Agenda 04/27/2010 Item #16A 7
Agenda Item No. 16A7
April 27, 2010
Page 1 of 25
EXECUTIVE SUMMARY
Recommendation that the County Manager, or his designee, forward the matter of the
default of the Impact Fee Deferral Agreement between Collier County and Creative
Choice Homes, XIV, Ltd. for the Heron Cove Apartments/Saddlebrook Village Phase II
to the Office of the County Attorney to initiate any and all legal action including, but not
limited to, lien foreclosure, if necessary
OBJECTIVE: That the Board of County Commissioners direct the County Manager, or his
designee, to forward the matter of the default of the Impact Fee Deferral Agreement (Deferral
Agreement) between Collier County and Creative Choice Homes, XIV, Ltd. for the Heron
Cove Apartments/Saddlebrook Village Phase II to the Office of the County Attorney to initiate
legal action, up to and including lien foreclosure.
CONSIDERATIONS: On March 7, 2003 the Board of County Commissioners entered into a
Deferral Agreement (attached) with CEI/Kensington, Ltd. for the deferral of impact fees in the
amount of $2,170,855.04 for 298 affordable rental units at Heron Cove
Apartments/Saddlebrook Village Phase II. In accordance with the Deferral Agreement, the
term of the deferral was for a period of 6 years and 9 months from the date of the agreement.
Concurrent with the execution of the Agreement, a lien was placed on the subject property in
the amount of the deferred impact fees as security for Collier County's interest and is still in
place on the property record.
On March 18,2003 a Tri-Party Agreement (attached) between Collier County, Creative Choice
Homes XIV, Ltd. and The Bank: of New York Mellon Trust Company of Florida was executed.
This Tri-Party Agreement provided for an Impact Fee Deposit Amount, paid by Creative
Choice Homes to the Bank: of New York Mellon, to be invested in order to guarantee a yield
sufficient to increase the Impact Fee Deposit Amount to the full impact fee amount deferred,
by the scheduled date of December 7, 2009; these funds being held solely on the behalf of
Collier County.
On December 7, 2009, Collier County, requested that the amount of $2,170,855.04 be
disbursed to Collier County in accordance with the executed Tri-Party Agreement, the Impact
Fee Deferral Agreement and Trust Indenture, as the term of the specified Deferral Agreement
had concluded. However, on December 15, 2009, Collier County received notification from
the Bank: of New York Mellon that the balance of the Impact Fee Account totaled
$2,127,384.42, or $43,470.62 less than the total amount of impact fees deferred and due and
payable to Collier County under the terms of the executed Deferral Agreement. Funds in the
amount of $2,127,384.42 have been transmitted to Collier County leaving the outstanding
balance of$43,470.62.
Section 2.2 of the executed Tri-Party Agreement provides the following:
Agenda Item No. 16A7
April 27, 2010
Page 2 of 25
Section 2.2 Payment of the Impact Fee Amount The O'Wrler agrees and acknowledges
that such Impact Fee Deposit shall be nonrefundable to the O'Wrler. The O'Wrler agrees
and acknowledges that such Impact Fee Deposit Amount and all investment income
thereon will be held solely for the benefit of the County. The Owner agrees that if the
moneys in the Impact Fee Account are insufficient to pay the amounts owed under the
Deferral Agreement then the Owner shall be responsible for such insufficiency and the
O'Wrler further agrees that the County's rights and remedies under the Deferral
Agreement shall apply with respect to the Owner's obligation to pay the insufficiency.
On January 20, 2010, by way of Certified Mail, Creative Choice Homes, XIV, Ltd. was
notified that they are in default of the Impact Fee Deferral Agreement. In accordance with the
remedy provisions of the said Agreement the correspondence outlined that payment be
remitted to the County, totaling $43,470.62, within 90 days of the date of the notice. In the
event the default is not cured within 90 days after mailing written notice the County may bring
a civil action to enforce the Impact Fee Deferral Agreement. Additionally, a delinquency fee
equal to 10% of the total Impact Fee owed shall be assessed. Once delinquent, the total Impact
Fee, plus delinquency fee, shall bear interest at the then applicable statutory rate for final
judgments, calculated on a calendar day basis until paid in full.
The 90-day period ends on April 20, 2010. To date, payment has not been received by Collier
County nor has there been any communications or correspondence from or on behalf of
Creative Choice Homes, XIV, Ltd. to Collier County regarding this matter.
FISCAL IMPACT: The remaining balance of $43,470.62 is due and payable to Collier
County and is the responsibility of the owner, Creative Choice Homes, XIV, Ltd. Upon
payment, such funds would then become immediately available to provide funding for growth-
related capital improvements. The fiscal impact of the original deferral to the County was the
loss of the income to the impact fee trust funds for the term of the Deferral Agreement;
however, the Agreement was consistent with the policies and regulations in place at that time.
The failure to receive payment after the expiration of the 6 year and 9 month term jeopardizes
the County's ability to provide capital improvements, necessitated by growth, in a timely
manner.
The fo llowing are the amounts, by impact fee type, that remain to be paid:
Impact Fee Amount
Community Parks $2,882.71
Correctional Facilities 704.03
Emergency Medical Services 554.96
Library 1,277.01
Regional Parks 2,876.74
Road 10,806.87
Agenda Item No. 16A7
April 27,2010
Page 3 of 25
School 4,935.00
Sewer 10,001.79
Water 9,431.51
TOTAL $43,470.62
Filing and other associated fees will be approximately $1,000. As provided in the Deferral
Agreement, the County will seek to recover all costs in initiating and pursuing this suit. The
litigation relative to Saddlebrook I resulted in attorney's fees of $5,000 being paid to the
county from the owner.
GROWTH MANAGEMENT IMPACT: Objective 1.2 of the Capital Improvement Element
(CIE) of the Collier County Growth Management Plan (GMP) states: "Future development will
bear a proportionate cost of facility improvements necessitated by growth. "
Additionally, Policy 1.4 of the Housing Element of the Collier County Growth Management
Plan states: "Collier County shall seek to distribute afJordable-worliforce housing equitably
throughout the county where adequate infrastructure and services are available. Programs
and strategies to encourage afJordable-worliforce housing development may include, but are
not limited to, density by right within the lmmokalee Urban area and other density bonus
provisions, impact fee deferrals, expedited permitting (fast tracking), public-private
partnerships, providing technical assistance and intergovernmental coordination. "
Impact Fees generate funds to be expended for capital improvements to public facilities
necessitated by growth. The deferral of impact fees for the subject property for the initial 6
year and 9 month term was consistent with the Growth Management Plan and the impact fee
regulations in place at the time of execution of the Deferral Agreement. However, failure to
pay the impact fees that are now due and payable has a direct impact on each of the impact fee
trust funds that originally provided a deferral of impact fees.
LEGAL CONSIDERATIONS: As of April 20, 2010, this matter may be timely filed in the
Collier Circuit Court to enforce the Agreements. Upon recommendation of the Board of
County Commissioners, a lawsuit will be drafted and filed with the Court. STW
RECOMMENDATION: Recommendation that the Board of County Commissioners direct
the County Manager, or his designee, to forward the matter of the default of the Impact Fee
Deferral Agreement between Collier County and Creative Choice Homes, XIV, Ltd., for the
Heron Cove Apartments/Saddlebrook Village Phase II, to the Office of the County Attorney to
initiate legal action, up to and including lien foreclosure.
Prepared Bv: Amy Patterson, Impact Fee and Economic Development Manager, CDES
Item Number:
Item Summary:
Meeting Date:
Agenda Item No. 16A7
April 27, 2010
Page 4 of 25
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
16A7
Recommendation that the County Manager, or his designee, forward the matter of the default
of the Impact Fee Deferral Agreement between Collier County and Creative Choice Homes,
XIV, Ltd. for the Heron Cove Apartments/Saddlebrook Village Phase II to the Office of the
County Attorney to initiate any and all legal action including, but not limited to, lien
foreclosure, if necessary.
4/27/20109:00:00 AM
Prepared By
Amy Patterson
Community Development &
Environmental Services
Manager -Impact Fees & EDC
Date
Business Management & Budget Office
4/8/201011:32:11 AM
Approved By
Nick Casalanguida
Transportation Division
Director - Transportation Planning
Date
Transportation Planning
4/9/20107:54 AM
Approved By
Judy Puig
Community Development &
Environmental Services
Operations Analyst
Community Development &
Environmental Services
Oate
419/2010 1 :43 PM
Approved By
Steven Williams
County Attorney
Assistant County Attorney
Date
County Attorney
4/12/201010:25 AM
Approved By
OMB Coordinator
County Manager's Office
Date
Office of Management & Budget
4/12/20102:38 PM
Approved By
Leo E. Ochs, Jr.
County Managers Office
County Manager
Date
County Managers Office
4/17/20103:36 PM
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AGREEMENT FOR 100% DEFERRAL OF COLLIER
COUNTY IMPACf FEES FOR MULTI-FAMILY
AFFORDABLE HOUSING
This Agreement Cor the Deferral ofImpact Fees is entered into this )-11, day of .Jj Q r L t.
200.3, by and between Collier County, a political subdivision oCthe State of Florida, through its
Camily, rental dwelling units which
WHEREAS, lohn F. Weir, Senior
. ent of Creative Choice Homes, XIV, Ltd.;
and
WHEREAS, Creative Choice Homes, XIV, Ltd., has applied for a deferral of impact fees
as.required by the Impact Fee Ordinance for its Saddlebrook Village, Phase 2, hereinafter referred
to as "PROJECT, tt and a copy of said application is on file in the Financial Administration &
Housing Department; and
WHEREAS, the County Manager, or his designee. has reviewed the OWNER'S
application for the PROJECT and has found that it complies with the requirements for an
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10f8
OR: >>~aPf$1t~!tb
Page 6 of 25
affordable houling deferral of multi-family impact fees as required by the Impact Fee Ordinance;
and
WHEREAS. the COUNTY desires to issue an impact fee deferral in the amount of Two
Million One Hundred Seventy Thousand Eight Hundred Fifty-Five and 041100 (2. I 70,8SS.04} for
six years and nine months from the date of the execution of this agreement for the PROJECT;
and
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WHEREAS. the Impact Fee Ordinance requires that the OWNER enter into an
Agreement with the COUNTY; and
impact fees for OWNER in
h
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Recitals and other good and
y mutually acknowledged, the
l.
The foregoing Recitals are true and correct
and are incorporated by reference herein.
2. LEGAL DESCRIPTION. The PROJECT's legal description for the location of
the dwelling units (the "Dwelling Units") that will have their impact fees deferred is attached
hereto u Exhibit "A," and the PROJECrs site plan is attached as Exhibit "B," and both Exhibits
are incorporated by reference herein.
3. TERM. The OWNER agrees that the Dwelling Units shall remain affordable and
shall be offered for rent in accordance with the standards set fonh in the Impact Fee Ordinance
for a minimum term of fifteen (IS) years commencing from the date a cenificate of occupancy is
issued for a particular Dwelling Unit; and that the term of the requirement to pay the PROJECT's
20f8
OR: >>4~~~,i~,~6
Page 7 of 25
impact fees will be deferred for six (6) years and nine months from the date of the impact fees
being due and payable.
4. REPRESENTA nONS AND WARRANTIES, The OWNER represents and
warrant. the following:
A. Each Dwelling Unit will. during the term of the Agreement, be the
permanent residence of a qualifying occupant/tenant.
B. At the commencement of any leasehold and throughout the duration
thereof: the households renting Dwelling Units must have a very low or low
C.
PAYMENT. If OWNER
d then re-rents that Dwelling
only to persons or households
Ordinance increases by more than forty percent (400fc.) above the maximum low income level
described in the Impact Fee Ordinance, then the per unit deferred impact fee on the non-
compliant unit shall become immediately due and payable by OWNER or, in the alternative. the
OWNER shall have ninety (90) days to comply with the Affordable Housing guidelines set forth
in the Impact Fee Ordinance. Assuming the OWNER has not been able to comply with the
guidelines, upon the discontinuance of use of a Dwelling Unit as aff'ordable housing. or six years
and nine months from the date such impact fees are deferred, whichever occurs tirst, the impact
fees deferred shall be immediately repaid to the COUNTY. OWNER agn:es that even though
the impact fees may have been repaid to the COUNTY. the OWNER will continue to utilize the
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30f8
OR: m~cPGZn ~598A7
April 27, 2010
Page 8 of 25
Dwelling Units for affordable housing for at least fifteen (15) years from the date the first
certificate of occupancy was issued for a Dwelling Unit.
6. ANNUAL REPORT. Annually, OWNER of the Dwelling Unit shall provide to
the Financial Administration & Housing Department an Affidavit attesting to compliance with the
affordable housing qualification criteria and standards set forth in the Impact Fee Ordinance. Said
Affidavit must be filed with the County Manager and is due within thirty (30) days of the
anniversary date of the issuance of the first dwelling unit's cenificate of occupancy. Any Dwelling
Units monitored by the Florida Housing Finance Corporation or similarly monitored by any other
County Manager.
7. LIEN. 0
Seventy Thousand Eight
property and Dwelling Units
with the requirements of this
that all of the COUNTY'S lien rights and any other interests arising under this Agreement are to
be considered junior, inferior, and subordinate to each first mortgage on the PROJECT. Except
as elsewhere noted in this Agreement, such lien shall be superior and paramount to the interest in
ihe Dwelling Unit of any owner, lessee, tenant, mortgages, or other person except that this lien
shall be on parity with any lien for County taxes.
8. RELEASE OF LIEN. Upon satisfactory completion of this Agreement's
requirements, including payment of the deferred impact fees, the COUNTY shall, at the expense
of the COUNTY, record any necessary documentation evidencing such payment, including but
not limited to, a releue of lien.
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OR: m(dW~~ill~~6
Page 9 of 25
9. BINDING EFFECT. This Agreement shall be binding upon the Parties to this
Agreement. their heirs. successors, and assigns, In the case of sale or transfer by gift of any
Dwelling Unit. the original OWNER shall remain liable for the impact fees deferred until said
impact fees are paid in full.
10. RECORDING. This Agreement shall be recorded by OWNER at the expense of
OWNER in the Official Records of Collier County, Florida within sixty (60) days after execution
of this Asreement by the County Manager.
11. DEFAULT. OWNER shall be in default of this Agreement:
A.
of mailing of
B. if 0
criteria in the
of written noti
C.
in default.
12. REMEDIES. The following remedies are cumulative with any other right or
remedy available to the COUNTY:
A. Should the OWNER of the property:
I) fail to comply with the said qualification criteria at any time during
the fifteen (IS) year term; or
2) violate any provisions of this Agreement,
then the dollar amount of impact fees deferred shall be paid in full by OWNER to
the County within thirty (30) days of written notification of said violation.
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Page 1d'~ 25
B.
Should the OWNER otherwise be in default of this Agreement, and the
default is not cured within ninety (90) days after mailing written notice to the
OWNER, the COUNTY may bring a civil action to enforce the Agreement.
C. In additio~ the lien may be foreclosed, or otherwise enforced by the
COUNTY, by action or suit in equity including the foreclosure of a mortgage on
real property. The COUNTY shall be entitled to recover all fees and costs,
including attorney's fees, plus interest at the statutory rate for judgments
calculated on a calendar day basis until paid.
(2) Witnesses:
rrat shall likewise be reduced if
and beyond the amount of this d
IN WITNESS WH
reement on the date and
WTS I si :
Print Name~ -h y,," .5: I
WTS 2 sip: W
Print Name S"A-J4 r e:-tS '.I . )1, i'"1 AM ~GL-r-
By: ~ j~ 1~
lohn Weir, Senior Vice President of
Creative Choice Homes XIV, Inc., its
General Partner
(CORPORATE SEAL)
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Page 11 of 25
S1 ATE OF FLOR1QA '" ~ .
COUNTY OF ~ l..J.l a (l/j
S!Eresoina Agreement wu acknowledged before me this :J- day of A,{ a 1 ~ it...-
200 John F. Weir, as Senior Vice President of Creative Choice Homes, XIV, Inc., the
rat Partner of Creative Choice Homes XIV, Ltd.. He is personally Imnwn t~~ or
uced (type of identification) as identification.
At~A_
owledgment
+r I {tLl "r < C a l n...-<..:
Name of Acknowledger Typed, Printed or Stamped
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Page 12 of 25
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORID~
BY:~~~ ~
1 S V. MUDD.
COUNTY MANAGER
Patrick G. White ~
Assistant County Atto
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Exhibit "A"
Agenda Item No. 16A7
April 27, 2010
:13 of 25
LEGAl. DESCRlPnON
Ll'tfG IN
SECTION 34. TOWNSHIP 4i SOU'TH, RANGE 26
COWER COUNTY FlORIM.
(PROPOSED SAODLEBROOIC PHASE twO)
EAST,
A TltACt 0It "AltCtL or lMD SmMttD It lH[ STAtI OF FlDllDA, COUNTY or COlLO, LYING IN sa:t1ON J4.
TOwIdMI" 41 SOUtM. IlANCr U fAST, AND M:INC IIllRf: PAR1lCUIMLY DnCIlIK) AS FOU.Oll'S:
AS PMMO[O IT OWNER,
'ItIt: ll'I:S1 lit or TIC SllUnCASf I/Z or SRIlOH )4. 1UMIs.. 41 SOU1H. II'11fCt U [AST, or COWOt
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SADDLEBROOK VILLAGE PHASE TWO
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Exhibit "e"
Saddlebrook Village Phase 2
Collier County Impact Fees
Fee Rate Unit Total
Community Park $471.00 238 $112,098.00
Community Park $31,860.00
Regional Park $111,860.00
Regional Park $31,800.00
Library $63,772.00
Road $539,678.00
School $246,446.00
EMS $27.714.00
Jail $117.98 298 $35,158.04
Water nJa 6" meter $470,995.00
Sewer n/a 6" meter $499,474.00
Total $2,170,855.04
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Agenda Item No. 16A7
~~166h 3
EXECUTION COPY
TRI-PARTY AGREEMENT
among
CREATIVE CHOICE HOMES XIV, LTD.
(the "Owner''),
COLLIER COUNTY,
a political subdivision of the State of Florida, through its Board of Commissioners
(the "County''),
and
THE BANK OF NEW YORK TRUST COMPANY OF FLORIDA, N.A.,
a national banking association
(the "Trustee'')
\
ORI.1\CORPSECIoCIl&44O.'"
20019/0014 RMA kl. 317103 9:20 AM
Agenda 'i~i3
TRI-PARTY AGREEMENT
THIS TRl-P ARTY AGREEMENT ("Agreement") is being executed as of this 18th
day of March, 2003, by and among CREATIVE CHOICE HOMES XIV, LTD., a Florida
limited partnership (the "Owner"), COLLIER COUNTY. a political subdivision of the State of
Florida, through its Board of Commissioners (the "County''). and THE BANK. OF NEW
YORK TRUST COMPANY OF FLORIDA, N.A., a national banking association (the
"Trustee") (collectively, the "Parties").
RECITALS
A. The Owner has contracted to purchase, certain real property (herein referred to as
the "Premises") located in Naples, Florida.
B. The Owner intends to construct upon the Premises certain improvements and
appurtenances (herein referred to as the "Improvements" and together with the Premises referred
to as the "Project'') to consist generally of an approximately 298-unit low- to moderate-income
apartment project and all other improvements as may be required therewith.
C. The Owner and the County have entered into a certain Agreement for 100%
Deferral of Collier County Impact Fees for Multi-Family Affordable Housing dated March 7.
2003 (the .'Deferral Agreement") with respect to the deferral of certain impact fees in the amount
of $2,170,855.04 (the "Impact Fee Amount"), an executed copy of which Deferral Agreement is
attached hereto as Exhibit A and the terms of which Deferral Agreement are fully incorporated
by reference.
D. The Owner agrees to pay the Impact Fee Amount under the terms of this
Agreement to the Trustee as satisfaction of its payment obligation under the Deferral Agreement.
E. The Trustee has agreed to hold in the Impact Fees Account (as defined in that
certain Trust Indenture dated as of December 1, 2002, by and between the Trustee and the
Housing Finance Authority of Collier County, Florida (the "Indenture")) an amount equal to
$1,803,882.13 (the "Impact Fee Deposit Amount") received from the Owner for the benefit of
the County for the payment of the impact fees pursuant to Sections 5.12 and 6.01 of the
Indenture.
F. This Agreement is being executed to coordinate the aforesaid financing
arrangement.
IN ORDER TO IMPLEMENT the above facts and understandings, and for value
received, the Parties agree as follows:
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ORL lICORPSEC\496440.4
2001910014 RWI. kIa 3fT103 9:20 NIo
Agenda Item No. 16A7
April 27, 2010
r68A3
ARTICLE I
REPRESENTATIONS AND AGREEMENTS OF THE COUNTY
The County represents and agrees that:
Section 1.1. FuU Force and Effect. The Deferral Agreement is with the Owner and is in
full force and effect.
Section 1.2. Deposit of Impact Fee Amount The County agrees that, notwithstanding
anything to the contrary contained in the Deferral Agreement, the Impact Fee Deposit Amount
shall be deposited into the Impact Fees Account pursuant to Sections 5.12 and 6.01 of the
Indenture with the Trustee. The County acknowledges that the Owner shall direct the investment
of moneys in the Impact Fees Account in Permitted Investments. The County acknowledges that
Owner has directed the Trustee to invest the Impact Fee Deposit Amount in a Permitted
Investment that has guaranteed a yield sufficient to increase the Impact Fee Deposit Amount to
the Impact Fee Amount by the scheduled due date for the Impact Fee Amount. The County
agrees that such Irilpact Fee Deposit Amount and all investment income thereon shall be held
solely on the County's behalf and paid to the County in accordance with the written direction of
the County as required pursuant to Sections 5.12 and 6.01 of the Indenture. The County shall not
request or direct the Trustee to disburse any of the Impact Fee Deposit Amount and all
investment income thereon except in accordance with the Deferral Agreement and the County's
Code of Laws Chapter 74.
Section 1.3. Acceptance of Payment from Owner. The County agrees that once such
Impact Fee Deposit Amount has been paid by the Owner to the Trustee the Owner shall have no
further duties, rights, or obligations with respect to tbe payment of the deferred impact fees under
the Deferral Agreement and that all payment obligations by the Owner have pursuant to the
Deferral Agreement been satisfied, except as set forth in Section 2.2, below.
ARTICLE n
REPRESENTATIONSANDAGREEMENTSOFO~R
The Owner represents and agrees that:
Section 2.1. Completion ofImproveme"ts. The Owner will promptly commence the
construction of the 'contemplated Improvements and agrees to proceed toward the completion
thereof with good faith and without undue delay in accordance with the plans and specifications
relating to Heron Cove Apartments.
Section 2.2. Payment of the Impact Fee Amount The Owner agrees and acknowledges
that such Impact Fee Deposit Amount shall be nonrefundable to the Owner. The Owner agrees
and acknowledges that such Impact Fee Deposit Amount and all investment income thereon will
be held solely for the benefit of the County. The Owner agrees that if the moneys in the Impact
Fees Account are insufficient to pay the amounts owed under the Deferral Agreement then tbe
Owner shall be responsible for such insufficiency and the Owner further agrees that the County's
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Agenda Item No. 16A7
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rights and remedies under the Deferral Agreement shall apply with respect to the Owner's
obligation to pay the insufficiency.
Section 2.3. Representations and Covenants Regarding Low-income Housing. The
Owner hereby acknowledges and agrees that the County is entering into this transaction for the
purposes of facilitating the provision of housing for persons of low and moderate income within
Naples, Florida. To this end, the Owner hereby represents and covenants with the County as
follows:
(a) The Improvements will comprise one or more similarly constructed
dwelling units, each of which will contain separate and complete facilities for living,
sleeping, eating, cooking and sanitation for a single person or a family, including a living
area, a sleeping area, bathing and sanitation facilities and cooking facilities equipped with
a cooking range, refrigerator and sink.
(b) None of the dwelling units in the Improvements will at any time be
utilized on a transient basis or will be used as a hotel. motel, dormitory, fraternity house,
sorority house, rooming house, nursing home, hospital. sanitariwn, rest home or trailer
court or park.
( c) All of the dwelling units will be rented or available for rent on a
continuous basis to members of the general public and the Owner will not give preference
to any particular class or group in renting the dwelling units in the Improvements, except
to the extent that dwelling units are required to be leased or rented to low-income tenants
and persons or families of moderate income. Low-income tenants will have equal access
to and enjoyment of all common facilities of the Improvements.
ARTICLE In
REPRESENTATIONS AND AGREEMENTS OF THE TRUSTEE
The Trustee warrants and agrees that:
Section 3.1. The Escrow Account The Trustee has agreed to establish the Impact Fees
Account pursuant to'the Indenture on behalf of the County.
Section 3.2. Acceptance of Perfomumce by the Owner. The Trustee has accepted the
Impact Fee Deposit Amount from the Owner. The Trustee agrees and acknowledges that such
Impact Fee Deposit. Amount and all investment income thereon shall be nonrefundable to the
Owner. The Trustee has deposited such Impact Fee Deposit Amount in the Impact Fees
Account.
Section 3.3. Disbursements. The Trustee agrees to disburse from the Impact Fees
Account to the County solely in accordance with the terms and conditions of Sections 5.12 and
6.0 I of the Indenture.
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Agenda Item No. 16A7
April 27,2010
pagl062A 3
ARTICLE IV
MISCELLANEOUS AND GENERAL PROVISIONS
Section 4.1. Notices. Any notices, directions, consents or other communications
required or permitted to be given hereunder shall be in writing and given by registered or
certified mail, addressed to the Parties hereto, at the following addresses or to such other
addresses as the Parties may for themselves designate in writing for the purpose of receiving
notices hereunder:
County:
Collier County
c/o Ass't. CoIlier Cty. AU'y.
3301 Tamiami Trail East
Naples, Florida 34112
Attention: Patrick G. White
with a copy to:
Creative Choice Homes XIV, Ltd.
c/o Creative Choice Homes, Inc.
4243 Northlake Blvd.
Palm Beach Gardens, Florida 33410
Attention: Mr. John F. Weir
Trustee:
The Bank of New York Trust Company of Florida, N.A.
10161 Centurion Parkway
Jacksonville, FL 32256
Attention: Ms. Christine A. Boyd
Section 4,2. Governing Laws. This Agreement has been negotiated, made, executed and
delivered in the State of Florida and shall be construed in accordance with the laws of said state.
Section 4.3. Binding Effect This Agreement shall bind and inure to the benefit of the
Parties hereto and their successors, heirs, executors, administrators and assigns.
Section 4.4. Amendments. This Agreement may not be changed, terminated or modified
orally or in any other manner than by agreement, in writing, signed by the parties hereto.
Section 4.5. Headings. The headings in this Agreement are for convenience of reference
and shall not be construed to modify the terms hereof.
Section 4.6. Cou"terptu1s. This Agreement may be signed in separate counterparts and
shall be operative when each party has signed a counterpart.
[Signature Page Attached Hereto and Incorporated Herein by Reference.]
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Agenda Item No. 16A7
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement in manner
and form sufficient to bind them, all as of the date first above written.
ATTEST:
THE BANK OF NEW YORK TRUST
COMPANY OF FLORIDA, N.A., a national
banking association
BY:~~~
~:~: . Ie ' ( "'de
5
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~,
Agenda Item No. 16A7
April 27, 2010
ret; A23
AlTEST:
CREATIVE CHOICE HOMES XIV, LTD., a
Florida limited partnership
PATRICIAO. LAINE By:
By: -PaLw~ €~
Creative Choice Homes XIV, Inc., a
Florida corporation, its general partner
By:
Jw "'VV~
hn F. Weir, Senior Vice President
(
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6
ATTEST:
D~GHTE.BROCK.CLERK
,.. ~~. .
By:~~~j',~:~
Deputy e~er1c ..' ':': J /l
Attest:4s,to Ch&t...~t/
s1gnati"\onl,y_ . .;,"/
-r;; . ,,~
Approved as'~1 fonn ant\~.
legal sufficiency:' [;t:;.'o. ~ . . ~. l'
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Agenda Item No. 16A7
ft;3A?3
.
By:
TOM HENNING, CRAI
4-It...JZ.J~
,
COLLIER COUNTY
BUSlNESS MANAGEMENT AND BUDGET OFFICE
IMPACT FEE SECTION
2800 N. Horseshoe Drive · Naples, Florida 34104 · (239) 403-2369 . Fax (239) 403-2405
CERTIFIED MAIL #7008 2810 000129637259
RETURN RECEIPT REQUESTED
Agenda Item No. 16A7
April 27, 2010
Page 24 of 25
January 20,2010
Ms. Andrea Czarnecki, Registered Agent
2200 NW Corporate Blvd., Suite 302
Boca Raton, FL 33431
RE: Creative Choice Homes XIV, Ltd. (Heron Cove Apartments/Saddlebrook Village
Phase 2) Collier County Impact Fee Deferral Agreement/Tri-Party Agreement
Dear Ms. Czarnecki:
On March 7, 2003, an Agreement for 100% Deferral of Collier County Impact Fees for
Multi-Family Affordable Housing (Impact Fee Deferral Agreement - attached) was
executed between Collier County and Creative Choice Homes, XIV, Ltd. The
Agreement stood in lieu of payment of impact fees totaling $2,170,855.04 for a period of
six years and nine months from the date of the Agreement. At the conclusion of the
Agreement, December 7, 2009, the impact fees became immediately due and payable to
Collier County.
On March 18, 2003, a Tri-Party Agreement (attached) between Collier County, Creative
Choice Homes XIV, Ltd. and The Bank of New York Mellon Trust Company of Florida
was executed. This Tri-Party Agreement required that the Impact Fee Deposit, paid by
Creative Choice Homes to The Bank of New York Mellon, be invested in order to
guarantee a yield sufficient to increase the Impact Fee Deposit Amount to the full impact
fee amount deferred, by the scheduled December 7,.2009 date; these funds being held
solely on the behalf of Collier County.
On December 7, 2009, Collier County, requested payment of $2,170,855.04 in
accordance with the executed Tri-Party Agreement, tpe Impact Fee Deferral Agreement
and Trust Indenture, as the term of the specified Impact Fee Deferral Agreement had
concluded. However, on December 15,2009, Collier County received notification from
The Bank: of New York Mellon that the balance of the Impact Fee Account totaled
$2,127,384.42, which was $43,470.62 less than the total amount of impact fees deferred
and due and payable to Collier County under the terms of the executed Impact Fee
Deferral Agreement. Collier County has received funds in the amount of $2,127,384.42,
leaving the outstanding balance of$43,470.62. .
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Creative Choice Homes XIV, Ltd.
Page 2
Agenda Item No. 16A7
April 27, 2010
Page 25 of 25
Section 2.2 of the executed Tri-Party Agreement provides the following:
Section 2.2 Payment of the Impact Fee Amount. The Owner agrees and
acknowledges that such Impact Fee Deposit shall be nonrefundable to the Owner.
The Owner agrees and acknowledges that such Impact Fee Deposit Amount and
all investment income thereon will be held solely for the benefit of the County.
The Owner agrees that if the moneys in the Impact Fee Account are insufficient to
pay the amounts owed under the Deferral Agreement then the Owner shall be
responsible for such insufficiency and the Owner further agrees that the County's
rights and remedies under the Deferral Agreement shall apply with respect to the
Owner's obligation to pay the insufficiency.
Creative Choice Homes, XN, Ltd. is in default of the Impact Fee Deferral Agreement.
In accordance with the remedy provisions of the said Agreement please remit payment
totaling $43,470.62, within ninety (90) days of the date of this notice, payable to the
Collier County Board of County Commissioners to the address listed below. In the event
the default is not cured within ninety (90) days after mailing written notice to the Owner,
the County may bring a civil action to enforce the Impact Fee Deferral Agreement.
Collier County Government
Community Development and Environmental Services Division
Impact Fee Administration
2800 North Horseshoe Drive
Naples, FL 34104
Attn: Amy Patterson
If you require any additional information, please feel free to contact me at 239.252.5721
or via email atamypatterson@colliergov.net. Thank you for your attention to this matter.
Sincerely, n
1]M1~L y-/~
~; ~.~Patt~rson
Impact Fee and Economic Development Manager
Attachments :
1. Tri-Party Agreement
2. Agreement for 100% Deferral of Collier County Impact Fees fOT Multi-Family Affordable Housing (Impact Fee
Deferral Agreement)
cc:
Leo E. Ochs, IT" County Manager
Jeffrey A. Klatzkow, County Attorney
Nick Casalanguida, Interim Administrator Community Development & Environmental Services
Paula Fleishman, Impact Fee Coordinator
Frank Ramsey, Housing Manager, Public Services Division
Mr. Daniel Bivens, President, Proxypro Management, Inc.
Yash Pal Kakkar, Creative Choice Homes XIV, Ltd,
Harvey J. Polly, President, Progression Housing Foundation, Inc.
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