Backup Documents 10/13/2009 Item #16B 2ORIGINAL DOCUMENTS CHECKLIST & ROUTING SLIP 16B 2
TO ACCOMPANY ALL ORIGINAL DOCUMENTS SENT TO
THE BOARD OF COUNTY COMMISSIONERS OFFICE FOR SIGNATURE
Print on pink paper. Attach to original document. Original document~ should be hand delivered to the Board Office. The completed routing slip and original
documents are to be forwarded to the Board Office only after the Board has taken action on the item.)
ROUTING SLIP
Complete routing lines #1 through #4 as appropriate for additional signatures, dates, and/or information needed. If the document is already complete with the
exception of the Chairman's signature, draw a line through routing lines #I through #4, complete the checklist, and forward to ion Mitchell (line #5).
Route to Addressee(s)
List in routing order
Office
Initials
Date
1.
appropriate.
(Initial )
A licable
2.
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13,
Agenda Item Number
3.
Approved by the BCC
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4.
by the Office of the County Attorney. This includes signature pages from ordinances,
Type of Document
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5. Ian Mitchell, BCC Supervisor
Board of County Commissioners
Attached
to l( b b
6. Minutes and Records
Clerk of Court's Office
PRIMARY CONTACT INFORMATION
(The primary contact is the holder of the original document pending BCC approval. Normally the primary contact is the person who created/prepared the executive
summary. Primary contact information is needed in the event one of the addressees above, including Sue Filson, need to contact staff for additional or missing
infortttation. All original documents needing the BCC Chairman's signature are to be delivered to the BCC office only after the BCC has acted to approve the
item.
Name of Primary Staff
Initial the Yes column or mark "N /A" in the Not Applicable column, whichever is
Phone Number
NIA (Not
Contact
appropriate.
(Initial )
A licable
Agenda Date Item was
{� �,,
13,
Agenda Item Number
Approved by the BCC
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by the Office of the County Attorney. This includes signature pages from ordinances,
Type of Document
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Number of Original
resolutions, etc. signed by the County Attorney's Office and signature pages from
Attached
Documents Attached
contracts, agreements, etc. that have been fully executed by all parties except the BCC
LIM
INSTRUCTIONS & CHECKLIST
I: Forms/ County Forms/ BCC Forms/ Original Documents Routing Slip WWS Original 9.03.04, Revised 1.26.05, Revised 2.24.05, Revised 7.31.09 t
Initial the Yes column or mark "N /A" in the Not Applicable column, whichever is
Yes
NIA (Not
appropriate.
(Initial )
A licable
1.
I
Original document has been signed/initialed 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, agreements, etc. that have been fully executed by all parties except the BCC
Chairman and Clerk to the Board and possibly State Officials.)
2.
All handwritten strike - through and revisions have been initialed by the County Attorney's
Office and all 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 Ian Mitchell in the BCC office within 24 hours of BCC approval.
Some documents are time sensitive and require forwarding to Tallahassee within a certain
time frame or the BCC's actions are nullified. Be a ar, of your deadlinesi
6.
The document was approved by the BCC on lip 1. (enter date) and all changes
made during the meeting have been incorporated in the attached document. The
Coun Attorney's O ce has viewed the changes, if aRPlicable.
I: Forms/ County Forms/ BCC Forms/ Original Documents Routing Slip WWS Original 9.03.04, Revised 1.26.05, Revised 2.24.05, Revised 7.31.09 t
AVE MARIA
DEVELOPMENT, LLLP
2600 Golden Gate Parkway
Naples, Florida, 34105
Phone No: 239 - 262 -2600
Fax No: 239 - 261 -1797
To: Mr. Kevin Dugan, Project Manager
LETTER OF TRANSMITTAL
Date:
10/5/2009
Project Name:
Oil Well Road
Reference:
Supplemental Fill Agreement for Sale
of Fill
Collier County Government — Transportation
Engineering and Construction Management -
Division
2885 South Horseshoe Drive _ `
Naples, Florida 34104
We are sending attached via:
0 Delivery ❑ Mail ❑ Client Pickup ❑ Overnight Delivery
The following items:
Copies Date
Description
2 10/2009
Executed Supplemental Agreement for Sale of Fill between Collier County and
Ave Maria Development, LLLP
These are transmitted as checked below:
0 For Approval
Comments:
❑ ForYour Use ,❑ As Requested ❑ For Review and Comment
Please contact me if you have questions, or require additional information.
Copy To: Will Dempsey, Cheffy Passidomo Signed:
David B. Genson, PE
INSTR 4354612 OR 4502 PG 2581
RECORDED 10/22/2009 11:21 AM PAGES 6
DWIGHT E. BROCK
COLLIER COUNTY CLERK OF THE CIRCUIT COURT
REC $52.50 169 SUPPLEMENTAL AGREEMENT FOR SALE OF FILL
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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 ").
RECITALS
WHEREAS, Paragraph 7 of the DCA requires Ave Maria to provide sufficient 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 of fill material for
the Project.
NOW THEREFORE, in consideration of the following agreements, the mutual exchange
of Ten 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:
1. Sale of Fill for the Project. Ave Maria agrees to provide sufficient 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 of fill 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 property 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 hereunder is subject to the following terms and conditions:
A. Quaritit . 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, and Ave Maria shall be entitled to sell fill material
from South Grove to third parties, although Ave Maria's obligation to provide fill
material for 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. Qualit . Fill material provided from South Grove shall conform to the
requirements listed in Section 120 -7 of the Florida Department of' Transportation
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Standard Specifications for Road and Bridge Construction 2007.
C. Payrnent. 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 ",I. 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 submit
to the County and Ave Maria a schedule of work activities required for 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 of fill
material from South Grove.
F. Contractor's Insurance /Indemnity 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 $2,000,000 Combined Single Limit
$1,000,000 Any One Occurrence
$1,000,000 Personal Injury
$500,000 Property Damage
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 Ave Maria within ten (10)
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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
attorneys' fees and paralegals' fees, to the extent caused by the
negligence, recklessness, or intentionally wrongful conduct of the
Contractor or anyone 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 indemnification shall not constitute a waiver of sovereign
immunity beyond the limits set forth in section 768.28, Florida Statutes.
Contractor shall include such indemnity language in all agreements it enters into
with subcontractors that are hired to transport fill material from South Grove for
the Project.
Legal Matters
2. This Agreement shall be considered a Supplemental Agreement to the DCA, and
shall not be constructed or characterized as a development agreement under the Florida Local
Government Development Agreement Act.
3. The burdens of this Agreement shall be binding upon, and the benefits of this
Agreement shall inure to, all successors in interest to the parties to this Agreement.
4. 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.
5. 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):
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For the County:
Name /Title:
County Manager
Address:
3301 Tamiami Trail, East
Naples, Florida 34112
Phone:
239- 252 -8383
Fax:
239 - 252 -4010
With copies to: Administrator, Transportation Division
Address: 2885 S. Horseshoe Drive
Naples, Florida 34104
Phone: 239 - 252 -8192
Fax: 239 - 252 -2726
For Ave Maria:
Name /Title: David B. Genson; Vice President of Engineering
Address: 2600 Golden Gate Parkway
Naples, Florida 34105
Phone: 239 -262 -2600
Fax: 239- 262 -1797
With copies to:
George L. Varnadoe, Esquire
Cheffy Passidomo
821 5`" 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 of the
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 shall be deemed terminated and
rendered null and void.
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.
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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 Project.
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 permitted 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'S: BROCK,, Clerk
By' —
D ty erk
Attest at to #
a> l"A oN
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
ii ,�� f
By:
Donna Fiala, Chairman
October 13, 2009
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
REMAINING SIGNATURE PAGE TO FOLLOW
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ATTEST:
Printed Name:
Corporate Seal
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AVE MARIA DEVELOPMENT, LLLP, a
Florida limited liability limited partnership
By: Barron Collier Corporation, a Florida
corporati , its Managing General
Partner,-
rug'Tas E. BairZl; a'�.ice President
f Barron Collier Corporation, as
Managing General Partner of Ave
Maria Development, LLLP