Agenda 10/28/2014 Item #14B110/28/2014 14.B.1.
EXECUTIVE SUMMARY
Recommendation that the Community Redevelopment Agency (CRA) review and accept an offer to
purchase CRA owned property in the Gateway mini - triangle by Fortino Construction & Development,
LLC and Assignee for construction of a mixed -use development project comprising residential, hotel and
rooftop restaurant and retail uses; authorize the CRA Chairman to execute all documents necessary to
facilitate the sale and authorize staff to deposit the funds received from the sale into the appropriate
account.
OBJECTIVE: To obtain approval by the Community Redevelopment Agency (Board) to sell CRA owned
Gateway Mini - Triangle property as identified in the Bayshore /Gateway Triangle Redevelopment Plan for
development of a mixed -use development.
CONSIDERATION: In 2009, the CRA Board authorized the purchase of 5.27 acres of commercial property in
the Gateway mini - triangle for the sum of $6,386,000. The property was purchased with proceeds from the Fifth
Third Bank loan. The subject site comprises six (6) parcels located in the center of the Gateway Mini - Triangle
comprising approximately 5.27 acres (Exhibit A). This area is identified in the CRA Redevelopment Plan as a
site for a catalyst redevelopment project. It is also identified in the Growth Management Plan (GMP) Future
Land Use Element (FLUE) Bayshore /Gateway Triangle Redevelopment Overlay as a catalyst project site "...
eligible for the maximum density of 12 units per acre, with development standards as contained in the Gateway
Triangle Mixed Use District zoning overlay..." (See Exhibit B).
As provided in the planning documents noted above and as shown on Exhibit C, the CRA's objective in
assembling these parcels in 2009 was to redevelop this site with a mixed -use project that serves as an
aesthetically pleasing gateway into the East /South Naples area and a catalyst for other redevelopment in the
triangle area. A contract setting forth the terms of the offer to purchase the property was provided by Fortino in
April of 2014 and a presentation to the CRA Advisory Board was made on May 6, 2014. The offer was
presented to the Board at the June 24, 2014 meeting. The CRA Board directed staff to publicly notice the site
for sale and bring back offers for their review and consideration. The site was publicly noticed in the Naples
Daily News on August 1, 2014, posted on the CRA's website and the Collier County Purchasing online bidding
system. The solicitation period ended on August 31, 2014. Fortino was the sole respondent.
Fortino and his Assignees desire to purchase and redevelop the site with a mixture of uses comprising
residential, a hotel including personal services, retail, restaurants and office uses. Fortino's conceptual plans
meet the intent of the CRA goals and objectives and is consistent with the Bayshore /Gateway Triangle
Redevelopment Plan. A Purchase Agreement setting forth the terms of the offer and purchase price of 5,200,000
million is attached hereto for review. The conceptual plan was presented by the developers to the CRA
Advisory Board at the September 9, 2014 meeting. The advisory board voted unanimously to forward the
Purchase Agreement to the CRA with a recommendation of approval.
Additionally, two key parcels instrumental in redeveloping this site that are located to the west of the CRA's
site is under contract by Fortino Construction & Development, LLC. It is the opinion of staff and the CRA
Advisory Board that to make a redevelopment impact to the min - triangle it is instrumental the two key parcels
under contract by Fortino Construction & Development, LLC are integrated into the project. Conceptual
renderings of the proposed mixed use development presented by Fortino comprising a beautiful water feature,
hotel and rooftop restaurants, retail uses and a residential component is attached hereto. (See Exhibit D).
CRA staff has worked with the County's Real Property Management Department and the County's Attorney's
')ffice to prepare all documents and worked with the County's Finance Department. An appraisal of the site was
conducted by the County's Real Property Management Department in April of 2014, which provided for an
estimated market value of the site to be $5,212,808.00, estimated land value of $4,591,220 and an estimated
income approach to market value of $5,178,782.
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The site is improved with four buildings and a cell tower. The properties generate a yearly rental income of
approximately $301,000.00+ to the CRA and are not exempt from property taxes and therefore on the tax roll.
Three of the four buildings have maintained 100% occupancy and the leases are scheduled to expire in January
of 2015. One tenant has relocated their business (Budget Rent A CAR) the premises and another tenant has
given notice they have purchased a new building and will vacate in 6 months (Auto Pride). A reduction in
CRA rental income of approximately $213,700 a year in income. The fourth lease is scheduled to expire in
2016. The CRA is currently working with the Real Property Management Department's Leasing Specialist and
the County Attorney's Office to review the termination provisions of the leases.
The CRA's 17+ acres site located on Bayshore Drive is currently listed for sale with Premier Plus Realty
pursuant to County Contract 13 -6099. Premier Plus Realty is the same company who brought the initial offer
from Fortino Construction & Development, LLC to the CRA to purchase the Gateway mini - triangle site.
Premier Plus Realty is requesting commissions in the amount of 6% ($312,000) be paid to compensate them for
their diligent services related to this transaction.
FISCAL IMPACT: The loan incurred by the CRA for the purchase of redevelopment property has principal
outstanding at 9/30/2014 of approximately $6,638,433. A final balloon payment of approximately $4,750,000
on the principal balance is due on June 1, 2018. The net proceeds of the proposed sale will be used to pre -pay
loan principal. If the sale proceeds, the principal reduction will effectively make the loan fully amortizing by
the end of the loan term. The principal reduction at current interest rates will result in interest expense savings
of approximately $190,000 in the first year.
The primary CRA revenue source is Tax Increment Financing. That means that the CRA will realize TIF
revenue gains from the marginal growth in taxable value within the CRA. The CRA properties and the two
private properties presently have a taxable value $3,426,547. It is outside of staff's area of expertise to quantify
potential taxable value increases or when such increases might be reflected on the tax roll. In their proposal, the
Developer offers the following statement: "We anticipate that the County could potentially realize long term
increased benefit of $46,000,000.00 as a taxable value on the property we will develop."
Perhaps the most important fiscal consideration is weighing the benefit of achieving the CRA's redevelopment
goals against the cost of acquiring and holding the properties that are the catalyst for the proposed
redevelopment. The following table provides a financial summary, based on available information, of the
acquisition and holding costs versus the subject offer.
Description Date Amount
CRA Land Purchase 9/16/09 (6,386,000)
Loan Interest Expense (1,033,546)
Sales Commission (312,000)
Land Cost & Commission on Sale
Rent /Lease Revenue (FYI 0 - FY14)
Purchase Offer
Total Proceeds and Rent Receipts
Gain /(Loss) on Sale
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(7,731,546)
1,493,335
5,200,000
6,693,335
(1,038,211)
10/28/2014 14. B.1.
LEGAL CONSIDERATIONS: The Agreement for Sale and Purchase contains terms that limit transfer of the
property as well as ensure timely completion of the project as depicted in the conceptual site plans presented by
Fortino Construction and Development, LLC. Accordingly, this item is approved for form and legality and
•equires a majority vote for Board approval. — JAB
GROWTH MANAGEMENT: There is no impact on the County's long -range planning effort.
RECOMMENDATION: Recommendation that the Community Redevelopment Agency (CRA) review and
accept an offer to purchase CRA owned property in the Gateway mini - triangle by Fortino Construction &
Development, LLC and Assignee for construction of a mixed -use development project comprising residential,
hotel and rooftop restaurant and retail uses; authorize the CRA Chairman to execute all documents necessary to
facilitate the sale and authorize staff to deposit the funds received from the sale into the appropriate account.
PREPARED BY: Jean Jourdan, Interim Director
Bayshore /Gateway Triangle CRA
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COLLIER COUNTY
Board of County Commissioners
Item Number: 14.14.13.14.6.1.
Item Summary: Recommendation that the Community Redevelopment Agency (CRA)
review and accept an offer to purchase CRA owned property in the Gateway mini - triangle by
Fortino Construction & Development, LLC and Assignee for construction of a mixed -use
development project comprising residential, hotel and rooftop restaurant and retail uses;
authorize the CRA Chairman to execute all documents necessary to facilitate the sale and
authorize staff to deposit the funds received from the sale into the appropriate account.
Meeting Date: 10/28/2014
Prepared By
Name: BrockMaryJo
Title: Executive Secretary to County Manager, County Managers Office
10/22/2014 4:40:12 PM
Submitted by
Title: Executive Secretary to County Manager, County Managers Office
Name: BrockMaryJo
10/22/2014 4:40:13 PM
Approved By
Name: OchsLeo
Title: County Manager, County Managers Office
Date: 10/22/2014 5:59:43 PM
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BAYSHORE CRA
Folio Number: 00388440007, 00388480009, 77510200006,
77510280000,77510320009 & 77510240008
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, whose mailing address is 3299 Tamiami
Trail E., Naples, FL 34112 (hereinafter referred to as "Seller "), and FORTINO
CONSTRUCTION AND DEVELOPMENT, LLC., a Florida limited liability company,
whose mailing address is PO Box 10102, Naples, Florida 34101, (hereinafter referred to
as "Purchaser").
WITNESSETH
WHEREAS, Seller is the owner of those certain parcels 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:
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 ".
11. 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 an
additional deposit of ONE HUNDRED THOUSAND and no /100 Dollars by
November 30, 2014. The deposit will be held in escrow by Gray Robinson,
( "Escrow Agent ") subject to clearance. Escrow Agent's address is 8889, Pelican
Bay Blvd, Ste, 400 Naples, FL 34108; Phone: (239) 598 -3601.
111. CLOSING
3.01 The Closing (THE "CLOSING DATE ", "DATE OF CLOSING ", OR
"CLOSING ") of the transaction shall be held on or before one hundred and fifty
(150) 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:
(a) The lien for current taxes and assessments.
(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 title evidence. Purchaser, at their own expense, will be
responsible for obtaining their own title insurance commitment and Owner's
Policy of Title Insurance. At the Closing, the Purchaser, shall cause to be
delivered to the Seller the following:
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3.013 At the Closing, the Purchaser, shall cause to be delivered the Seller the
following:
3.0131 A negotiable instrument, by the 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.
3.07 At time of closing Seller shall assign, convey grant and transfer, all its right,
title, interest in and to any existing Leases for the unexpired balance of the term of
the leases. Any deposits being held by the Seller shall be paid or otherwise
credited 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,
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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 thirty (30) 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
successors, 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 ".
4.015 (a) 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
and the Conceptual Site Plan as set forth in Exhibit "D hereto without the prior
written consent of the Seller, which consent the Seller shall not unreasonably
withhold or delay.
(b) If the Seller does not object to any such proposed sale, conveyance,
assignment, transfer or disposition by written notice of such objection delivered
to the Purchaser within twenty (20) days after receipt from the Purchaser of a
written request for approval thereof, the proposed sale, conveyance,
assignment, transfer or disposition shall be deemed consented to and
approved by the Seller as of the expiration of such twenty (20) day period
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The Seller reserves the right to unilaterally deny the sale, conveyance,
assignment or transfer to a third party. However, the Seller and Purchaser
may further negotiate the terms of the transfer so that the Purchaser and Seller
share any profits received by the Purchaser from the sale, conveyance,
assignment or transfer of the Property.
4.016 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 pursuant to subsection (1) above before
becoming effective. In the case of such a sale, conveyance, assignment,
transfer or disposition, the Purchaser shall give prior written notice thereof to
the Seller prior to the occurrence of such sale, conveyance, assignment,
transfer or disposition.
V. INSPECTION PERIOD
5.01 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.
5.02 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,
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.
5.03 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
5
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Purchaser no less than twenty four (24) hours prior to said inspection of the
Property.
VI. INSPECTION
6.01 Seller acknowledges that the Purchaser, or its authorized agents, shall have
the right to inspect the Property at any time prior to the Closing.
VII. POSSESSION
7.01 Purchaser shall be entitled to full possession of the Property at Closing.
VIII, PRORATIONS
8.01 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's 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.
IX. TERMINATION AND REMEDIES
9.01 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, including the right to seek specific performance of this Agreement.
9.02 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
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 123.01, (Real Estate Brokers), 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.
9.03 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
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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.
9.04 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.
9.05 Purchaser is unable to meet the terms of this Agreement the Seller may
exercise the right to purchase the Property back at a price equal to the Purchase
Price under the terms of this agreement.
X. SELLER'S AND PURCHASER'S REPRESENTATIONS AND WARRANTIES
10.01 Seller and Purchaser represent and warrant the following:
10.011 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.
10.012 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.
10.013 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.
10.014 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
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.
10.015 No party or person other than Purchaser has any right or option to
acquire the Property or any portion thereof.
10.016 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
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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.
10.019 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, leasing,
employment, service or other contracts affecting the Property.
10.020 Seller has no knowledge that there are any suits, actions or arbitration,
bond issuances or proposals therefore, 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.
10.021 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.
10.022 At the Closing, Seller shall deliver to Purchaser a statement (hereinafter
called the "Closing Representative Statement ") reasserting the foregoing
representations as of the Date of Closing, which provisions shall survive the
Closing.
10.023 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.
XI. NOTICES
11.01 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:
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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 Seller: Anthony Fortino, Managing Member
Fortino Construction and Development, LLC.
PO Box 10102
Naples, Florida 34101
With a copy to:
11.02 The addressees and addresses
changed by either party by giving written
in the manner provided herein. For the
addressees only, unless and until su
addressee and respective address state
effect for all purposes.
XII. REAL ESTATE BROKERS
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for the purpose of this Article may be
notice of such change to the other party
purpose of changing such addresses or
:h written notice is received, the last
J herein shall be deemed to continue in
12.01 Brokerage commissions in the amount of THREE HUNDRED AND
TWELEVE THOUSAND and no /100 Dollars ($312,000) shall be paid from the
Seller's proceeds at the time of closing pursuant to County Contract 13 -6099.
XIII. MISCELLANEOUS
13.01 This Agreement may be executed in any manner of counterparts which
together shall constitute the agreement of the parties.
13.02 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.
13.03 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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13.04 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.
13.05 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.
13.06 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.
13.07 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.
13.08 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.
13.09 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.)
13.10 This Agreement is governed and construed in accordance with the laws of
the State of Florida.
XIV, ENTIRE AGREEMENT
14.01 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.
XV. RESTRICTIONS ON USE
15.01 The Property shall be restricted to those uses allowed by the Gateway
Triangle Mixed Use District Overlay and as otherwise described in Exhibit "B" hereto
io
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15.02 By approval of this Agreement, the Seller has approved the Consultant's
Conceptual Plans set forth in Exhibit "C" hereto and the Conceptual Site Plan as set
forth in Exhibit "D" hereto. A final site development plan must be submitted to the CRA
Executive Director prior to submittal of building permit application in accordance with
County procedure and development regulations. Within twenty (20) days of receipt, the
CRA Executive Director shall review the final site development plan for compliance with
this Agreement and in writing either recommend approval or disapproval to the County.
IN WITNESS WHEREOF, the parties hereto have signed below.
Date Property conveyance approved by BCC:
AS TO SELLER:
DATED:
ATTEST: COLLIER COUNTY COMMUNITY
DWIGHT E. BROCK, Clerk REDEVELOPMENT AGENCY
M
, Deputy Clerk
Approved as to form and legality:
Jennifer A. Belpedio
Assistant County Attorney
AS TO PURCHASER:
DATED:
Witness (Signature)
Name:
(Print or Type)
Witness (Signature)
Name:
(Print or Type)
DONNA FIALA, Chairman
FORTINO CONSTRUCTION AND
DEVELOPMENT LLC, a Florida limited
liability company
an
Anthony Fortino, as Managing Member
I
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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 degrees 29'50" from Northwesterly to Southwesterly and run
4
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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 I/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'l 1.6", 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'l I" 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 are 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'l 6" 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 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
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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 'A 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.
N
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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"
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:
Fortino Construction and Development, LLC, its successors or assigns
agrees to construct a Mixed Use Project that is acceptable to and
approved by the Collier County Community Redevelopment Agency
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.
2. Fortino Construction and Development LLC, shall commence
construction within 36 months from the date of conveyance and complete
construction within 60 months of commencement as evidenced by a
issuance of a final Certificate of Occupancy or Certificate of Completion
for the project. In the event of an economic downturn resulting in a
recession, these time periods shall be tolled during the period of the
recession. Additional time necessary to recover from an act of God, such
as a hurricane, shall be added to these time periods as mutually agreed
by Fortino Construction and Development LLC and Collier County
3. Fortino Construction and Development shall develop the site in
conformance with the design standards of the Bays ho re/Gateway
Triangle Overlays.
4. In the event Fortino Construction and Development, LLC, is unable to
meet the terms of this Declaration, the County may exercise the right to
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10/28/2014 14. B.1.
purchase the property for FIVE MILLION TWO HUNDRED THOUSAND
and no /100 Dollars ($5,200,000)
5. Fortino Construction and Development LLC, 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, Fortino Construction and Development LLC
agrees to comply with all local, State and Federal requirements.
6. 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 Recipient's successors in title and all subsequent
owners of the Property, (ii) are not merely personal covenants of the
Recipient, and (iii) shall bind the Recipient and its respective successors
and assigns during the term of this Declaration.
7. 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.
8. The invalidity of any clause, part or provision of this Declaration shall not
affect the validity of the remaining portions thereof.
9. 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.
10. Fortino Construction and Development, LLC shall not permit or otherwise
allow waste or impairment of the Property.
11. Fortino Construction and Development, LLC shall develop uses that are
consistent with those set -forth in the Zoning Verification Letter and
comparable to the conceptual site plan 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
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10/28/2014 14.B.1.
regardless of whether such contracts, deeds or other conveyance instrument is low
subject to this Declaration.
IN WITNESS WHEREOF, the parties hereto have signed below.
AS TO PURCHASER:
DATED:
Witness (Signature)
Name:
(Print or Type)
Member
Witness (Signature)
Name:
(Print or Type)
STATE OF FLORIDA
COUNTY OF COLLIER
FORTINO CONSTRUCTION AND
DEVELOPMENT LLC, a Florida
limited liability company
By:
Anthony Fortino, as Managing
Sworn to and subscribed before me this day of , 2014 by
Anthony Fortino as Managing 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:
Jennifer A. Belpedio, Assistant County Attorney
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AND GATEWAY TMAMME REDEVELOPMENT PLAN
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