided to Contractor. Ave Maria will invoice Contractor on the first of every month based on the volume of fill taken off site from the prior month, and the Contractor shall pay each invoice within thirty (30) days following receipt. Should the Contractor fail to pay any such invoice within said 30 day period, then Ave Maria may, in its sole discretion, decline to provide any further fill material for the Project until such time that the outstanding invoice is paid current. Collier County shall require that Contractor provide a performance and payment bond guaranteeing payment to Ave Maria of the sums due hereunder (the "Bond"). The Bond shall be in an amount not less than One hundred and Ten Percent (110%) of the estimated cost of the Project. shall contain typical and customary terms and clauses for such bonds, and shall otherwise accord with the requirements of Section 255.05, Florida Statutes. E. Schedule: Notice. Prior to commencement of the Project, Contractor shall suhmit to the County and Ave Maria a schedule of work activities required tor the Project ("Construction Schedule"). The Construction Schedule, at a minimum, shall indicate when Contractor will pick up the fill material from South Grove. On a weekly or monthly basis, as agreed upon in writing between Contractor and Ave Maria, Contractor shall provide Ave Maria and County updates to the Construction Schedule which shall indicate the progress of the required work activities required and any changes to interim completions and start dates. In no case shall Contractor give Ave Maria less than sixty (60) day's prior written notice of the date that Contractor wishes to pick up the initial delivery 0 f fill material from South Grove. '~'- F. Contractor's Insurance/Inderrmity Requirements. Collier County shall require Contractor and any subcontractor(s) who transports fill material from South Grove carry property damage and public liability insurance coverage in the following amounts with the County and Ave Maria named as additional insured parties (the "Required Insurance"): Auto/General Liability $2,000,008 $1,000,000 $1,000,000 $500,000 Combined Single Limit Anv One OccuITence ~ Personal Injury Property Damage .- The Required Insurance policy binders shall reflect that each additional insured party shall be indenmified on a primary and non-contributory hasis utilizing an ISO standard endorsement at least as broad as CG 7()10 (11/85), (policy or endorsement will include coverage it)r 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 con'esponding policies for the Required Insurance to Ave Maria within ten (10) 2 --..--.'.__ 'r ...~.- , .---...."., . Agenda Item No. 1684 March 9, 2010 Page 13 of 16 days following Ave Maria's written request for same The County's agreement with Contractor shall provide for the following indemnity in favor of both the County and Ave Maria: To the maximum extent permitted by Florida law, the Contractor shall indemnifY and hold harmless Collier County and Ave Maria Development, LLLP, a Florida limited liability limited partnership ("Ave Maria"), and their respective officers and employees, from any and all liabilities, damages, losses and costs, including, but not limited to, reasonable atto11leys' fees and paralegals' fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of the Contractor or anyonc employed or utilized by the Contractor in the performance of this Agreement. This indemnification obligation shall not be construed to negate, abridge or reduce any other rights or remedies which otherwise may be available to an indemnified parties or persons described in this paragraph. This section does not pertain to any incident arising from the sole negligence of Collier County or Ave Maria. The foregoing indenmification shall not constitute a waiver of sovereign immunity beyond the limits set f(llih in section 768.28, Florida Statutes. Contractor shall include slIch indemnity language in all agreements it enters into with subcontractors that are hired to transport fill material from South Grove for the Project. Le!!al Matters 2. This Af,'feement shall be considered a Supplemental Agreement to the DCA, and shall not be constructed or characterized as a developmcnt agreement under the Florida Local Governmcnt Developmcnt Agrccment Act. 3. The burdens of this Agrecment shall be binding upon, and the benefIts of this Ai,'feemcnt shall inure to, all successors in interest to the paJiies to this Agreement. 4. In the event state or federal laws are cnacted after the execution of this Agreement, which are applicable to and preclude in whole Dr in part the paJiies' compliance with the terms of this Agreement, then in sllch event this /\grecment shall be modified or revoked as is necessary to comply with sllch laws, in a many which best reflects the intent of this Agreement. The invalidity of one or more tCI:ms or conditions in this Agreement shall not affect the validity of the remaining pOliion of the Agreement. provided that the material purposes of this Agreement can be determined and etlcctuated. ~ 5. Except as otherwise provided herein, this Agreement shall only be amended by mutual written consent of the pm1ies hercto or by their successors in interest All notices and other communications required or permitted hereunder shall be in writing and shall bc sent by Certified Mail, return receipt requested, or by a nationally recognized ovemighf delivery service, and addressed to the parties as f()llows (or such other address of which a party hereto shall give notice): , ., ,'''-, .<_. . . Agenda Item No. 1684 March 9, 2010 Page 14 of 16 For the County: Name/Title: Address: County Manager 3301 Tamiami Trai~ East Naples, Florida 34112 239-252-8383 239-252-4010 Phone: Fax: With copies to: Address: Administrator, Transportation Division 2885 S. Horseshoe Drive Naples, Florida 34104 239-252-8192 239-252-2726 Phone: Fax: For Ave Maria: Namerritle: Address: David B. Genson; Vice President of Engineering 2600 Golden Gate Parkway Naples, Florida 34105 239-262-2600 239-262- 1797 Phone: Fax: With copies to: George L. Varnadoe, Esquire CheftY Passidomo 871 5th Avenue South Naples, Florida 34102 Phone: 239-261-9300 Fax: 239-261-9782 Notice shall be deemed to have been given on the next successive business day to the date (lfthe courier, if sent by nationally recognized overnight delivery service, or if delivered by Certified Mail, upon actual receipt. 10. Ave Maria 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 Ave Maria, then it sball be deemed tenninated and rendered null and void. I I. 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 tiJr injunctive relief in the Circuit Court of Collier County to enforce the tern1S 0 f this Agreement, and remedy being cumulative with any and all other remedies available to the parties for the enf()rcement 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 he dra1tecl. 4 - ----..-,- - -""- ~,,_,"_', _ .'_'_._H_"'" ..._," . . Agenda Item No 1684 March 9, 2010 Page 15 of 16 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 paJties with respect thereto hereby are canceled. This Agreement is not intended to aJnend or modify any other written Agreement between the parties with respect to the Project. . 13. The individuals signing this Agreement on behalf of each party represents and warrants that he or she has the full power aJld 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 ofthis 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 0 f this Agreement on any persons other than the parties and their respective legal representatives, successors and pennitted 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 Agreemcnt to bc cxecutcd by their appropriate officials, as of the datc first above writtcn. Attest: DWIGHT E. BROCK, Clcrk BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA By: By: , Deputy Clcrk Donna Fiala, Chairman REMAINDER OF PAGE INTENTIONALLY LEFT BLANK REMAINING SIGNATURE PAGE TO FOLLOW 5 . . . . ATTEST: "'-A '___" 11 fI 7 IliLUA ~ '-.::, .It /( j f-C1 i.. Printed Name~/IJa '" ,'", --:-; "-vI ~( I,v. Corporate Seal .- to fo nn Klatzkow torney ,..~- 6 -,..,.~._---~._, --,'..,...,,-.......,. ..,... .......>. -,',- Agenda Item No. 1684 March 9, 2010 Page 16 of 16 AVE MARIA DEVELOPMENT, LLLP, a Florida limited liability limited partnership By: Barron Collier Corporation, a Florida corporation, its Managing General Partner 1 ~'.--<11..< //," \~ . \ . I By: ~. s E. Baird, a esident of Ba .ollier Corporation, as Managing General Partner of Ave Maria Development, LLLP _'n__" "