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Agenda 07/24/2012 Item #16A207/24/2012 Item 16.A.20. EXECUTIVE SUMMARY Recommendation to approve a Developer Agreement between SFI Naples Reserve LLC ( "Developer ") and Collier County ( "County ") to advance funding for improvements to US- 41 from Collier Boulevard to San Marco Road. This item is a companion to Item 17J. OBJECTIVE: To obtain BCC approval of a Developer Agreement ( "Agreement ") to provide funding for improvements to US -41 from Collier Boulevard to San Marco Road (CR -92) ( "Road Project "). CONSIDERATION: This Agreement is a companion item to the Naples Reserve Planned Unit Development (PUD) Amendment. The Developer agrees to prepay road impact fees totaling $4,000,000 in two installments of $2,000,000 each. The first installment shall be paid on January 15, 2013 and the second on January 15, 2014. The surety, if paid in cash shall be escrowed by the Clerk of Courts and then deposited into a County project account at the request of the County Manager per the installment schedule above. The installment timing may be adjusted in order to align with the County's or the Florida Department of Transportation's (FDOT's) construction schedule for phases of the Road Project. The intersection phase of this Road Project is scheduled to commence in 2013 and the main line phase is approaching 100% design completion with no right -of -way required and is presently unfunded. US -41 east of Collier Boulevard is identified as a tier 1 regional freight corridor and is adopted in the Collier County Metropolitan Planning Organization's (MPO) 2035 cost feasible and needs plan. The agreement stipulates that a Letter of Credit or cash will be provided to the County within 30 days of approval of this Agreement. The upfront payment of $4,000,000 will vest the Naples Reserve PUD for 1,154 dwelling units as authorized in the original PUD. In order to further increase funding for the project, the Developer will be required to pay all road impact fees to obtain building permits for the first 300 dwelling units without using the credits obtained from the prepayment as outlined above. Commencing with the 301St dwelling unit, the Developer may apply the prepaid road impact fees toward the road impact fees due for building permits until the prepaid amount of $4,000,000 is utilized by the Developer. The prepayment represents approximately two thirds of the currently projected impact fees due for the entire development. The County is willing to enter into this Agreement in order to accelerate improvements to the Road Project. The Developer and the County will coordinate their best efforts to seek additional funding from other developments, FDOT and the MPO in order to fully fund the Road Project or phases of the Road Project. These funds shall be deposited per the installment schedule into a project account specifically for these improvements. FISCAL IMPACT: The County would receive payment of advanced impact fees, guaranteed by surety, in the amount of $4,000,000. GROWTH MANAGEMENT IMPACT: The improvements identified at the intersection of US41 and Collier Boulevard and east on US -41 are consistent with the Long Range Transportation Plan and Growth Management Plan. Packet Page -1736- 7/24/2012 Item 16.A.20. LEGAL CONSIDERATIONS: As described below, this Developer Agreement has a new wrinkle. Sec. 74- 302(h) of the Collier County Consolidated Impact Fee Ordinance, as amended by Ord. 2011 -20 provides as follows: Payment of road impact fees to obtain a certificate of adequate public facilities. (1) A certificate of public facility adequacy (COA) shall be issued concurrent with the approval of the next to occur final local development order. At the time a certificate of public facility adequacy is issued, thirty -three percent (33 %) of the estimated payment will be due and deposited into the applicable impact fee trust fund. The funds will then be immediately available for appropriation by the Board of County Commissioners for transportation capital improvements and are non - refundable. Final calculation of impact fees due will be based on the intensity of development actually permitted for construction and the impact fee schedule in effect at the time of the building permit(s) application submittal, such that additional impact fees may be due prior to issuance of the building permit(s). Instead of paying into the Road Impact Trust Fund Account 33% of the estimated Road Impact Fees or $2,190,762.26, the parties agreed that, subject to Board approval, the Developer would give Collier County two letters of credit in the amount of $4,000,000. Developer's counsel and the County Attorney then discussed an alternative whereby instead of securing two letters of credit, this entire sum would be deposited with the Clerk in the form of an escrow, to be released to the County on written request by the County Manager on the same basis and in the same manner as the Board has authorized the County Manager to demand payment on a letter of credit. The benefit to the parties of depositing this sum with the Clerk (which we have never done before), is that Developer saves the fee in securing the letters of credit (typically 1% of the total sum), and that any interest generated by these funds would ultimately inure to the benefit of Collier County (in this initial instance the interest would go to the Clerk as income, to be potentially returned to the County as part of any surplus income generated by the Clerk). The procedure for this was established with the assistance of the Clerk's Office, with the understanding that if this procedure proved beneficial to all parties, the County would consider formalizing this alternative in the Impact Fee Ordinance at a later date. With that said, this Agreement was drafted by the County Attorney, is legally sufficient, and requires majority vote for approval. -JAK RECOMMENDATION: That the Board of County Commissioners (BCC) approve the Developer Agreement to provide funding for improvements to the Road Project and authorize the Chairman to execute the Agreement. Prepared By: Nick Casalanguida, Growth Management Administrator Attachments: 1) DCA; 2) Location Map Packet Page -1737- 7/24/2012 Item 16.A.20. COLLIER COUNTY Board of County Commissioners Item Number: 16.A.20. Item Summary: Recommendation to approve a Developer Agreement between SFI Naples Reserve LLC ( "Developer ") and Collier County ( "County ") to advance funding for improvements to US -41 from Collier Boulevard to San Marco Road. This item is a companion to Item 17J. Meeting Date: 7/24/2012 Prepared By Name: BeardLaurie Title: Planner,Transportation Planning 6/26/2012 10:37:58 AM Submitted by Title: Deputy Administrator - GMD,Business Management & Budget Office Name: CasalanguidaNick 6/26/2012 10:38:00 AM Approved By Name: PuigJudy Title: Operations Analyst, GMD P &R Date: 6/26/2012 10:43:42 AM Name: JarviReed Title: Transportation Planning Manager, GMD Date: 6/26/2012 1:44:11 PM Name: PattersonAmy Title: Manager - Impact Fees & EDC,Business Management & Date: 6/28/2012 11:05:26 AM Name: MarcellaJeanne Title: Executive Secretary,Transportation Planning Date: 6/28/2012 2:34:27 PM Packet Page -1738- Name: UsherSusan Title: Management /Budget Analyst, Senior,Office of Manage Date: 7/12/2012 11:06:05 AM Name: KlatzkowJeff Title: County Attorney Date: 7/12/2012 11:41:46 AM Name: OchsLeo Title: County Manager Date: 7/12/2012 2:11:22 PM Packet Page -1739- 7/24/2012 Item 16.A.20. 7/24/2012 Item 16.A.20. DEVELOPER AGREEMENT NAPLES RESERVE THIS DEVELOPER AGREEMENT (hereinafter referred to as the "Agreement ") is made and entered into this of , 2012, by and among SFI NAPLES RESERVE, LLC, a foreign limited liability company (hereinafter referred to as the "Developer ") and COLLIER COUNTY, FLORIDA, a political subdivision of the State of Florida (hereinafter referred to as "County "). All capitalized terms not defined herein shall have the same meaning as set forth in the Collier County Consolidated Impact Fee Ordinance, Ordinance No. 2001 -13, as amended. RECITALS: WHEREAS, the Developer is seeking to amend the Naples Reserve Golf Club PUD, Ordinance No. 99-42, as amended by Ordinance No. 07 -71; and WHEREAS, the parties wish to enter into this Developer Agreement as a companion document to the amended PUD for the limited purpose of defining certain transportation impact fee issues, as more particularly set forth below; and WHEREAS, the County is willing to enter into this Agreement in order to assist in the improvement of the US 41 from Collier Blvd. to San Marco Road (CR 92) ( "Road Project "). The intersection phase of this Road Project is scheduled to commence in 2013 and the remaining phases are approaching 100% complete road plans; and WHEREAS, the Transportation Administrator of the County has recommended to the Board of County Commissioners that the Road Project set forth in this Agreement is in conformity with the contemplated improvements and additions to the County's transportation network; and WHEREAS, after reasoned consideration by the Board of County Commissioners, the Board finds and reaffirms that: a. The Road Project is in conformity with the contemplated improvements and additions to the County's transportation system; b. The Road Project, viewed in conjunction with other existing or other proposed plans, including those from other developers, will not adversely impact the cash flow or liquidity of the County's road impact fee trust accounts in such a way as to frustrate or interfere with other planned or ongoing growth - necessitated capital improvements and additions to the County's transportation system; and C. The Road Project is consistent with both the public interest and with the comprehensive plan, the Long Range Transportation Plan and complies with the requirements of the Collier County Consolidated Impact Fee Ordinance. Packet Page -1740- WITNESSETH NOW, THEREFORE, in consideration valuable consideration exchanged amongst the contained herein, the parties agree as follows: 7/24/2012 Item 16.A.20. of Ten Dollars (10.00) and other good and parties, and in consideration of the covenants 1. All of the above RECITALS are true and correct and are hereby expressly incorporated herein by reference as if set forth fully below. 2. Developer agrees to prepay road impact fees totaling $4,000,000 in two installments of $2,000,000 each. Separate installments shall be paid to Collier County on January 15, 2013 and January 15, 2014. By written agreement signed by both parties, the installment timing may be adjusted in order to align with the County's construction schedule for phases of the Road Project. The intersection phase of this Road Project is scheduled to commence in 2013 and the remaining phases are approaching 100% complete road plans. 3. To assure payment, no later than 30 days following approval of the PUD amendment, Developer shall provide County with a Letter of Credit in the form set forth in Exhibit A. The Letter of Credit must be by a financial institution acceptable to Collier County. As an alternative, the Developer can pay the sum of $4,000,000 to the Clerk of Courts, with any interest generated accruing to the Clerk. The Clerk shall release the funds to the County on receipt of a document purportedly signed by the County Manager certifying that the installment is due on the date and in the amount specified in the Developer Agreement, or as adjusted by written agreement signed by both parties. Developer agrees that any claim by Developer resulting from or in any manner concerning the release of these escrowed funds will be against the Collier County Board of County Commissioners only, and will not involve the Clerk. 4. On June 14, 2011, the Board adopted Ordinance No. 2011 -20, which amended the Consolidated Impact Fee Ordinance to provide that a Certificate of Public Facility Adequacy ( "Certificate ") will be issued upon payment of thirty -three percent of the estimated road impact fees. Payment of $4,000,000 in Road Impact Fees surpasses thirty -three percent of the estimated road impact fees based on current rates for the 1,154 dwelling units authorized in the amended PUD document. Upon providing the letter of credit or depositing the money with the Clerk of Courts, Developer shall receive a Certificate vesting the Development to construct the approved 1,154 dwelling units for the purposes of meeting the County's Transportation Concurrency requirements. 5. The following conditions shall apply; A. Developer will be required to pay all road impact fees to obtain building permits for the first 300 dwelling units. B. Commencing with the 301St dwelling unit, the Developer may apply the prepaid road impact fees toward the road impact fees due for building permits until the prepaid amount of $4,000,000 is utilized by the Developer. Packet Page -1741- 7/24/2012 Item 16.A.20. C. Once the prepaid amount of $4,000,000 is fully exercised, the Developer will pay any remaining applicable road impact fees to obtain further building permits. 6. The credit for Road Impact Fees identified herein shall run with the Development and shall be reduced by the entire amount of each Road Impact Fee due for each Building Permit issued thereon until the Development project is either completed or the credits are exhausted or otherwise no longer available, or have been assigned by operation of or pursuant to an assignment agreement with County. The foregoing reduction in the Road Impact Fees shall be calculated based on the amount of the Road Impact Fees in effect at the time the Building Permit is issued. The credits set forth herein shall be applied solely to Road Impact Fees, and shall not offset, diminish or reduce any other charges, fees or other Impact Fees for which Developer, its successors and assigns are responsible in connection with the development of their lands. It is expressly understood that the Impact Fee Credits will be utilized in the order in which the Building Permits are reviewed by the Impact Fee Administration, irrespective of whether Developer assigns all or part of the Development. Final calculation of the remaining road and other impact fees due will be based on the impact fee schedule in effect at the time of the submittal of the building permits and shall be paid in full prior to issuance of each building permit. 7. In the event that upon build -out of the Development the Road Impact Fee Credits are still unspent, the remaining balance of such estimated fees may, at Developer's election (1) be transferred to another approved project within the same, or adjacent transportation impact fee district, provided any vested entitlements associated with the unspent and transferred impact fee credits are relinquished and the Certificate is modified to delete those entitlements, or (2) be reimbursed to Developer. Any future reimbursement for excess credits shall come from future receipts by the County of Road Impact Fees, and shall be paid over a period of five years from the date of completion of the Development as determined by the County, subject to annual appropriation by the County. Leeal Matters 8. This Agreement sr,_1 not be constructed or characterized as a development agreement under the Florida Lc -al Gotwrnment Development Agreement Act. 9. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to. all successors in interest to the parties to this Agreement. 10. Developer ac nov- :ledges that the failure of this Agreement to address any permit, condition, term or restriction shall not relieve either the applicant or owner or its successors or assigns, of the necessity of complying with any law, ordinance rule or regulation governing said permitting requirements, conditions, terms or restrict s ns. 11. In the event state or federal laws are enacted after the execution of this Agreement, which are applicable to and preclude in whole or in part the parties' compliance with the terms of this Agreement, then in such event this Agreement shall be modified or revoked as is necessary to comply with such laws, in a many which best reflects the intent of this Agreement. Packet Page -1742- 7/24/2012 Item 16.A.20 12. Developer shall execute this Agreement prior to it being submitted for approval by the Board of County Commissioners, This Agreement shall be recorded by the County in the Official Records of Collier County, Florida, within fourteen (14) days after the Effective Date. Developers shall pay all costs of recording this Agreement. The County shall provide a copy of the recorded document to the Developers upon request. 13. In the event of any dispute under this Agreement, the parties shall attempt to resolve such dispute first by means of the County's then - current Alternative Dispute Resolution Procedure, if any. Following the conclusion of such procedure, if any, either party may file an action for injunctive relief in the Circuit Court of Collier County to enforce the terms of this Agreement, and remedy being cumulative with any and all other remedies available to the parties for the enforcement of the Agreement. 14. Except as otherwise provided herein, this Agreement shall only be amended by mutual written consent of the parties hereto or by their successors in interest. All notices and other communications required or permitted hereunder (including County's option) shall be in writing and shall be sent by Certified Mail, return receipt requested, or by a nationally recognized overnight delivery service, and addressed as follows: To County: Collier County Manager's Office 3299 Tainiam.i 'rra.il East. Suite 202 Naples, FL 341.12 -5746 To Developer: SFI Naples Reserve LLC c/o Istar Financial 1114 Avenue of the Americas 39th Floor New York, NY 10036 15. This Agreement, together with the amended PUD, constitutes the entire agreement between the parties with respect to the activities noted herein and supersedes and takes the place of any and all previous agreements entered into between the parties hereto relating to the transactions contemplated herein. All prior representations, undertakings, and agreements by or between the parties hereto with respect to the subject matter of this Agreement are merged into, and expressed in, this Agreement, and any and all prior representations, undertakings, and agreements by and between such parties with respect thereto hereby are canceled. 16. Nothing contained herein shall be deemed or construed to create between or among any of the parties any joint venture or partnership nor otherwise grant to one another the right, authority or power to bind any other party hereto to any agreement whatsoever. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK SIGNATURE PAGE TO FOLLOW Packet Page -1743- 7/24/2012 Item 16.A.20. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their appropriate officials, as of the date first above written. Attest: BOARD OF COUNTY COMMISSIONERS DWIGHT E. BROCK, Clerk COLLIER COUNTY, FLORIDA , Deputy Clerk AS TO DEVELOPER: Signed, sealed and delivered in the presence of Signature Printed Name Signature Printed Name Bv: FRED COYLE, Chairman SFI NAPLES RESERVE LLC a foreign limited liability company By: Name: Title: STATE OF FLORIDA COUNTY OF COLLIER The foregoing instrument was acknowledged before me this day of 2012, by , as of SFI Naples Reserve LLC, a foreign limited liability company, who is personally known to me or has produced- as identification. Approjed4 I form and legal s f jc y. _, Jeffrey fkow, County ey Notary Public My Commission Expires: Packet Page -1744- Packet Page -1745- 7/24/2012 Item 16.A.20.