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Agenda 09/13/2011 Item #16A 59/13/2011 Item 16.A.5. EXECUTIVE SUMMARY This is a recommendation to approve a Settlement Agreement and Release relative to the subdivision improvements associated.with the final plats of Sapphire Lakes Units 4A, 4B and 4C. OBJECTIVE: To approve a, Settlement Agreement and Release relative to the subdivision improvements associated with Sapphire Lakes Units 4A, 4B and 4C. CONSIDERATIONS: 1. On July 29, 1997, the Board of County Commissioners approved the plat of Sapphire Lakes Unit 4A, on August 26, 1997, the Board of County Commissioners approved the, plats for Sapphire Lakes Units 4B and 4C. On March 2, 1999, the developer applied for and received preliminary acceptance of, the required subdivision improvements. The developer has never requested an inspection for final acceptance of the improvements. Since 2002, County staff has requested in writing that the developer apply for final acceptance, and meetings with the engineering staff and representatives from the County Attorney's office with the developer have not succeeded in the developer applying for final acceptance. The improvements associated with Sapphire Lakes Units 4A, 4B and 4C were securer! with Construction, Maintenance and Escrow Agreements for each Unit. Sapphire- Lakes Condominium Association and Fifth Third Bank have agreed on a settlement of the funds to be released directly to the Association. By virtue of the Settlement Agreement and Releases, the County and Bank will have no future liability with respect to the subdivision improvements. The improvements are in fact substantially complete and a punch list was generated by the inspections staff. A copy of, the punch list is attached. The roadway and drainage improvements are private and are maintained by the Condominium Association. 2. There is currently a Code Enforcement case against this development for failing to provide the required annual PUD monitoring reports. This Release and Settlement will have no effect on the Code Enforcement Case and the Association is responsible for submitting the required PUD monitoring reports. FISCAL IMPACT: There is no fiscal impact to the County. GR,Q MA,NAGO ENT IMPACT• There is no growth management impact associated with this approval. LEGAL C0NS_lDgRAT10NS: The County Attorney's Office has reviewed and approved the Settlement Agreement and. Release for legal sufficiency. The Agreement provides that Fifth. Third will pay the County $80,000 in full satisfaction of all claims. Staff believes • that this is more than sufficient to complete the outstanding subdivision improvements. The check is being held in escrow by the Packet Page -1277- 9/13/2011 item 16.A.5. Clerk's Office pending Board approval. The HOA has approved this settlement, which approval is included as part of the back -up materials. This item requires a majority vote for approval. STW RECOMMENDATION: That the Board of County Commissioners approve the Settlement Agreement and Release and authorize the-Chairman to execute the- Settlement Agreement and Release. Prepared by: John Houidsworth, Senior Site Plan Reviewer, Land Development Services /Engineering Review, Growth Management Division, Planning and Regulation Attachments: 1) Location Map 2) Settlement Agreement 3) Release 4) Punch list 5) Plat maps 6) Letters to developer Packet Page - 1278 - 9/13/2011 Item 16.A.5. n COLLIER COUNTY Board of County Commissioners item Number: 16.A.5. Item Summary: This item requires that ex parte disclosure be provided by Commission members. Should a hearing be held on this item, all participants are required to be sworn in. This is a recommendation to approve a Settlement Agreement and Release relative to the subdivision improvements associated with the final plats of Sapphire Lakes Units 4A, 48 and 4C. Meeting Date: 9/13/2011 Prepared By Name: HouldsworthTohn Title: Site Plans Reviewer, Senior,Engneering & Environm 6/13/2011 12 :28:37 PM Submitted by Title: Site Plans Reviewer, Senior,Engineering & Environm Name: HouldsworthJohn 6/13/2011.12:28:38 PM Approved By Name: McKennaTack Title: Manager - Engineering Review Services Engineering & Environmental Services Date: 7/11/2011 8 :16 :10 AM Name: PuigJudy Title: Operations Analyst, CDES Date: 7/11/2011` 8:55:08 A114 Name: BeardLaurie Title: Planner,Transportation Planning Date: 7/11/2011 1:25 :07 PM Name: LorenzWilliam - Title: Director - CDES Engineering Services,Comprehensive �1 Date: 8/15/20114:29:03 PM Packet Page -1279 - n Name: MarcellaJeanne Title: Executive Secretary,Transportation Planning Date: 8/16/2011 7:47:1.3 AM Name: FederNorman Title: Administrator -Growth Management Div,Transportati Date: 8/16/2011 1 :54:08 PM Name: WilliamsSteven Title. Assistant County Auorney,County Attorney Date: 8/24/2011 11:55:22 AM Name: KlatzkowJeff Title: County Attorney, Date: 8/25/20114:46:26 PM Name: IsacksonMark Title: Director. -Corp Financial and Mgmt Svs,CMO Date: 9/2/2011 10:11:13 AM Name: Isacks©nMark Title: Director - Corp Financial and Mgmt Svs,CMO Date: 9/2/2011 10:45 :38 AM 9/13/2011 Item 16.A.5. 9/13/2011 Item 16.A.5. I i -7 - v AS \ Z ° Z. M 11 o �Ir n f' - r vm r I On - � n _ T r` o I< I F h N ogos; _ 6-- lot oil TH 04 s a Willy HMO m gmR° A g$ a '.( HUM gal �, �,a s R$mRRsgm HIM c „O •C� ». ^ ,- o_ � T 'M �' R RR �RF, .am RYE zR � .0 t �gm R �� it; - 1�. k ='mA�S R p€ L lmo W $NO y� - f n > 2 Qi h� a AN, oGw m ,+ran �O m � TIN an ins lam is a H 111a IYy ��sRz d roar €cN =u - N< PORN! g ma I e �'g2'�S K7 Rp "R d7'Rg+ HIP (qiI-! _ n sae. m.,pa- b :. A3SRRpga n c? m H, gm Iz 6 m iV ?R \ g y P^ o8o• R w; n - < Packet Page -1281- m - e soft rt v F J - it vt y a � _I lok U _ - _ AIN m Coo` _ - mte 0 Fogy, 9/13/2011 Item 16.A.5. 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COLLIES, COUNTY GOVERNMENT COMMUNITY DEVELOPMENT AND ENVIRONMENTAL SERVICES DIVISION ENGINEERING SERVICES DEPARTMENT April 15. 2002 2800 NORTH HORSESHOE DRIVE NAPLES, FL 34104 Ari Joel Development, Inc. 1 100 Pine Ridge Road Naples, FL, 34108 RE: Sapphire Lakes Unit Four (A.B.C) First National Bank of Naples Escrow Agreement Dear Sir or Madam: Please be advised that the Collier County Land Development Code provides for 36 months to complete subdivision improvements. Sapphire Lakes Unit Four was approved by the Board of County Commissioners on August 4. 1997. Please advise this office within 30 days of your schedule to complete the subdivision, and have the improvements accepted by the County. Collier County still holds 3 Construction. Maintenance and Escrow Agreements with First National Bank of Naples to ensure completion of the improvements. If the improvements are not completed / accepted within 60 days, Collier County may be forced to draw on the Escrow agreements to ensure compliance with the Land Development Code. Please attend to this matter at Four earliest convenience. Sincerely. t Join R Houldsworth Engineer Cc: First National Bank of Naples Avirom — Tolton Engineers Patrick G. White, Assistant County Attorney Thomas E. Fuck, P.E., Engineering Review Director PHONE (941) 650 -5744 Packet Page - 1287 -96S wwwco.coI lien fl. us 9/13/2011 Item 16.A.5. April 4,.2011 Through the Office of the County Attorney 5`h d _3 , rBank. RE: Sapphire Takes Units 4A, 4B. 4C Dear Sir or Madam: We have inspected the sub . ject projects and find the following items are still Fending completion: • Locate several drainage structures which appear to be buried • Cleaning of all drainacrC� e facilities • c' Repair broken curbs • Repair broken sidewalks • Remove exotics from lakes • Video gravity sewer — make repairs as necessary • Final inspection of sanitary sewer and. potable water facilities prior to acceptance by Collier County for operation & maintenance. • Obtain certification from South Florida Water Mana-ement District Z4 The required 10% maintenance SeeUr't\� is S'�7 I - � A99.50 Cleanin- of drainage facilities 2.000.00 Repair of curb and sidewalk 112.000,00 Remove exotics 1000.00 Video GravitV server _00.00 South Florida Certification j_000.00 Security in the event that the sewer or Water system require repairs And Administrative costs 29.000.50 $80.000.00 Our preference is that the Bank arrange for these items to be completed. If I can be of any further assistance to you in this regard. pleas-, let me know. 280D North Hcrsehoc D.nvp • NaDleE, Pioriaa U104 - 239-2552-2240n -Tax 23c4-643-�96b - �'nwmcoli!erqpv,ne` Packet Page -1288- 1 - n John R. Houldsworth Senior Site Plans Reviewer 9/13/2011 Item 16.A.5. Cc: ,lack McKenna, P.E., County Engineer Steve Williams, Assistant County Attomev Packet Page -1289- 9/13/2011 Item 16.A.5. SETTLEMENT AGREEMENT AND MUTUAL RE LEASE /0"1111 THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE (hereinafter referred to as the "Agreement and Release") is entered into and made as of the Effective Date in 2011 (defined in the final numbered paragraph hereof), by and between FIFTH THIRD BANK, an Ohio Banking Corporation, and BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA (hereinafter referred to as "the County") W I T N E S S E T H: WHEREAS, Fifth Third Bank and the County have reached an agreement as to issues surrounding the development of Sapphire Lakes and, WHEREAS, Fifth Third Bank and the County have had a beneficial working relationship for years and seek to avoid litigation; and., WHEREAS, First National Bank of Naples (predecessor in interest to Fifth Third Bank), Ari Joel Development, and the County entered into Construction and Maintenance and Escrow Agreements for those subdivisions known as Sapphire Lakes dated August 5, 1997 (for Unit 4A) and August 26, 1997 (for Units 4B & 4C) (the "Construction Agreements".) pursuant to which First National Bank of Naples was to hold sums in escrow pending the final and complete inspections and approvals of the Sapphire Lakes subdivision; and Paue I of 6 C� Packet Page -1290- 9/13/2011 Item 16.A.5. AO-IN, WHE- REAS, First National Bank of Naples failed to no[,-' such sums in escrow until the final completion approvals; and WHEREAS, Ari Joel Development breached the terms of the Construction Agreements by failing to complete improvements in Sapphire Lakes; and WHEREAS, the County has or will incur costs and expenses to make the improvements in Sapphire Lakes as specified in the Construction Agreements and seeks reimbursement from Fifth Third Bank, as successor in interest to First National Bank of Naples, for such costs and expenses as will be incurred, NOW, THEREFORE, in consideration of the mutual covenants, promises and consideration set forth in this Agreement and Release, and with the intent to be legally bound, Fifth Third Bank and the County agree as follows: /1-1%1 1. Fifth Third Bank and the County adopt and incorporate the foregoing recitals, sometimes referred to as "Whereas Clauses," by reference into this Agreement and Release. --i-' it h T him. 5ank shall pay' to tne m (--lounty the su o° Thousand Dollars (S80.1000) within 30 days of execution of this Agreement and Release by all parties, by issuing a check, payable to the Board of County 1commissioners of "-'.oliie,- County, Florida, and sent c/o Steven T. Williams, Assistant County Attorney, Office of the County Attorney, 3299 IL---:ast Tamiami Trail, Suite 800, Naples, Florida '34112-5 7149. 3. In consideration of the resolution of all disputes or claims arising from or referring or relating in any way, whether directly or indirectly, to the Construction Agreements and Sapphire Lakes, and upon receipt and in consideration of the sum of Eighty Thousand Dollars ($80,000) paid in accordance with paragraph 2, above, and Page 2 of 6 Packet Page -1291- 9/13/2011 Item 16.A.5. other valuable consideration paid by Fifth Third Bank, the receipt and adequacy of which is hereby acknowledged by the County, the County hereby expressly releases and forever discharges Fifth Third Bank, as well as its officers, employees, ex; employees, agents, attorneys, representatives, insurers, successors, assigns, heirs and affiliates, from any and all claims, demands, causes of actions, damages. costs, attorney's fees, expenses and obligations of any kind or nature whatsoever that the County has asserted or could have asserted in relation to the dispute regarding the Construction Agreements. 4. Notwithstanding anything that may be to the contrary in Paragraphs 3 or 4 above, Fifth Third Bank and the County agree that either of them (as well as any other persons or entities intended to be bound or benefitted hereby) shall, in the event of any breach, retain the right to enforce the terms and conditions of this Agreement and Release. in the event of an alleged breach of this Agreement and Release, Fifth Third Bank and the County agree that all underlying causes of action or claims of 'Fifth Third Bank and the County respecting or relating to the subject matter of the Construction Agreements have been extinguished by this Agreement and Release, and that the sole remedy for breach, of this Agreement and Release shall be for specific performance of its terms and conditions, or any damages arising from the breach. In this regard, Fifth Third Bank and the County further agree that the sole venue for any such action shall be in the Twentieth Judicial Circuit in and for Collier County, Florida in Naples, Florida. 5. Fifth Third Bank and the County acknowledge and agree that this Agreement and Release is intended to and shall be binding upon their respective Page 3 of 6 Packet Page -1292- 9/13/2011 Item 16.A.5. 11-IN, officials, officers, employees, ex-employees, agents, attorneys, representatives, insurers, successors, assigns, heirs and affiliates. 6. Fifth Third Bank and the County recognize and acknowledge that this Agreement and Release memorializes and states a settlement of disputed claims, and that nothing in this Agreement and Release shall be construed to be an admission of any kind, whether of fault, liability, or of a particular policy or procedure, on the part of either Fifth Third Bank or the County. Fifth Third Ban' and the County acknowledge and agree that this I . - I K Agreement and Release is the product of mutual negotiation, and that no doubtful or ambiguous language or provision in this Agreement and Release is to be construed against any party based upon a claim that the party drafted the ambiguous provision or language, or that the party was intended to be benefited by the ambiguous provision or language. 81 Fifth Third and the County agree that Fifth Third retains all rights to pursue Ari Joel Development, In--. for recoupment of the payment specified in paragrapil '21. This Agreement and Release may be amended only by a written instrument specifically reterring to this Agreement and Release and executed with the same formalities as this Agreement and Release. 10. This Agreement and Release shall be governed by the 'laws of the State of Florida. 11 a This Agre ement and Release may be executed in counterparts, but the same shall jointly constitute one and the same instrument. Pan 4 of 6 Packet Page -1293- 9/13/2011 Item 16.A.5. 12. The "Effective Date" hereof shall be the first date upon which both parties have executed this Aareement and Release as evidenced by the dates entered in their respective signature blocks below. IN WITNESS WHEREOF, Fifth Third Bank and the County have signed and sealed this Agreement and Release as set forth below. Date: Date: ATTEST: BOARD OF COUNTY COMMISSIONERS DWIGHT E. BROCK, CLERK OF COLLIER COUNTY, FLORIDA , Deputy Clerk Approved as to form and legal sufficiency: Steven Ti. Williams Assistant County Attorney Date: M FRED W. COYLE, Chairman Page 5 of 6 Packet Page -1294- Witnesses: Signature Print name Signature 4� Print name S T A TEE 0 F COUNTY 0 F hLl", 114 THIS SETTLEMENT AGREEMENT AND AND COLLIER COUNTY, FLORIDA as day of .2011. Signature of Notary Public Commissioned Name of Notary Public (Please print, type or stamp) y Commi0Slon zw^p CP\06-EIS-00800\29 9/13/2011 Item 16.A.5. FIFTH THIRD BANK BY: Print name: Title: RELEASE BETWEEN FIFTH THIRD BANK WAS SWORN TO and subscribed by before me on thi_ ',Personally Known or Produced identification Type of identification Produced Paae 6 of 6 Packet Page -1295- 9/13/2011 Item 16.A.5. b--NOW ALL MEN BY THESE PRESENTS: That the undersigned, The Board of County Commissioners of Collier County. Florida (the "Board") for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged. does hereby, and on behalf of' all successors and assigns, release and forever discharge rz; Z-7Lr 2�iAz� Whe "Bank), and their agents, servants. empiovees, heirs. . personal representatives. assigns and successors., and all other persons. firms, or corporations connected therewith. of and from an,,, and all claims, demands, causes of action, damages, judgments or suits at law and equity of whatsoever kind, through the date of this release whether due or not, direct or contin.acrit, liquidated or un- liquidated, patent or latem, known or unknown, in any way arising out of or relating to the Construction and Maintenance Agreement (and Escrow if applicable,) for that C7 -nA subdivision Imown as %pj?f L-4L�r- E dated L �*,4, ,�;between _4 , .4 _ I developer. the Board and the Bank. It is agreed and understood that this settlement is a compromise of doubtful and disputed claim and that the payment of the consideration expressed is not to be construed as an admission of liability. The undersigned acknowledges full and complete satisfaction, represent and warrant that tnev have not assigned any righas. claims or causes of action a(gainsi any party herein released and declare and represent that no promises. inducenionts., or agreemcnts not herein expressed have beer, made. It is further acknowiedgta -1 that this release contains the entire agreement bmveen the -parties hereto and that the terms of this release are contractual, not rezit,ais. Last, the undersigned ivar.-ant that they are duly authorized and competent to "execute this release. IN IxVITNESS WHFRI-OF. this release has been road and siguied this day of ATTEST: BOARD OF COUNTY COMMISSIONERS DWIGHT E. BROCK. CLERK OF COLLIER COUNTY, FLORIDA ME Deputy Clerk Chairman Approved as to form and legal sufficiency: Steven T. NVilliams. Assistant County Attorney Packet Page -1296- A01"11-1 9/13/2011 Item 16.A.5. KNOW ALI.- MEN BY THESE PRESENTS: That the undersigned, Sapphire Lakes Homeowners Association. Inc, (",Association") for Lyood and valuable consideration. the receipt and sufficiency of which is hercbN acknowledged, does heTeb-y, and on behalf of all successors and assigns, release and forever discharge 5/3'd Bank, (the "Bank). and the Board of County Commissioners for Collier County ("Board") and their agents, servants. employees. heirs, personal representatives, assigns and successors, and all other persons, firms or corporations connected tberekNrith, of and from any and all claims, demands. causes of action, darnauyes. iud--ments or suits at laxv and equity of whatsoever kind, through the date of this release whether due or not, direct or contingent. liquidated or un-liquidated, patent or latent. knoNA"n or unknown, in ariv war arising out of or relatili(-, to the Construction and Maintenance and Escrow Agreements for those subdivisions known as Sapphire Lakes T k- d August 5, 1997 and Auaust 26. 1997 . (for Units 4B &,- 4C) Units 4A- 4B. and 4C. date between Ari Jo-11 Development, developer., the -Board" and the "Bank-. It is agreed and understood that this settlement is a compromise of a doubtful and disputed claim and that the payment of the consideration expressed is not to be construed as an admission of liability. The undersigned act no -, full and cornnicte satisfaction. represent and warrant that the-y have not assioned any rl(-Yh,s, claims or causes of action against am, party herein relcascd and deciare and represent that no promises. inducerntmis. or agircemenis not herein c\nressed have beer, made. It is further acknowledar--d that this release contains tirit, enlart, aL,,reemLnt t)civoeou thc: parties rl.-rcto and that the terms of this release are contractual, pat recitals. Lastly, the undersi,.,ri ecl Nvarrant thai thzv arc` duj v authorized an,-i competent to execut=e tl".is rcicasc, Lei %N17'17�]],SS V"H'REC)". this release has been read and s i red this day of 2011 )A By: Sign R Print State o` Counh' OF Packet Page -1297- 9/13/2011 Item 16.A.5. State of Florida County The foregoing-JIelease was ackriowicdized before me this da 2011, � 7 of as- of the ("Association"), who is S p__ rsonallv-' known to me or has produced as identification and who did /did not take an oath. Stamp or Sea] KATHLEEN LYNN HEJNWCHSBERG MY COMMISSION # DD971486'i t,AEXPIRES March 15, 2014 Approved as to form and Legal sufficiency: rr Steven T. - Williams Assistant County Attorne` Notan, SignatuYe W Z:� Name Printed My Commission Expires: 1, Packet Page -1298- 0