Fortino Purchase Agreement BAYSHORE CRA
Folio Number: 00388440007, 00388480009, 77510200006,
77510280000, 77510320009&77510240008 1
AGREEMENT FOR SALE AND PURCHASE FOR
THE REDEVELOPMENT OF THE GATEWAY MINI-TRIANGLE
THIS AGREEMENT is made and entered into by and between COLLIER COUNTY
COMMUNITY REDEVELOPMENT AGENCY, its successors and assigns, whose
mailing address is 3299 Tamiami Trail E., Naples, FL 34112 (hereinafter referred to as
"Seller"), and FORTINO CONSTRUCTION & DEVELOPMENT, LLC., a Florida limited
liability company, its successors and assigns, whose mailing address is PO Box 10102,
Naples, Florida 34101, (hereinafter referred to as "Purchaser").
WITNESSETH
WHEREAS, Seller is the owner of that certain parcel of real property (hereinafter
referred to as "Property"), located in Collier County, State of Florida, and being more
particularly described in Exhibit "A", attached hereto and made a part hereof by
reference.
WHEREAS, Purchaser is desirous of purchasing the Property, subject to the conditions
and other agreements hereinafter set forth, and Seller is agreeable to such sale and to
such conditions and agreements. Property is being sold "as is".
WHEREAS, Purchaser agrees to redevelop the Property, with a multi-story hotel with up
to 193 units, meeting space, a rooftop restaurant, ground floor retail and personal
services as well as professional offices and up to 89 multi-family residential dwelling
units.
NOW, THEREFORE, and for and in consideration of the premises and the respective
undertakings of the parties hereinafter set forth and the sum of Ten Dollars ($10.00), the
receipt and sufficiency of which is hereby acknowledged, it is agreed as follows:
I. AGREEMENT
1.01 In consideration of the purchase price and upon the terms and conditions
hereinafter set forth, Seller shall sell to Purchaser and Purchaser shall purchase
from Seller the Property, described in Exhibit "A". Property is being sold "as is".
II. PAYMENT OF PURCHASE PRICE
2.01 The purchase price (the "Purchase Price") for the Property shall be FIVE
MILLION TWO HUNDRED THOUSAND and no/100 Dollars ($5,200,000), (U.S.
Currency) payable by wire transfer (said transaction hereinafter referred to as the
"Closing"). Said payment shall be full compensation for the Property conveyed.
This is a cash transaction with no contingencies for financing.
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2.02 Purchaser shall deliver a deposit of FIFTY TWO THOUSAND and no/100
Dollars ($52,000) together with this Agreement signed by Purchaser, with
additional deposit of ONE HUNDRED THOUSAND and no/100 Dollars ($100,000)
by December 15, 2014 (hereinafter collectively referred to as "Earnest Money") .
The Earnest Money will be held in escrow by Gray Robinson, ("Escrow Agent")
subject to clearance. Escrow Agent's address is 8889 Pelican Bay Boulevard,
Suite 400, Naples, FL 34108; Phone: (239) 598-3601.
2.03 The Earnest Money shall be held by Escrow Agent in an interest bearing
account to be disbursed as provided herein. In the event that the sale of the
Property as contemplated by this Agreement is closed in accordance with the
terms and conditions hereof, the Escrow Agent shall apply the Earnest Money and
any interest thereon to the Purchase Price due on the date of closing. In the event
the Purchaser defaults under this Agreement or fails to close by the established
closing date as set out in 3.01 for any reason other than a default by the Seller or a
catastrophic event beyond the reasonable control of the Purchaser, the Escrow
Agent shall release the Earnest Money to the Seller as actual damages for the
Purchaser's failure to close, and the Parties shall have no further obligation to one
another under this Agreement. In the event the Seller fails to close within fifteen
(15) days after the established closing date as set out above for any reason, to
include any failure to deliver good and marketable title to the real property, the
Escrow Agent upon request of Purchaser shall release the Earnest Money to the
Purchaser and the Parties shall have no further obligation to one another under
this Agreement.
III. CLOSING
3.01 The Closing (THE "CLOSING DATE", "DATE OF CLOSING", OR
"CLOSING") of the transaction shall be held on or before one hundred eighty (180)
days following execution of this Agreement by the Purchaser, unless extended by
mutual written agreement of the parties hereto. The Manager of the Real Property
Management Section or designee is authorized to enter into such mutual written
agreements on behalf of the County for extensions of up to an additional sixty (60)
days without further approval by the Board of County Commissioners. The
Closing shall be held at the Collier County Attorney's Office, Administration
Building, 3299 Tamiami Trail East, Suite 800, Naples, Florida. The procedure to
be followed by the parties in connection with the Closing shall be as follows:
3.011 Seller shall convey a marketable title free of any liens, encumbrances,
exceptions, or qualifications. Marketable title shall be determined according to
applicable title standards adopted by the Florida Bar and in accordance with
law. At the Closing, the Seller shall cause to be delivered to the Purchaser
the items specified herein and the following documents and instruments duly
executed and acknowledged, in recordable form:
3.0111 Statutory Deed in favor of Purchaser conveying title to the
Property, free and clear of all liens and encumbrances other than:
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C
(a) The lien for current taxes and assessments. 1 I
(b) Such other easements, restrictions or conditions of record.
3.0112 Combined Purchaser-Seller closing statement.
3.0113 A "Gap," Tax Proration, Owner's and Non-Foreign Affidavit," as
required by Section 1445 of the Internal Revenue Code and as required
by the title insurance underwriter in order to insure the "gap" and issue
the policy contemplated by the title insurance commitment.
3.012 Seller shall provide a copy of their existing Owner's Title Insurance
Policy(ies) as evidence. Purchaser, at their own expense, will be responsible for
obtaining their own title insurance commitment and Owner's Policy of Title
Insurance.
3.013 At the Closing, the Purchaser, or its assignee, shall cause to be delivered to
the Seller the following:
3.0131 A negotiable instrument, by way of a wire transfer, in an amount
equal to the Purchase Price. No funds shall be disbursed to Seller until
the Title Company verifies that the state of the title to the Property has
not changed adversely since the date of the last endorsement to the
commitment, referenced in Section 4.011 thereto, and the Title Company
is irrevocably committed to pay the Purchase Price to Seller and to issue
the Owner's title policy to Purchaser in accordance with the commitment
immediately after the recording of the deed.
3.0132 Funds payable to the Seller representing the cash payment due
at Closing in accordance with Article III hereof, shall be subject to
adjustment for prorations as hereinafter set forth.
3.02 The cost of the Owner's Form B Title Policy, issued pursuant to the
Commitment provided for in Section 4.011 below, shall be paid by Purchaser. The
cost of the title commitment shall also be paid by Purchaser.
3.03 Purchaser, at its sole cost and expense, shall pay at Closing all documentary
stamp taxes due relating to the recording of the Statutory Deed, in accordance with
Chapter 201.01, Florida Statutes.
3.04 Purchaser shall pay for the cost of recording the Statutory Deed and
Agreement.
3.05 The cost of recording any instruments necessary to clear Seller's title to the
Property will be paid by Seller.
3.06 Each party shall be responsible for payment of its own attorney's fees, if any.
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3.07 At time of Closing, Seller shall assign, convey, grant and transfer, all its rights,
title, interest in and to any existing Leases for the unexpired balance of the term of
the leases. Any deposits being held by Seller shall be transferred to Purchaser at
time of Closing.
IV. REQUIREMENTS AND CONDITIONS
4.01 Upon execution of this Agreement by both parties or at such other time as
specified within this Article, Purchaser and/or Seller, as the case may be, shall
perform the following within the times stated, which shall be conditions precedent
to the Closing;
4.011 Within forty-five (45) days after the date hereof, Purchaser shall obtain
as evidence of title an ALTA Commitment for an Owner's Title Insurance
Policy (ALTA Form B-1970) covering the Property, together with hard copies of
all exceptions shown thereon. Purchaser shall have thirty (30) days, following
receipt of the title insurance commitment, to notify Seller in writing of any
objection to title other than liens evidencing monetary obligations, if any, which
obligations shall be paid at closing. If the title commitment contains exceptions
that make the title unmarketable, Purchaser shall deliver to the Seller written
notice of its intention to waive the applicable contingencies or to terminate this
Agreement.
4.012 If Purchaser shall fail to advise the Seller in writing of any such
objections in Seller's title in the manner herein required by this Agreement, the
title shall be deemed acceptable. Upon notification of Purchaser's objection to
title, Seller shall have thirty (30) days to remedy any defects in order to convey
good and marketable title, except for liens or monetary obligations which will
be satisfied at Closing. Seller, at its sole expense, shall use its best efforts to
make such title good and marketable. In the event Seller is unable to cure said
objections within said time period, Purchaser, by providing written notice to
Seller within seven (7) days after expiration of said thirty (30) day period, may
accept title as it then is, waiving any objection; or Purchaser may terminate the
Agreement. A failure by Purchaser to give such written notice of termination
within the time period provided herein shall be deemed an election by
Purchaser to accept the exceptions to title as shown in the title commitment.
4.013 Purchaser shall have the option, at its own expense, to obtain a current
survey of the Property prepared by a surveyor licensed by the State of Florida.
No adjustments to the Purchase Price shall be made based upon any change
to the total acreage referenced in Exhibit "A", if any. Seller agrees to furnish
any existing surveys of the Property, if any, to Purchaser within thirty (30) days
of execution of this Agreement.
4.014 Purchaser acknowledges there shall be covenants that run with the
lands of the property herein described that will be fully binding on any
successor, heirs, and assigns of owners who may acquire any right, title or
interest in or to the Property, attached hereto and made a part hereof by
reference as Exhibit "B."
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4.015 Purchaser may not sell, convey, assign or otherwise transfer or dispose
of any or all of the Property or any of its rights, interests, duties or obligations
under this Agreement prior to the completion date of the project identified
conceptually in the Conceptual Plans set forth in Exhibit "C" hereto without
prior written approval of Seller. The Seller reserves the right to unilaterally
deny the sale, conveyance, assignment or transfer to a third party. A sale,
conveyance, assignment, transfer or disposition by the Purchaser of the
Property or any of its rights, interests, duties or obligations under this
Agreement to a joint venture, general partnership or limited partnership in
which the Purchaser is a general partner or managing partner shall not
• constitute a sale, conveyance, assignment, transfer, or disposition which
requires the Seller's approval.
4.016 Purchaser shall provide written notice to Seller at least sixty (60) days
prior to any sale, conveyance, assignment, transfer or disposition by the
Purchaser of the Property which requires the Seller's approval pursuant to
Section 4.015 before becoming effective. Default of this provision by
Purchaser may result in voiding of the transaction.
4.017 The Covenants and Restrictions made a part hereof by reference to
Exhibit B, shall not be extinguished by foreclosure, bankruptcy, tax sale, or
other transfer.
V. APPRAISAL
5.01 Two independent appraisals were obtained per the guidelines set forth in
Florida Statute, Section 125.35.
VI. INSPECTION PERIOD
6.01 Purchaser shall have one hundred and fifty (150) days from the date of this
Agreement, ("Inspection Period"), to determine through appropriate investigation
that:
1. Soil tests and engineering studies indicate that the Property can be developed
without any abnormal demucking, soil stabilization or foundations.
2. There are no abnormal drainage or environmental requirements to the
development of the Property.
3. The Property is in compliance with all applicable State and Federal
environmental laws and the Property is free from any pollution or
contamination.
4. The Property can be utilized for its intended purpose.
6.02 If Purchaser is not satisfied, for any reason whatsoever, with the results of
any investigation, Purchaser shall deliver to Seller prior to the expiration of the
Inspection Period, written notice of its intention to waive the applicable
contingencies or to terminate this Agreement. If Purchaser fails to notify the Seller
in writing of its specific objections as provided herein within the Inspection Period,
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it shall be deemed that the Purchaser is satisfied with the results of its
investigations and the contingencies of this Article VI shall be deemed waived. In
the event Purchaser elects to terminate this Agreement because of the right of
inspection, Purchaser shall deliver to Seller copies of all engineering reports and
environmental and soil testing results commissioned by Purchaser with respect to
the Property.
6.03 Purchaser and its agents, employees and servants shall, at their own risk and
expense, have the right to go upon the Property for the purpose of surveying and
conducting site analyses, soil borings and all other necessary investigation.
Purchaser shall, in performing such tests, use due care and shall indemnify Seller
on account of any loss or damages occasioned thereby and against any claim
made against Seller as a result of Purchaser's entry. Seller shall be notified by
Purchaser no less than twenty four (24) hours prior to said inspection of the
Property.
VII. INSPECTION
7.01 Seller acknowledges that the Purchaser, or its authorized agents, shall have
the right to inspect the Property at any time prior to the Closing.
VIII. POSSESSION
8.01 Purchaser shall be entitled to full possession of the Property at Closing.
IX. PRORATIONS
9.01 Ad valorem and Non-Ad valorem property taxes shall be prorated between
Seller and Purchaser on a 365-day calendar or fiscal year, as appropriate, and
shall be based on the current year tax. If Closing occurs at a date which the
current year's tax is not fixed, taxes will be prorated based upon such prior year's
tax. In determining prorations, the closing date shall be allocated to Purchaser.
X. TERMINATION AND REMEDIES
10.01 If Seller shall have failed to perform any of the covenants and/or
agreements contained herein which are to be performed by Seller, within ten (10)
days of written notification of such failure, Purchaser may, at its option, terminate
this Agreement by giving written notice of termination to Seller. Purchaser shall
have the right to seek and enforce all rights and remedies available at law or in
equity to a contract vendee, including the right to seek specific performance of this
Agreement.
10.02 If the Purchaser has not terminated this Agreement pursuant to any of the
provisions authorizing such termination, and Purchaser fails to close the
transaction contemplated hereby or otherwise fails to perform any of the terms,
covenants and conditions of this Agreement as required on the part of Purchaser
to be performed, provided Seller is not in default, then as Seller's sole remedy,
Seller shall have the right to terminate and cancel this Agreement by giving written
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notice thereof to Purchaser, whereupon one percent (1%) of the purchase price
shall be paid to Seller as liquidated damages which shall be Seller's sole and
exclusive remedy, and neither party shall have any further liability or obligation to
the other except as set forth in paragraph 2.02 and paragraph 13.01, hereof. The
parties acknowledge and agree that Seller's actual damages in the event of
Purchaser's default are uncertain in amount and difficult to ascertain, and that said
amount of liquidated damages was reasonably determined by mutual agreement
between the parties, and said sum was not intended to be a penalty in nature.
10.03 Should any litigation or other action be commenced between the parties
concerning the Property or this Agreement, the party prevailing in such litigation or
other action shall be entitled, in addition to such relief as may be granted, to a
reasonable sum for its attorney's fees, paralegal charges and all fees and costs for
appellate proceedings in such litigation or other action; which sum may be
determined by the court or in a separate action brought for that purpose.
10.04 The parties acknowledge that the remedies described herein and in the
other provisions of this Agreement provide mutually satisfactory and sufficient
remedies to each of the parties, and take into account the peculiar risks and
expenses of each of the parties.
XI. SELLER'S AND PURCHASER'S REPRESENTATIONS AND WARRANTIES
11.01 Seller and Purchaser represent and warrant the following:
11.011 Seller and Purchaser have full right and authority to enter into and to
execute this Agreement and to undertake all actions and to perform all tasks
required of each hereunder. Seller is not presently the subject of a pending,
threatened or contemplated bankruptcy proceeding.
11.012 Seller has full right, power, and authority to own and operate the
Property, and to execute, deliver, and perform its obligations under this
Agreement and the instruments executed in connection herewith, and to
consummate the transaction contemplated hereby. All necessary
authorizations and approvals have been obtained authorizing Seller and
Purchaser to execute and consummate the transaction contemplated hereby.
At Closing, certified copies of such approvals shall be delivered to Purchaser
and/or Seller, if necessary.
11.013 The warranties set forth in this Article shall be true on the date of this
Agreement and as of the date of Closing. Purchaser's acceptance of a deed to
the said Property shall not be deemed to be full performance and discharge of
every agreement and obligation on the part of the Seller to be performed
pursuant to the provisions of this Agreement.
11.014 Seller represents that it has no knowledge of any actions, suits, claims,
proceedings, litigation or investigations pending or threatened against Seller, at
law, equity or in arbitration before or by any federal, state, municipal or other
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governmental instrumentality that relate to this agreement or any other
property that could, if continued, adversely affect Seller's ability to sell the
Property to Purchaser according to the terms of this Agreement.
11.015 No party or person other than Purchaser has any right or option to
acquire the Property or any portion thereof.
11.016 Until the date fixed for Closing, so long as this Agreement remains in
force and effect, Seller shall not encumber or convey any portion of the
Property or any rights therein, nor enter into any agreements granting any
person or entity any rights with respect to the Property or any part thereof,
without first obtaining the written consent of Purchaser to such conveyance,
encumbrance, or agreement which consent may be withheld by Purchaser for
any reason whatsoever.
11.017 There are no unrecorded restrictions, easements or rights of way (other
than existing zoning regulations) that restrict or affect the use of the Property,
and there are no maintenance, construction, advertising, management,
employment, service or other contracts affecting the Property.
11.018 Seller has no knowledge that there are any suits, actions or arbitration,
bond issuances or proposals therefor, proposals for public improvement
assessments, pay-back agreements, paving agreements, road expansion or
improvement agreements, utility moratoriums, use moratoriums, improvement
moratoriums, administrative or other proceedings or governmental
investigations or requirements, formal or informal, existing or pending or
threatened which affects the Property or which adversely affects Seller's ability
to perform hereunder; nor is there any other charge or expense upon or related
to the Property which has not been disclosed to Purchaser in writing prior to
the effective date of this Agreement.
11.019 Seller acknowledges and agrees that Purchaser is entering into this
Agreement based upon Seller's representations stated above and on the
understanding that Seller will not cause the zoning or physical condition of the
Property to change from its existing state on the effective date of this
Agreement up to and including the Date of Closing. Therefore, Seller agrees
not to enter into any contracts or agreements pertaining to or affecting the
Property and not to do any act or omit to perform any act which would change
the zoning or physical condition of the Property or the governmental
ordinances or laws governing same. Seller also agrees to notify Purchaser
promptly of any change in the facts contained in the foregoing representations
and of any notice or proposed change in the zoning, or any other action or
notice, that may be proposed or promulgated by any third parties or any
governmental authorities having jurisdiction of the development of the property
which may restrict or change any other condition of the Property.
11.020 Any loss and/or damage to the Property between the date of this
Agreement and the date of Closing shall be Seller's sole risk and expense.
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XII. NOTICES B I
12.01 Any notice, request, demand, instruction or other communication to be
given to either party hereunder shall be in writing, sent by registered, or certified
mail, return receipt requested, postage prepaid, addressed as follows:
If to Seller: Real Property Management
Facilities Management Building
3335 Tamiami Trail East, Suite 101
Naples, Florida 34112-5356
With a copy to: Jennifer A. Belpedio, Assistant County Attorney
Office of the County Attorney
Administration Building
3299 Tamiami Trail East, Suite 800
Naples, Florida 34112-5749
If to Purchaser: Anthony Fortino, Managing Member
Fortino Construction and Development, LLC
PO Box 10102
Naples, FL 34101
12.02 The addressees and addresses for the purpose of this Article may be
changed by either party by giving written notice of such change to the other party
in the manner provided herein. For the purpose of changing such addresses or
addressees only, unless and until such written notice is received, the last
addressee and respective address stated herein shall be deemed to continue in
effect for all purposes.
XIII. REAL ESTATE BROKERS
13.01 If any brokerage commissions or fees are to be paid, they shall be the sole
responsibility of the Seller and addressed separately.
XIV. MISCELLANEOUS
14.01 This Agreement may be executed in any manner of counterparts which
together shall constitute the agreement of the parties.
14.02 This Agreement and the terms and provisions hereof shall be effective as of
the date this Agreement is executed by both parties and shall inure to the benefit
of and be binding upon the parties hereto and their respective heirs, executors,
personal representatives, successors, successor trustee, and assignees
whenever the context so requires or admits.
14.03 Any amendment to this Agreement shall not bind any of the parties hereof
unless such amendment is in writing and executed and dated by Purchaser and
Seller. Any amendment to this Agreement shall be binding upon Purchaser and
Seller as soon as it has been executed by both parties.
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14.04 Captions and section headings contained in this Agreement are for
convenience and reference only; in no way do they define, describe, extend or
limit the scope or intent of this Agreement or any provisions hereof.
14.05 All terms and words used in this Agreement, regardless of the number and
gender in which used, shall be deemed to include any other gender or number as
the context or the use thereof may require.
14.06 No waiver of any provision of this Agreement shall be effective unless it is in
writing signed by the party against whom it is asserted, and any waiver of any
provision of this Agreement shall be applicable only to the specific instance to
which it is related and shall not be deemed to be a continuing or future waiver as
to such provision or a waiver as to any other provision.
14.07 If any date specified in this Agreement falls on a Saturday, Sunday or legal
holiday, then the date to which such reference is made shall be extended to the
next succeeding business day.
14.08 Purchaser is aware of and understands that the "offer" to purchase
represented by this Agreement is subject to acceptance and approval by the
Board of County Commissioners of Collier County, Florida.
14.09 If the Seller holds the Property in the form of a partnership, limited
partnership, corporation, trust or any form of representative capacity whatsoever
for others, Seller shall make a written public disclosure, according to Chapter 286,
Florida Statutes, under oath, of the name and address of every person having a
beneficial interest in the Property before Property held in such capacity is
conveyed to Collier County. (If the corporation is registered with the Federal
Securities Exchange Commission or registered pursuant to Chapter 517, Florida
Statutes, whose stock is for sale to the general public, it is hereby exempt from the
provisions of Chapter 286, Florida Statutes.)
14.10 This Agreement is governed and construed in accordance with the laws of
the State of Florida.
XV. ENTIRE AGREEMENT
15.01 This Agreement and the exhibits attached hereto contain the entire
agreement between the parties, and no promise, representation, warranty or
covenant not included in this Agreement or any such referenced agreements has
been or is being relied upon by either party. No modification or amendment of this
Agreement shall be of any force or effect unless made in writing and executed and
dated by both Purchaser and Seller. Time is of the essence of this Agreement.
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XVI. RESTRICTIONS ON USE
16.01 This Property shall be restricted to those uses allowed by the Gateway
Triangle Mixed Use District Overlay and as otherwise described in Exhibit "B"
hereof.
16.02 By approval of this Agreement, the Seller has approved the Consultant's
Conceptual Plans set forth in Exhibit "C" hereto. A final site development plan
must be submitted to the County Manager prior to submittal of the final site
development plan to the County.
IN WITNESS WHEREOF, the parties hereto have signed below.
Dated Project/Acquisition Approved by BCC: \ \\\"2.\ l
AS TO SELLER:DATED: 11 / i1Ji'4
ATTEST: COLLIER COUNTY COMMUNITY
DWIGHT E. BROCK, Clerk REDEVELOPMENT AGENCY
k" ''' -)1/4-1- (1-1;LiV\-4/L°-Pk-C -- BY: drr►-yam
Attest as to Chairman's , Deputy Clerk DON A FIALA, Chairman
signature only,
Approved as to form and legality:
Jennifer A. Belp io s, ��'y`
Assistant Count orney `
AS TO PURCHASER:
DATED: i l.� J - t--‘
FORTINO CONSTRUCTION AND
` c n. '�, DEVELOPM T LLC, a Florida limited
Witness (Signature) liability ::?;•_ 01.01v
/
Name: ` gym, :�r.:cam B //����`-ni// ! _ -
(Print or Type) Anthony F ,;r+, as Managing Member
Gam ..,.._ ,'- , L
Witness (Signature)
Name: 7:,,",c,. -\. zt?Ct . Li
(Print or Type)
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EXHIBIT "A"
Property ID #77510240008, having a physical address of 1936 Davis Boulevard
Lots 5 through 11, inclusive, of Triangle Lake, according to the map or plat thereof
recorded in Plat Book 4, Page 38, of the Public Records of Collier County, Florida, Less
and excepting therefrom that portion thereof previously conveyed to the State of Road
Department of the State of Florida by deed of conveyance recorded in Deed Book 16,
Pages 163 and 164, of the Public Records of Collier County, Florida.
Less the following described parcel:
Those portions of Lots 5 and 6, Triangle Lake, a subdivision in Section 11, Township 50
South, Range 25 East, as per plat thereof recorded in Plat Book 4, Page 38, Public
Records of Collier County Florida, being described as follows:
Commence at the northwest corner of said Lot 6; thence along the west line and
southerly extension of said Lot 6, south 00 degrees 33'46" East, 245.26 feet to the
northerly existing right of way line of State Road 90 (US 41) (per Section 03010-2116)
for a Point of Beginning; thence along said southerly extension and west line North 00
degrees 33'46" West, 24.82 feet to the beginning of a curve concave southwesterly;
thence along the arc of said curve the right, having a radius of 11,529.16 feet, a central
angle of 00 degrees 47'18.3", an arc of 158.65 feet, the chord for which bears South 53
degrees 53'54" East to the east line of said Lot 5 and the end of said curve; thence
along said east line and southerly extension South 37 degrees 59'11" West 20.01 feet
to said northerly existing right of way line and the beginning of a curve concave
southwesterly; thence along said northerly existing right of way line, the arc of said
curve to the left, having a radius of 11,509.16 feet, a central angle of 00 degree
42'45.9", an arc length of 143.17 feet, the chord for which bears North 53 degree 51'48":
West to the end of said curve and the Point of beginning.
Folio ID #00388480009, having a physical address of 1965 Tamiami Trail East and
Folio ID #77510200006, having a physical address of 1933 Tamiami Trail East
Parcel 1
A lot or parcel of land in the East half of the Northwest quarter of the Northwest quarter,
lying North of Tamiami Trail, of Section 11, Township 50 South of Range 25 East,
Collier County, Florida, being specifically described as follows:
From the point of intersection of the west boundary line of the East half of the Northwest
quarter of the Northwest quarter, lying North of the Tamiami Trail (formerly know as
Dixie Highway), of Section 11, Township 50 South, Range 25 East, Collier County,
Florida, with the Northeasterly right of way line of the said Tamiami Trail run in a
Southeasterly direction for 298.29 feet along the said Northeasterly right of way line, to
establish the point of beginning, thence from the point of beginning deflect 90 degrees
from Southeasterly to Northeasterly and run 338.2 feet, thence deflect 113 degrees
30'10" from Northeasterly to Northwesterly and run 107.18 feet thence deflect 66
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degrees 29'50" from Northwesterly to Southwesterly and run 295.46 feet to the said
Northeasterly right of way line of said Tamiami Trail, thence in a Southeasterly direction
run 98.29 feet along the said Northeasterly right of way line to the point of beginning.
The above described property containing 0.71 acres, more of less.
Parcel 2
And, Lot 4, Triangle Lake Subdivision as platted and recorded in the Public Records of
Collier County Florida, in Plat Book 4, Page 38.
Parcels 1 and 2 Less:
That portion of Lot 4, Triangle Lake, a subdivision, as per plat thereof recorded in Plat
Book 4, Page 38, Public Records of Collier County, Florida, and that portion of the
northwest 1/4, all being in Section 11, Township 50 south, Range 25 East.
Being described as follows:
Commence at the northwest corner of lot 6 of said Triangle Lake, thence along the west
line and the southerly extension of said Lot 6, South 00 degrees 33'46" East, 307.41
feet to the survey base line of State Road 90 (US 41) and to the beginning of a curve
concave southwesterly; thence along said survey base line, the arc of said curve to the
right, having a radius of 11,459.16 feet, a central angle of 00 degrees 31'43", an arc
length of 105.72 feet, the cord of which bears South 53 degrees 46'16" East to the end
of said curve, thence North 36 degrees 29'35" East, 50.00 feet to the intersection of the
southerly extension of the west line of said Lot 4 and the northerly existing right of way
line of said State Road 90 (US 41) (per Section 03010-2116) for a Point of beginning;
thence along said southerly extension and said west line North 37 degrees 59'11" East,
20.01 feet to the beginning of a curve concave southwesterly; thence along the arc of
said curve to the right, having a radius of 11,529.16 feet, a central angle of 00 degree
44'11.6", an arc length of 148.21 feet, the chord for which bears South 53 degrees
08'09" East to the end of said curve; thence South 37 degrees 59'11" West, 20 feet to
said northerly existing right of way line and the beginning of a curve concave
southwesterly; thence along said northerly existing right of way line, the arc of said
curve to the left, having a radius of 11,509.16 feet, a central angle of 00 degrees
44'16.2", an arc length of 148.21 feet, the chord for which bears North 53 degrees
08'16" West to the end of said curve and the Point of beginning.
Folio ID #00388440007, having a physical address of 1991 Tamiami Trail East
A lot or parcel of land in the East half of the Northwest quarter of the Northwest quarter,
lying North of the Tamiami Trial, of Section 11 in Township 50 South, Range 25 East,
Collier County, Florida being specifically described as follows.
From the point of intersection of the West boundary line of the East half of the
Northwest quarter of the Northwest quarter, lying North of the Tamiami Trail (formerly
known as Dixie Highway), of Section 11 in Township 50 South, Range 25 East, Collier
County, Florida, with the Northeasterly right of way line of the said Tamiami Trail run in
a Southeasterly direction for 396.58 feet along said Northeasterly right of way line, to
13
14B1
establish the Point of Beginning; thence from the Point of Beginning deflect 90 degrees
from the Southeasterly to the Northeasterly and run 322.02 feet; thence deflect 43
degrees 39 minute 10 seconds, from the Northeasterly to the Northerly and run 57.48
feet; thence deflect 69 degrees 51 minutes 00 seconds from Northerly to Northwesterly
and run 63.91 feet; thence deflect 66 degrees 29 minutes 50 seconds form
Northwesterly to Southwesterly and run 338.2 feet to the said Northeasterly right of way
line of said Tamiami Trail; thence in a southeasterly direction run 98.29 feet along said
Northeasterly right of way line the Point Beginning. The above described property
contains .073 acres more or less.
AND LESS AND EXCEPT
That portion of the Northwest 1/4 of section 11, Township 50 South, Range 25 East,
Collier County, Florida, being described as follows:
Commence at the northwest corner of Lot 6 of said Triangle Lake; thence along the
west line and the southerly extension of said Lot 6, South 00 degrees 33'46" East
307.41 feet to the survey base of State Road 90 (US 41) and to the beginning of a curve
concave southwesterly; thence along said survey base line, the arc of said curve to the
right, having a radius of 11 ,459.16 feet, a central angle of 01 degrees 15'59.2", an arc
length of 253.29 feet, the chord for which bears South 53 degrees 24'08" East to the
end of said curve; thence North 37 degrees 13'52' East, 50.00 feet to the northerly
existing right of way line of said State Road 90 (US 41) (per section 03010-2116) for a
Point of Beginning; thence North 37 degrees 59'11" East 20.00 feet to the beginning of
a curve concave southwesterly; thence along the arc of said curve to the right, having a
radius of 11,529.16 feet, a central angle of 00 degrees 29'17.3", an arc length of 98.22
feet, the chord for which bears south 52 degrees 31' 25" East to the end of said curve;
thence south 37 degrees 59'11" West, 20.00 feet to said Northerly existing right of way
line and the beginning of the curve concave southwesterly; thence along said northerly
existing right of way line, the arc of said curve to the left, having a radius of 11,509.16
feet, a central angle of 00 degree 29'20.3", an arc length of 98.22 feet, the cord which
bears north 52 degrees 31'28" west to the end of said curve and the point of beginning.
Containing 1,964 square feet.
Folio ID #77510280000 having a physical address of 2000 Davis Boulevard and Folio
#77510320009, having a physical address of 2054 Davis Boulevard.
Lots 12, 13, 14, and 15, Triangle Lake Subdivision, as platted and recorded in Plat Book
4, Page 38, Public Records of Collier County, Florida.
14
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1481
EXHIBIT "B"
DECLARATION OF RESTRICTIVE COVENANTS
This Declaration of Restrictive Covenants ("Declaration") is made and entered into this
day of , 2014, by FORTINO CONSTRUCTION AND
DEVELOPMENT, LLC, a Florida limited liability company, its successors and assigns,
(hereinafter referred to as "Developer"), in favor and for the benefit of COLLIER
COUNTY COMMUNITY REDEVELOPMENT AGENCY (hereinafter referred to as
"County"), a political subdivision of the State of Florida, for the property legally
described as:
See Exhibit "A"to Agreement
The aforementioned parcel is hereinafter referred to as the "Property". The Property is
located at 1936. 2000 and 2054 Davis Boulevard, and 1965, 1933, and 1991 Tamiami
Trail East, Naples, Florida 34112.
WITNESSETH:
1. Developer agrees to construct a Mixed Use Project that is acceptable to and
approved by the County comprising of a multi-story hotel with up to 193 units,
meeting space, rooftop restaurant, ground floor retail space and personal use
services as well as professional office use and up to 89 multi-family residential
dwelling units that will capitalize on the redevelopment opportunities and serve
as an aesthetically pleasing entryway into East Naples, as outlined in the zoning
verification letters dated July 24, 2014 and October 22, 2014, hereinafter
attached hereto and made a part hereof, and subject to deviations approved by
County.
2. Developer shall commence construction within 36 months from the date of
conveyance and complete construction within 60 months of commencement as
evidenced by an issuance of a final Certificate of Occupancy or Certificate of
Completion for the project. Additional time may be added to these time periods
if mutually agreed upon by the Developer and County in writing.
3. Developer shall develop the site in conformance with the design standards of
the Bayshore/Gateway Triangle Overlays, as defined in the current Collier
County Land Development Code.
4. In the event Developer is unable to meet the terms of this Declaration, such as
not meeting the deadlines, to include mutually agreed upon extensions, or
develops the Property in a way that is substantially different from the uses and
densities described herein, the County may exercise the right to purchase the
property for FIVE MILLION TWO HUNDRED THOUSAND and no/100 Dollars
($5,200,000).
15
5. The Covenants and Restrictions contained herein shall encumber the Preperfjr 81
and run with the land, and shall become effective to the Developer immediately
upon execution of this Declaration, and become effective with the public upon
recordation of this Declaration in Public Records of Collier County, Florida
regardless of whether or not the same are contained in any deed of conveyance
of the property and shall not be extinguished by foreclosure, bankruptcy, tax
sale or transfer.
6. Developer agrees to maintain the Property in compliance with local codes and in
a safe, decent and sanitary condition, which shall include repairs and
maintenance duties to the Property. Further, Developer agrees to comply with
all local, State and Federal requirements.
7. This Declaration sets forth herein regulating and restricting the use and
occupancy of the Property (i) shall be and are covenants running with the
Property, encumbering the Property for the term of this Declaration, and binding,
upon the Developer successors in title and all subsequent owners of the
Property, (ii) are not merely personal covenants of the Developer, and (iii) shall
bind the Developer and its respective successors and assigns during the term of
this Declaration.
8. Any and all requirements of the laws of the State of Florida to be satisfied in
order for the provisions of this Declaration to constitute deed restrictions and
covenants running with the land shall be deemed to be satisfied in full, and that
any requirements or privileges of estate are intended to be satisfied, or in the
alternate, that an equitable servitude has been created to ensure that these
restrictions run with the land.
9. The invalidity of any clause, part or provision of this Declaration shall not affect
the validity of the remaining portions thereof.
10.County shall have the right to enforce the terms, provisions and restrictions of
this Declaration. Any forbearance on behalf of the County to exercise its right of
enforcement hereunder shall not be deemed or construed to be a waiver of
either of their rights hereunder.
11.Developer shall develop uses that are consistent with those set-forth in the
Zoning Verification Letters outlined in Section 1 and comparable to the
conceptual site plan, documents attached hereto and made part of this
Agreement.
For the term of this Declaration which shall end at the final certificate of occupancy of all
improvements, each and every contract, deed, or other instrument hereafter executed
conveying the property or portion thereof shall expressly provide that such conveyance
is subject to this Declaration, provided, however, that these covenants contained herein
shall survive and be effective regardless of whether such contracts, deeds or other
conveyance instrument is subject to this Declaration.
(Signature on following page)
16
d
U
1421
IN WITNESS WHEREOF, the parties hereto have signed below.
AS TO DEVELOPER:
DATED:
FORTINO CONSTRUCTION AND
DEVELOPMENT LLC, a Florida limited
liability company
Witness(Signature)
Name: By:
(Print or Type) Anthony Fortino, as Managing Member
Witness(Signature)
Name:
(Print or Type)
STATE OF FLORIDA
COUNTY OF COLLIER
Sworn to and subscribed before me this day of , 2014 by Anthony
Fortino as Managing Member on behalf of FORTINO CONSTRUCTION AND DEVELOPMENT
LLC, a Florida limited liability company, who is personally known to me or has produced
as identification.
WITNESS my hand and official seal this day of , 2014.
(affix notarial seal)
(Signature of Notary Public)
(Print Name of Notary Public)
NOTARY PUBLIC
Serial/Commission:
My Commission Expires:
Approved as to form and legality:
fo&-r►NO Si GaATi)R4 RZQt.0 Q 17 AN 11415 ix1-1 1 fr.
be
Jennifer A. Belpedio Y7
Assistant County Attorney
17
1481
Co 1 er County
Growth Management Division — Planning & Regulation
Department of Planning &Zoning -Zoning Services Section
July 24, 2014
Mr. Robert J. Mulhere, FAICP
Hole Montes, Inc.
950 Encore Way
Naples, FL 34110
RE: Zoning Verification Letter (ZLTR-PL20140001467) regarding 1936, 2000, 2054 Davis
Boulevard and 1933, 1965 Tamiami Trail East [Folio Numbers: 77510240008, 77510280000,
77510320009, 77510200006, and 00388480009].
Dear Mr. Mulhere:
In your application that was submitted on July 2, 2014 and found sufficient on July 3, 2014, you
present questions pertaining to the above referenced property that is intended to be developed
utilizing the Mixed Use Project (MUP) approval process, as provided for in both the Bayshore
Drive Mixed Use Overlay District (BMUD) and the Gateway Triangle Mixed Use Overlay District
(GTMUD), and which may include a request for increased density by use of bonus pool units. In
order to plan for such a project,you have asked four questions; each is listed below and highlighted
in Bold, followed by a response from staff. But first, it is necessary to verify the subject site is
zoned C-4-GTMUD-MXD, General Commercial District within the Gateway Triangle Mixed Use
District Overlay, Mixed Use Subdistrict; is designated Urban, Urban Mixed Use District, Urban
Residential Subdistrict and is within the Bayshore/Gateway Triangle Redevelopment Overlay
(B/GTRO) — all on the Future Land Use Map and in the Future Land Use Element of the Growth
Management Plan; and, comprises a portion of the "'mini triangle' catalyst project site" as
identified on the B/GTRO Map.
1. Would a market rate residential project that is limited to persons aged 55 and older
(and not licensed as a care facility or assisted living facility (ALF) qualify as a
residential use and thus be permitted as the residential element of a mixed use project
(and comply with the LDC definition of a mixed Use Project?
A market rate residential development that is not licensed as a care facility or as an ALF is
deemed not to be subject to the Group Housing provisions as provided in Section 5.05.04 of
the Collier County Land Development Code (LDC) even if the residential units are limited
to persons aged 55 and older. Therefore, these dwelling units can be used to qualify as a
residential element of a mixed use project as defined in the LDC.
Department of Planning&Zoning•2800 North Horseshoe Drive•Naples,FL 34104•239-252-5603
. 1481
Mr. Mulhere
July 24, 2014
2. Assuming the project provides both commercial and residential uses, and is therefore a
Mixed Use Project, is the maximum allowable zoned height in the GTMUD-MXD
Overlay for a mixed use project 112 feet?
Based upon the provisions contained in Section 4.02.16.B.1.a — Table 7 which references
footnote #7, I have verified that a mixed use project (MUP) in the Mini-Triangle Area of the
GTMUD-MXD sub-district indicates that the maximum zoned building height is 112 feet.
3. Please confirm that the maximum density of 12 units per acre is permitted and can be
obtained from the bonus density pool. Is there a maximum number permitted for any
single project?
Based upon my review of Sections 2.05.01.A and 4.02.16.B.1.a (i) of the LDC, I can confirm
that the maximum density of the GTMUD-MXD is 12 units per acre. The maximum density is
comprised of density allowed by the underlying zoning district (when applicable) and
available density bonuses which is attained through the Mixed Use Project (MUP) process.
Since the underlying C-4 Zoning District doesn't have, as an allowable use, any residential
density, such density must be obtained from the bonus density pool. In addition,the maximum
number of dwelling units for any single project is 97 units as provided in the B/GTR Overlay,
as amended in 2013.
4. Please confirm whether or not a super majority vote of the Board of Zoning Appeals
(BZA)?
A Simple majority vote of the BZA is required to approve a MUP.
Please be advised that the information presented in this verification letter is based on the Collier
County LDC and/or Growth Management Plan in effect as of this date. It is possible that subsequent
amendment(s)to any of these documents could affect the validity of this verification letter. It is also
possible that development of the subject property could be affected by other issues not addressed in
this letter, such as, but not limited to, concurrency related to the provision of adequate public
facilities, environmental impact, and other requirements of the LDC or related ordinances.
This letter represents a determination of Planning & Zoning Department staff Should you disagree
with this determination, you may request an Official Interpretation by the Planning & Zoning
Director of the provisions of Section 10.02.02.F.I the LDC.
Should you require further information please do not hesitate to call me at (239)252-2463.
Sincerely,
RaymV. Bellows,Zoning Section Manager
Department of Planning and Zoning
cc: David Weeks, Growth Management Plan Manager,Department of Planning& Zoning
2
1481
Co -> - t i rnty
Growth Management Division
Planning &Zoning
October 22, 2014
Robert J. Mulhere, FAICP
Hole Montes, Inc.
950 Encore Way
Naples, FL 34110
Re: Zoning Verification Letter ZVL-PL20140002240; Certain Properties South of Davis
Boulevard, North of Tamiami Trail East and West of Commercial Drive, Collier County, Florida.
Dear Mr. Mulhere:
Thank you for your request for Zoning Verification. You requested verification of the statements
listed below in bold print, which are followed by Staffs responses.
The subject site is zoned General Commercial — Gateway Triangle Mixed Use Development —
Mixed Use District (C-4-GTMUD-MXD). The particular parcels are as follows:
1936 Davis Boulevard & 1911 Tamiami Trail East 77510240008
2054 Davis Boulevard 77510320009
2000 Davis Boulevard 77510280000
1991 Tamiami Trail East 00388440007
1933 Tamiami Trail East 77510200006
1808 Tamiami Trail East 00386840007
1965 Tamiami Trail East 00388480009
1705 Tamiami Trail East 00386880009
Please confirm that the subject site, as a mini-triangle "catalyst" site, may request
residential density of up to 12 units per gross acre and that said density is not required
to be derived from the Botanical Gardens Density Pool.
Citing the Future Land Use Element of the Collier County Growth Management Plan, it is
confirmed that:
• The subject site is within the Bayshore/Gateway Triangle Redevelopment Overlay
(B/GTRO) in the Future Land Use Element and on the Future Land Use Map of the
Growth Management Plan.
• The subject site is within the "mini triangle" of the B/GTRO.
• The B/GTRO provides that a mixed use development/project within the mini triangle is
eligible for 12 dwelling units per acre; the density is not derived from the B/GTRO's
density bonus pool; and, such development must comply with the design standards in
the GTMUD zoning overlay in the Collier County Land Development Code (LDC).
Planning&Zoning Department•2800 North Horseshoe Drive•Naples,FL 34104•239-252-2400•www.colliergov.net
1481
Please confirm that, pursuant to LDC Section 10.02.15.A.1.a, the required Mixed Use
Project(MUP) qualifies for administrative approval assuming the following conditions are
met:
i. The MUP complies with all site development standards as outlined in Section
4.02.16 of the LDC;
ii. The MUP only includes permitted uses as outlined by the Table of Uses for the
subdistrict in which it is located; and
iii. The MUP does not seek additional density through the Bonus Density Pool
provisions of LDC Section 10.02.15.C.
Section 10.02.15.A.1 of the LDC states that if the three conditions above (i — iii) are met, then
the Mixed Use Project (MUP) qualifies for administrative approval.
Please be advised that the information presented in this verification letter is based on the LDC
and/or Growth Management Plan in effect as of this date. It is possible that subsequent
amendment(s) to either of these documents could affect the validity of this verification letter. It
is also possible that development of the subject property could be affected by other issues not
addressed in this letter, such as, but not limited to, concurrency related to the provision of
adequate public facilities, environmental impact, and other requirements of the LDC or related
ordinances.
Should you require further information or have any questions, please do not hesitate to contact
me at (239) 252-4211 or fredreischl @colliergov.net.
Researched and prepared by: Reviewed by:
Fred Reischl, AICP, Principal Planner Ray ,?1,1. V. Bellows, Zoning Manager
Planning & Zoning Department Planning & Zoning Department
cc: Mike Bosi,AICP,Planning&Zoning Director
Jean Jourdan,Bayshore Gateway CRA
Anis Moxam,Addressing
1 4 B A
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