Agenda 04/14/2009 Item #16K 4
Agenda Item No. 16K4
April 14. 2009
Page 1 of 39
EXECUTIVE SUMMARY
Recommendation that the Board of County Commissioners accept a Settlement Offer in
the sum of $840,125.04, and authorize the Chairman to execute a Settlement Agreement,
Release and Satisfaction, a Release of Lis Pendens, and a Conveyance of Contract Rights
with and to LEHMAN HOUSING TAX CREDIT FUND VII, L.P., that settles in full the
litigation styled as Board of County Commissioners v. CEI/Kensington, et al. 08-07625-CA,
now pending in the Circuit Court for the Twentieth Judicial Circuit in and for Collier
County, Florida, direct all the documents to be recorded in the Official Records of Collier
County, Florida, and direct the County Attorney to take whatever additional action is
necessary to implement this Settlement.
OBJECTIVE: To settle a suit brought by Collier County with respect to obtaining payment of
$666,675.28, plus interest, in past-due deferred impact fees owed by the Saddlebrook Phase I
affordable housing development for a cash settlement of all claims in the amount of$835,125.04
plus $5,000 towards the County's attorneys' fees and costs.
CONSIDERATIONS: On December 16, 1997 the Board of County Commissioners entered
into an Agreement for with CEI/Kensington, Ltd., for the deferral of impact fees in the amount
of $666,675.28 for 140 affordable rental units at SaddlebrookiPelican Point Phase I. In
accordance with the Deferral Agreement, the tenn of the deferral was for 6 years from date of
issuance of the first building pennit, which was October 9, 1998. This Agreement was duly
recorded and became a lien on the subject property,
Despite demand, the impact fees were not paid, and on September 23, 2008 the Board authorized
the County Attorney to initiate any and all legal action including, but not limited to, lien
foreclosure. A copy of the September 23, 2008 Executive Summary, back-up and transcript is
included with this item,
Suit was filed on October I, 2008 seeking payment for the impact fees due ($666.675.28) and
foreclosure of the County's lien on the subject property. Nine defendants were named and
served, including Lehman Brothers, who was and is currently in Chapter I 1 Bankruptcy. An
equity partner in CEI/Kensington, Ltd., LEHMAN HOUSING TAX CREDIT FUND VII, L.P.,
who was not a named defendant, came forward, and after negotiations with the County Attorney,
made an offer of cash settlement of $835,125,04 plus $5,000.00 towards attorneys' fees and
costs. The County Attorney has been assured that a check in this amount will be forwarded to
him no later than the Friday beforc this Board meeting. If the check is not receiyed, this item
will be continued.
Including the legal rate of interest (which has varied between 7% and 1 1 % from 2004 through
2009), if taken to final judgment, as of today's datc thc total sum due the County is
$1,040,775.22. It is the opinion of the County Anorney, howeyer, that accepting the sum certain
of $840,125.04 (which calculates to a compound interest rate of approximately 5.5% per year on
the deferred impact fees since the default date) represents a fair settlement for the County, in that
it avoids the County having to complete the foreclosure proccss and attempt to collect the
Page I of2
.L\genda Item r'~o_ ~ El!\4
/',pcil 14. 2009
P(Cl~V? 2 'Jf 39
obligation through a Court-ordered auction during these difficult and uncertain economic times.
Staff has reviewed and concurs with accepting this offer.
FISCAL IMPACT: The County will capture the entirety of the impact fees due plus an
additional $168,449.76 in interest, with an additional $5,000.00 towards attorneys' fees and
costs, for a total cash inflow to the Impact Fee Trust Accounts in the sum of$840,125.04.
GROWTH MANAGEMENT IMPACT: None.
LEGAL CONSIDERATIONS: This item is legally sufficient for Board action. This is a
regular agenda item requiring simple majority vote. -JAK
RECOMMENDATION: That the Board of County Commissioners accept a Settlement Offer
in the sum of $840,125.04, and authorize the Chairman to execute a Settlement Agreement,
Release and Satisfaction, a Release of Lis Pendens, and a Conveyance of Contract Rights with
and to LEHMAN HOUSING TAX CREDIT FUND VII, L.P., that settles in full the litigation
styled as Board of County Commissioners v. CEIlKensington, et al. 08-07625-CA, now pending
in the Circuit Court for the Twentieth Judicial Circuit in and for Collier County, Florida, direct
all the documents to be recorded in the Official Records of Collier County, Florida, and direct
the County Attorney to take whateyer additional action is necessary to implement this
Settlement.
PREPARED BY: Jeffrey A. Klatzkow, County Attorney
RECOMMENDATION AGREED TO BY: Amy Patterson, Impact Fee and Economic
Development Manager, CDES
Page 2 of2
Page 1 of 1
Agenda Item No. 16K4
April 14, 2009
Page 3 of 39
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
Item Number:
Item Summary:
16K4
Meeting Date:
Recommendation that the Board of County Commissioners accepts a Settlement Offer in the
sum of $840,125.04, and authorize the Chairman to execute a Settlement Agreement,
Release and Satisfaction, a Release of Lis Pendens, and a Conveyance of Contract Rights
with and to LEHMAN HOUSING TAX CREDIT FUND VII. L P., that settles In full the litigation
styled as Board of County Commissioners v, GEl/Kensington, et al. 08-07625-CA, now
pending in the Circuit Court for the TWentieth JudicIal Circuit in and for Collier County,
Florida, direct alllhe documents to be recorded In the Official Records of Collier County,
Flonda, and direct the County Attorney to take whatever additional action is necessary to
Implement this Settlement.
4/14/200990000 AM
Prepared By
Jeff Klatzkow
County Attorney
Date
County Attorney
County Attorney Office
4/8/20098:48:19 AM
Approved By
Jeff Ktatzkow
County Attorney
Date
County Attorney
County Attorney Office
4/8/20099:13 AM
Approved By
Leo E. Ochs, Jr.
Board of County
Commissioners
Deputy County Manager
Date
County Manager's Office
4/8/2009 9:26 AM
.
Auenda :t~il1 ~~o. 16f<4
~ April 14 2009
Page 4 of 39
Aereement
Between:
Board of County Commissioners of Collier County, Florida, a political subdivision of the State
of Florida ("Collier County").
Lehman Housing Tax Credit Fund VII L.P, (the "Fund"),
It is agreed as follows:
1, Capitalized terms are defined in Exhibit A,
2. At a Closing on or before April 14, 2009, the Fund will pay Collier County in cash an amount
equal to $835,124.04 plus an additional $5,000 towards attorneys' fees and costs.
3, Effectiye at the Closing, Collier County will sign and deliyer to the Fund legal documents
sufficient to:
a) release all liens against the Property arising under the Impact Fee Agreement;
b) discontinue the Impact Fee Action with prejudice;
c) convey to the Fund such rights ofCollicr County under the Impact Fee Agreement as
Collier County may lawfully convey.
4. Collier County makes no representations or warranties with respect to the rights conveyed or
whether the rights conyeyed will be of value to the Fund, However Collier County confirms that
effcctive upon receipt of the amount in Section 2, Collier County will haye no further claims
against CEI/Kensington under the Impact Fee Agreement or the Impact Fee Action.
5, The Fund recognizes that the terms of this Agreement are not confidential.
6, Each Party makes the representations and warranties on Exhibit B,
7, The terms contained in this Agreement are binding upon the parties, This Agreement shall be
governed by the law of the state of Florida without reference to the principles thereof respecting
[The Next Page is the Signature Page]
I
W4455082
Agenda Item No. 16K4
April 14, 2009
Page 5 of 39
conflicts oflaw. This Agreement constitutes the entire understanding ofthe parties. Any
amendment to this Agreement must be in writing.
Lehman Housing Tax Credit Fund VII L.P.
By:
LHCI GP VII Inc., General Partner
G/f)
~d D P'et'olo.;e
Authorized SlgnatOl y
By;
Accepted:
Board of County Commissioners of Collier County, Florida
By:
Date:
s to form & legal sufficiency
80445508,2
?,(~ei-i.ja item No. i 61<4-
- /\priI14.2009
FJS;18 6 'Jf 39
Exhibit A
Defined Terms
"Agreement" means this agreement between Collier County and the Fund.
"CEVKensington" means CEI/Kensington, Ltd., a Florida limited partnership.
"Closing" means the date of the payment of the amounts described in Section 2 and the
delivery of the documents described in Section 3,
"Collier County" means the Board of County Commissioners of Collier County,
Florida, a political subdivision of the State of Florida.
"Fund" means Lehman Housing Tax Credit Fund VII L.P., a Delaware limited partnership,
"Governmental Authority" means any agency, authority, body, board, commission, court,
instrumentality, legislature, officer or representative of any nature whatsoeyer of any federal,
state, county, district, municipal, city, or other governmental or quasi-governmental unit or
political subdivision, and private arbitration panels or dispute resolution bodies having
jurisdiction over or affecting a matter involving a party.
"Impact Fee Action" means the legal action entitled Board of Co un tv Commissioners of
Collier Countv v. CEI/Kensington, et al.. No.: 08-7625-CA,
"Impact Fee Agreement" means the agreement executed on December 16, 1997 between
Collier County, CEl/Kensington and Colonial Equities, Inc" which is the subject of the
Impact Fee Action
"Law" means any statute, law, rule, regulation ordinance, command or provision enacted by
a legislature,
"Order" means any judgment, decree, order, writ, permit, license, ruling or command made
by a competent administrative authority.
"Property" means the property referenced in the Impact Fee Agreement and the Impact Fee
Action, which is owned by CEI Kensington,
804455082
Agenda Item No. 16K4
April 14, 2009
Page 7 of 39
EXHIBIT B
Representations and Warranties of Parties
Capitalized terms appearing below shall have Ihe meanings ascribed to Ihem in Exhibit A
to the Agreement.
The Fund represents and warrants to Collier County:
I. Organization. The Fund is a limited partnership duly organized, validly existing
and in good standing under the laws of its state of formation, with the full corporate power and
authority to own and operate its properties and to conduct its business, all as and in the places
where such properties are now owned or opcrated or such business is now being conducted. The
Fund is duly qualified, licensed or admitted to do business under the laws of the state of its
formation,
2, Powers, Absence of Conflicts, Non-Contravention, The Fund has the requisite
corporate power and authority to enter into the Agreement and to perform its obligations
thereunder. The execution, deliyery and performance by the Fund of the Agreement, the
performance by the Fund of its obligations thereunder, and the consummation of the transactions
contemplated therein (a) are not in contravention of the terms of its certificate of limited
partnership, bylaws or other governing documents, as amended to date, (b) will not result in the
yiolation by the Fund of any Law, or Order, of any Goyemmental Authority applicable to the
Fund or any of its assets or properties, and (c) do not conflict with or result in any breach or
contravention (whether with the giving of notice, the passage of time, or both) of the lerms of (i)
any indebtedness or other obligation for money borrowed or owed, or (ii) any contract,
commitment or other arrangement (or series of related or similar contracts, commitments or other
arrangements taken as a whole) that is material to its operation,
3. Authorization, The execution and delivery of the Agreement and the transaction
documents, has been duly and validly authorized, adopted and approyed by all requisite
corporate and partner action, The Fund has receiyed (or has no reason to believe it will not
receive on or before the Closing, as applicable) all approvals, authorizations and clearances from
applicable Goyemmental Authorities, and such other consents, approvals or authorizations as
may be required in order to freely and lawfully consummate the transactions contemplated by the
Agreement. The Agreement has been duly and yal idly executed and del ivered by the Fund and
assuming due authorization, execution and delivery by the other party, constitutes (and, effective
upon the Closing, the balance of the transaction documents will constitute) legal, valid and
binding obligations of the Fund, enforceable against the Fund in accordance with their terms,
except as enforceability may be restricted, limited or delayed by applicable bankruptcy or other
laws affecting creditors' rights generally and except as enforceability may be subject to general
principles of equity,
4, Aoorovals and Consents, No consent, approyal, authorization or action of,
registration Dr filing with, or notice to any Governmental Authority or other public Dr private
third party is necessary or required under any of the terms, conditions or provisions of any Law,
or any Order of any Governmental Authority or any instrument to which the Fund is a party or
80445508.2
" r
:t0iT1 i'~o. 15K4
/\prll ~ 4, 2U09
?age 8 of 39
the Fund's assets or properties are bound in connection with the execution and delivery by the
Fund of the Agreement, the performance by the Fund of its obligations thereunder or the
consummation of the transactions contemplated thereby,
Collier County represents and warrants to the Fund:
1, Organization - Collier County. Collier County is a political subdivision of the
state of Florida and is duly organized, validly existing and in good standing under the laws of the
state of Florida, with full power and authority to own and operate its properties and to conduct its
business, ail as and in the places where such properties are now owned or operated or such
business is now being conducted. Collier County is duly qualified, licensed or admitted to do
business under the laws of the state of its formation,
2, Powers. Absence of Conflicts. Non-Contravention. Collier County has the
requisite power and authority to entcr into the Agreemcnt and to perform its obligations
thereunder, The execution. delivery and performance by Collier County of the Agreement and
the transaction documents. the performance by Collier County of its obligations thereunder, and
the consummation of the transactions contemplated therein (a) are not in contravention of the
terms of its formation documents, bylaws or other goyerning documents, as amended to date. (b)
will not result in the violation by Collier County of any Law, or Order, of any Goyernmental
Authority applicable to Collier County or any of its assets or properties, and (c) do not conflict
with or result in any breach or contrayention (whether with the giving of notice, the passage of
time, or both) of the terms of (i) any indebtedness or other obligation for money borrowed or
owed, or (ii) any contract, commitment or other arrangement (or series of related or similar
contracts, commitments or other arrangements taken as a whole) that is material to its operation.
3, Authorization. The execution and delivery of the Agrecment and the transaction
documents, has been duly and validly authorized, adopted and approyed by all requisite
corporate and member action, Collier County has received (or has no reason to believe it will
not receive on or before the Closing, as applicable) all approvals, authorizations and clcarances
from applicable Governmental Authorities, and such other consents, approvals or authorizations
(including without limitation those of its board of directors) as may be required in order to freely
and lawfully consummate the transactions contemplated by the Agreement. The Agreement has
been duly and yalidly executed and delivered by Collier County and assuming due authorization,
execution and delivery by the other party, constiMes (and. effectiye upon the Closing, the balance
of the transaction documents will constitute) legal, valid and binding obligations of Collier
County, enforceable against Collier County in accordancc with their terms, except as
enforceability may be restricted, limitcd or delayed by applicable bankruptcy or other laws
affecting creditors' rights generally and except as enforceability may be subject to general
principles of equity.
4. Approyals and Consents. No consent, approval, authorization or action of,
registration or filing with, or notice to any Govcrnmental Authority or other public or private
third party is necessary or required under any ofthc terms, conditions or provisions of any Law,
or any Order of any Governmental Authority or any instrument to which Collier Count is a party
or Collier County's assets or properties are bound in connection with the execution and deliyery
80445508 ::
Agenda Item No. 16K4
April 14, 2009
Page 9 of 39
by Collier County of the Agreement, the performance by Collier County of its obligations
thereunder or the consummation of the transactions contemplated thereby,
. . .
804455082
,:..genc.ia Item No. 16b\4
.L\priI14.2009
PaJ8 10 of 39
RELEASE AND SATISFACTION
COMES NOW the BOARD OF COUNTY COMMISSIONERS, COLLIER COUNTY,
FLORIDA, and does hereby waiYe, remise, relinquish, quit claim, and release any and all right to
claim any liens, lien rights, or claims or demands of any kind whatsoeyer it may posesses or
might have against the real property located in Collier County, Florida, currently owned by,
CEI/Kensington, Ltd., a Florida limited liability company, and known as Saddlebrook Village'
Phase I, as more particularly described in Exhibit "A" attached hereto and incorporated herein,
for deferred impact fees, interest, penalties, attorneys' fees and costs, for consideration, the
receipt of which is hereby acknowledged, of the sum of $835,125.04 plus $5,000.00 for
attorneys' fees and costs, which is the subject matter of cause No. 08-7625-CA in the Circuit
Court of the Twentieth Judicial Circuit in Collier County, Florida and arising in and out of the
Agreement for the 100% Deferral of Collier County Impact Fees dated December 16, 1997,
recorded in the Official Records of Collier County, Florida in OR Book 2372, Page 2289,
Amendment to the Agreement for 100% Deferral of Collier County Impact Fees dated December
4,2002, recorded in Official Records of Collier County, Florida in OR Book 3171, Page ]425,
and the Board of County Commissioners, Collier County, Florida, Resolution No. 97-165 dated
December 16, 1007.
DATED TIllS
DAY OF
,2009.
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
By: DONNA FIALA
CHAIR.i\1AN
ATTEST:
DWIGHT E. BROCK,
CLERK OF COURTS
By: Deputy Clerk
Approyed as to legal sufficiency:
Jeffrey A. Klatzkow, Esq.
Counf.y Attorney
LEGAL DESCRIPTION
LYING IN
SECTION 34, TOWNSHIP 49 SOUTH, RANGE 26 EAST,
COLLIER COUNTY FLORIDA.
A TRACT OR PARCEL OF LAND SITUATED. IN THE STATE OF FLORIDA. COUNTY OF
COLLIER, LYING IN SECTIO~ 34, TOWNSHIP 49 SOUTH, RANGE 26 EAST, AND BEING
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT A NAIL AND DISK MARKING THE SOUTHWEST CORNER OF THE
80UTHEAST QUA.~TER (SE1/4) OF SAID SECTION 34;
THENCE ALONG THE WEST LINE OF THE SOUTHEAST QUARTER OF SAID SECTION 34,
N.OO'24'26"E. FOR 50,00 FEET TO THE NORTH RIGHT OF WAY OF DAVIS BOUlEVARD;
THENCE ALONG THE SAID NORTH RIGHT OF WAY, 8.88'55'22"E FOR 94.33 FEET;
THENCE N.OO"49'55"E, FOR 60.92 FEET;
THENCE N.14"33'64"E, FOR 153.96 FEET;
THENCE N.00"24'2l1"E. FOR 608.86 FEET TO A POINT OF CURVATURE;
THENCE NORTHEASTERLY 58.90 FEET ALONG THE ARC A TANGENTIAL CIRCUlAR .
CURVE TO THE RIGHT HAVING A RADIUS OF 75,00 FEET, THROUGH A CENTRAL ANGLE
OF 45"00'00" AND BEING SUBTENDED H BEARS N.22054'26"E FOR
.fH~~~~:45024'26"E, FOR 113, Wl'
THENCE S.44 "35'340E, FOR 0 TO THE POINT OF
THENCECONTINUES.44035 "
THENCE 8.89035'34"E., FO 374
THENCE S.OO021'36"W., FO 5.
THENCE N.B8"5T11"W., FO 3 .0
THENCE N.42000'40"W., FO
HEREI~ DESCRIBED.
G OF THE PARca
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CONTAINING 1,303 SQUARE F
SOHJECI'TO I!ASEMIlNTS AND
BEARINGS ARE BASED ON THE WEST EAST QUARTER (8E1/4) OF
SECTION 34, TOWNSHIP 49 SOUTH, RANGE 26 EAST, COWER COUNTY, FLORIDA AS
BEING N.OO'24'26"E.
RWA CONSI,JL TlNG, INC.
LAND SURVEYORS AND MAPPERS
8050 NORTH HORSESHOE DRIVE SUITE 270
NAPLES, FLORIDA 34104
(941) 84g.1509
D E: 05113102
LSfI 6278
EXHIBIT "A"
Aaenda Item No. 16K4
- ApM114.2009
Page 1 i of 39.
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I',p,il 14. 2Cl09
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April 14. 2009
Pa;;e ~i4 of 39,
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Agenda Item No. ,16K4
IN TIlE CIRCUIT COURT OF TIlE TWENTIETH JUDICIAL CIRCUIT April 14, 2009
Page 15 of 39
IN AND FOR COLLIER COUNTY, FLORIDA - CIVIL DIVISION
BOARD OF COUNTY COMMISSIONERS OF
COLLIER COUNTY, FLORIDA, a political
subdiyision of the State of Florida,
Plaintiff,
vs.
NO.: 08-07625-CA
CEI/KENSINGTON, LTD., a Florida Limited
Partnership; COLONIAL EQUITIES, INC.; DYNEX
CAPITAL, INC.; TEXAS COMMERCE BANK N.A.;
CHASE BANK OF TEXAS N.A.; LEHMAN HOUSING
LENDING, CORP.; DYNEX COMMERCIAL, INC.; HOUSING
FINANCE AUTHORITY OF COLLIER COUNTY, FLORIDA;
LEHMAN HOUSING CAPITAL, INC.; LYNN CONSTRUCTION
OF NAPLES, INe.; ANY AND ALL UNKNOWN CLAIMANT(S)
THAT MAY CLAIM AN INTEREST BY, THROUGH, UNDER
OR AGAINST ANY NAMED DEFENDANT(S), WHETHER SAID
CLAIMANTS ARE DEVISEES, GRANTEES, OR ASSIGNEES;
ANY NUMBER OF TENANTS, the name(s) being fictitious to
account for unknown parties in possession of the subject property,
Defendants
/
RELEASE OF LIS PENDENS
COMES NOW the Plaintiff BOARD OF COUNTY COMMISSIONERS OF COLLIER
COUNTY, FLORIDA (hereinafter the "COUNTY"), and hereby release the Lis Pendens Notice
filed in connection with these proceedings and recorded in the Official Records of CoIlier
County, Florida on October 2,2008 in OR Book 4397, Page 3524.
DATED TillS
DA Y OF
,2009.
ATTEST:
DWIGHT E. BROCK,
CLERK OF COURTS
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
By: Deputy Clerk
By: DONNA FIALA
CHAIRMAN
Approyed as to legal sufficiency:
Jeffrey A. K1atzkow, Esq.
County Attorney
Agenda Item No. i6K4
.'<pril 14. 2009
Page 16 of 39
CONVEYANCE AND ASSIGNMENT OF CONTRACT RIGHTS
COMES NOW the BOARD OF COUNTY COMMISSIONERS, COLLIER COUNTY,
FLORIDA and hereby conyeys, assigns and transfers oyer any and all rights it may now or in the
future legally possess in a certain agreement entitled Agreement for 100% Deferral of Collier
County lmpact Fees dated on December 16, 1997, and recorded in the Official Records of
Collier County, Florida in OR Book 2372, Page 2289, to LEHMAN HOUSING TAX CREDIT
FUND VII L.P. The Board of County Commissioners, and Collier County, docs not, in any
manner, make any representations or warranties with respect to these rights conveyed or whether
the rights conveyed will be of any value to the recipient.
DATED THIS
DAY OF
,2009.
BOARD OF COUNTY COMMISSIONERS
COllIER COUNTY, FLORIDA
By: DONNA FIALA
CHAIRMAN
ATTEST:
DWIGHT E. BROCK,
CLERK OF COURTS
By: Deputy Clerk
Approyed as to legal sufficiency:
Jeffrey A. K1atzkow, Esq.
County Attorney
manatt I phelps I phillips
Agenda Item No. 16K4
April 14. 2009
Peter~ilYIbY!pf 39
Manatt, Phelps & Phillips, LLP
Direct Dial: (212) 830-7217
E-mail: po/berg@manatt.com
manatt
April _, 2009
Client-Matter: 57367-036
BY HAND DELIVERY
Thomas C. Baratta, Esq.
Office of the County Attorney
Collier County
Hannon-Turner Building - Eighth Floor
3301 Tamiami Trail East
Naples, Florida 34112
Re: Lehman Housing Tax Credit Fund VII L,P.:
Agreement with Board of County Commissions of Collier County
Dear Mr. Baratta,
As you know, this finn represents Lehman Housing Tax Credit Fund VII L.P. (the
"Fund"), which has tendered to the Board of County Commissioners of Collier County (the
"County") three executed copies of a proposed agreement (the "Agreement") pursuant to which
the Fund would pay to the County an aggregate amount equal to $840,124.04 (the "Payment
Amount") and the County would conyey certain rights to the Fund and take certain other actions
as described in the Agreement. A copy of the Agreement is attached hereto as Exhibit A.
We understand that the Agreement is scheduled to be considered at a meeting of the
Board of County Commissioners on April 14,2009, and that if the Agreement is approved, the
Agreement would be countersigned by the County at the conclusion of sueh meeting. The
Agreement contemplates that, upon its execution, (a) the Fund is obligated to tender a check in
the amount of the Payment Amount, and (b) the County is obligated to execute and deliver to the
Fund (i) a conyeyance instrument in the form attached hereto as Exhibit B, (ii) a release in the
form attached hereto as Exhibit C and (iii) a dismissal with prejudice of an action brought by the
County against CEI/Kensington Apartments L.P. in the fonn attached hereto as Exhibit D.
In order to facilitate the transactions that are contemplated to take place upon approYal
and countersignature of the Agreement by the County, we are on behalf of the Fund herewith
deliyering to you in escrow a check (the "Payment Check") in the amount of the Payment
Amount.
The County Attorney's Office is instructed to hold the Payment Check in escrow until:
7 Times Square, New York, New York 10036 Telephone: 212.790.4500 Fax: 212.790.4545
Albany I Los Angeles I New York I Orange County I Palo Alto I Sacramento I San Francisco I Washington. D,C,
80447211.1
manatt J phelps I phillips
AGen(~a Item (\)0. 16K4
- ApMi 14. 2009
Page '18 of 39
manatt
Thomas C. Baratta, Esq.
April_.2009
Page 2
1.
The County has countersigned the Agreement;
2.
Exhibit B,
The County has signed a conycyance instrument in the form attached hereto as
3. The County has signed a release in the form attached hereto as Exhibit C
attaching the legal description that is attached as Exhibit D.
4. The County has signed and filed in the Circuit Court of the Twentieth Judicial
Circuit in and for Collier County Florida a dismissal with prejudice of an action brought by the
County against CEl/Kensington Apartments L.P. in the form attached hereto as Exhibit E.
5. The County has signed and filed with the County Recorder for Collier County a
release of its lis pendens attaching the legal description that is attached as Exhibit D.
6. The County has delivered at least one manually executed counterpart of each
document listed in #1 - #3 above to the representative of Cummings & Lockwood who will be in
attendance at the April 14 meeting of the Board.
If the Board does not approye the Agreement or if any of the conditions listed in #1-#6
aboye is not met by the close of business on April 17, 2009, the County Attorney's Office is
instructed to return the Payment Check and the copies of the Agreement executed on behalf of
the Fund to the undersigned.
Please confirm the acceptance by the County Attorney's Office of the terms of this
escrow by signing in the space provided below and returning a copy of this letter to me by fax or
pdf. Thank you for your assistance.
Very truly yours,
Peter F. Olberg
80447211.1
Agenda Item No. 16K4
April 14, 2009
Page 19 of 39
Item # 10N
September 23, 2008
Page 1 of 18
EXECUTIVE SUMMARY
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 hetween Collier County and CEI/Kensington, Ltd., for the
SaddlebrooklPeUcan Pointe Phase I Apartments, to the Office of the County Attorney to
inItiate any and aU legal action including, but not limited to, lien foreclosure, if necessary
OBJECTIVE: Recommendation that the Board of County Commissioners direct the COWlty
Manager, or his designee, to forward the maner of the default of the Impact Fee Deferral
Agreement between Collier COWlty and CEl/Kensington, Ltd., for the SaddlebrookfPelican
Pointe Phase I Apartments, to the Office of the County Attorney to initiate legal action, up to
and including lien foreclosure.
-
CONSIDERATIONS: On December 16, 1997, the Board of County Commissioners entered
into an Agreement with CEl/Kensington, LId. for the deferral of impact fees in the amount of
$666,752.80 for 140 affordable rental units at SaddlebrookIPe1ican Pointe Phase I. In
accordance with the deferral agreement, the tcrm of the deferral was for a period of six (6)
years from the date of deferred impact fees for SaddlebrooklPelican Pointe Phase I. The first
building permit for the subject development, for which impact fees would be due and payable
but for the deferral agreement, was issued on October 9, 1998. Therefore the term of the
deferral expired on October 9. 2004 and was not subsequently extended. In addition,
concurrent with the execution of the deferral agreement, a lien was placed on the subject
property in the amount of the defcrred impact fees as security for Collier County's interest and
is still in place on the property record,
On June 17, 2008. staff from the Housing and Human Services sent correspondence notifying
the representatives of CEI/Kensinb'lOn, Ltd, of the past due status of thc impact fee deferral.
Additionally, between the first correspondellce and the Final Notice of Impact Fee Statement
prepared on August 27, 2008, staff from the Housing and Human Services Department and the
Business Management and Budget Office have made repeated efforts to contact the company
representatives and have been unsuccessful.
The Final Notice of Impact Fee Statement was prepared and sent August 27, 2008 via certified
mail, with a return receipt requested, As required by Section 74-501 (a) of the Collier County
Code of Laws and Ordinances, the past due impact fees are required to be paid in full within
thirty (30) calendar days of the effective date of service of the Final Notice of Impact Fee
Statement. In the eyent that payment is not received, 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.
,',GB,lCa [tem t~o. 'I '3K4
- April 14,2009
Page 20 of 39
Item # 10N
September 23, 200"
Page 2 of 18
To date, payment has not been receiyed by Collier County nor has there been any
communications or correspondence from or on behalf of eEl/Kensington, Ltd. to Collier
County regarding this matter.
FISCAL IMPACT: Upon reaching the term of the Deferral Agreement, $666,752.80 became
due and owing to Collier County, 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 six-
year tenn jeopardizes the County's ability to provide capital improvements, necessitated by
growth, in a timely manner.
Filing and other associated fees will be approximately $1,000. The County will seek to recover
all costs in initiating and pursuing this swt.
GROWTH MANAGEMENT IMPACT: Objective 1.2 of the Capital Improvement Element
(CIE) of the Collier County Growth Management Plan (GMP) stales: "Future development will
bear a proportionate cost a/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 offordahle-worliforce housing equitablv
throughout the county where adequate i/~/rastructure and services are available. Programs
and strategie.'1 to encourage affordable-u'orliforce housing development may include, but are
not limited 10, density by right within the Immokalee Urban area and olher density banus
provisions, impact fee deferrals, cxpeditl!d permitting (fast tracking), public.pril'Ule
partnerships, prol'iding technical assistance and intergovernmental coordhwtion. "
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 term was consistent with the Growth Management Plan and the impact fee regulations in
place at the time of execution of the Agreement. However, failure to pay the impact fees that
arc now due and owing has a direct impact on each of the impact fee trust funds that originally
provided a deferral of impact fees.
LEGAL CONSIDERATIONS: The County Attorney's office requests immediate approval
by the Board of County Commissioners so as not to jeopardize any and all legal and equitable
remedies the County may have availabie. - WEM
RECOMMENDATION: Recommendation that the Board of County Commissioners direct
the County Manager, or his designee, to forward the maner of the default of the Impact Fee
Deferrdl Agreement between Collier County and CEI/Kensington, Ltd" for the
SaddlehrookIPelican Pointe Phase I Apartments, to the Office of the County Attorney to
initiate any and all legal action including, but not limited to, lien fOicclosure, if necessary.
PREPARED BY: Amy Patterson. Impact Fee and Economic Development Manager
Business Management and Budget Office, CDES
p,genda Item No. 16K4
.I\pril 14. 2009
Page 21 of 39
Item # 10N
September 23, 2008
Page 3 of 18
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 CEl/Kensington, Ltd., for the SaddlebrookiPelican Pointe Phase I Apartments,
to the Office 01 the County Attorney to Initiate any and all legal action Including, but not limited to,
lien loreclosure, II necessary_ (Amy Patterson, Impact Fee Manager)
Prepared By:
Department Date
CDES Budget 9/9/200812:15:41 PM
Approved By:
Department Approval Date
CDES Budget Approved 9/9/2008 3:14 PM
Approved By:
Department Approval Dale
County Attorney Approved 9/9/2008 4:53 PM
Approved By:
Department Approval Date
CDES Approved 9/11/20083:52 PM
Approved By:
Department Appreval Date
Office of
Management Approved 9/13/20082:33 PM
and Budget
Approved By:
Depanment Approval Dale
County Approved 9/14/200812:59 PM
Manager's Office
r- A.TIACHMENTS;
Name;
[) ~lollli12L
w looar.DOC
Q ~QQK
Aareement J1d!
o Saddlebrook
_A.esoh.Jtion 1997 ad!
o ~ook NQ.t!ce..DJjf
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Description:
Agenda Item i-4o. 16f\4
April 14. 2009
Page 22 of 39
Item # 10N
September 23. 2001'
Page 4 of 18
Type:
Executive Summary - Delerral Agreement Default
Agreement
Deferral Agreement
Deferral Resolution 1997
Final Notice of Impact Fee Slatemant
Executive Summary
Backup Malerial
Backup Material
';gerida Item i~o. 16K4
April 14. 2009
Page 23 of 39
S~temb~r 23,
t'tlJA 5 0' 18
AGREEMENT FOR 100"1. DEn:JtRAL OF COLLIER COUNTY IMP....CT FEES
This Agreement for the Defemll oflmpact F.... enter<d into thiJ~ of ~ -. J'. d f
1991, by Illd belw= the Boord of County Commissionera of Collier County. Florida,
hereinafter ",fc:m:d to II '"C0I.lN'IY' IIIld CEllKensinJlOl1, Ud.. hereinafter ",ferm! 10 as
'"OWNER",
WHEREAS, Collier County Ordinance No. 88-91. .. amended. the Collier County
Lunary Syllem tmpocl Fee 0rdirwIce; Collier COIUIty Ordinznee No. 88-96, as amended. the
Collier County Pai:s soo Ree7eZtionzl Foeilid.. Impoct Fee Ordm-e; Collier County
Ordinance No. 91-71, II amenclc:d, lhe Colli... County Emetzency MocIical SetviCCl S)'1lem
Impact Fee Ordinznc:e; Collier County Ordi_ No, 92-;z2, II amenclc:d, the Collier County
Rold Impact Fee OrdilWlCe; Collier COIInty Ordinance No. 90-86. II amendocl. the Collier
County Water System Impact For: Ordinance; Collier county Ordinance No. 90-87. as amended,
the Collier eounty Sewer System ImplC! F... OrdilWlee; """ Collier County Ordinance No.
92-33, II amended, the Collier County Eduezlional Foeilili.. S)'1lmlmpact Fee Ordilltll... as
they may be flll1her amendocl from time 10 lime hereilllfter col~jvely ",fcmd to IS "Impacl
Fee Onlinanoe", provide for defemls of implCt fOOl for newv owncr-oecupiocl dweilinl onits
qualifying II a/Tordable housins; and
WHEREAS, Coloni.1 Equities. I... is the duly authorized genenol panner of
CEIIKensington, LId. with Richarcl Sbpo II President; and
WJIEIUU.S. CElIKerWnglOll. Ud. .... opplied for . deferral of impa:1 fees .. requin:d
by the Impa<l fee Ordinsn<:e, a copy of ooid opplieotion iJ on liIe i"the Hawing oncI Urban
Improvement Deplrlment; and
WHEREAS, the County Adminillrator .... his dcoilllee has reviewed the OWNER'.
apVlic.alion and has rounc.l that it complies with the requirements for an affordable housinl
deferral; orimpacl r..... established in the Impact Fee Ordinance; and
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/\genda :tem r~(J. 16f<4
April 14. 2009
Page 24 of 39
16A 3
WHEREAS, the implCl fee defem! shall be praentod in lieu of payment of Ibe
requisite impact fees subject to .ali.fac:tion of all criteria in the Impact F= OrdilWlCe qu.lifyins
Ibc pmjeet IS elil'Dle for an impac:t fee deferral; and
wNtW}I,;W:cotlMrY ...' ... ""'jIlf'tIIpIIllftle ..lilt _~ Six
Handnd .... Sidjo~"n J ~Sena I' , " 'f\tY1..OoiIanMd 1IJItW'!S66&;'1!2.aOI
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...... . ..._....,"'....'iIl\lI!IIiIt'.._r'<-h'll"dIcMMIlIe,1'IlIlii!'f~ed
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h1~IIIJ~~'~1IlIlIWm. 'I'...til'd='"~'""~,__",,,~,
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WHEREAS. tbe Impact Fcc Ordinanc:c n:quin:a lba1 the OWNER enter into an
Agrmnenl with the COWIY.
NOW, THEREFORE, in _"-lioft of the foresoilll rccilah. the p:lrties covenant
and .gn:e as follows:
I. RECITALS INCORPORATED. The forqoing nx:itals arc",," and =t and
shall be incorporated by reference herein.
2, LEGAL DESCRlmOl'I. The I<PI dcocription of lbe dwelling units (the
"Dwelling Unil") is IlIaCbaI hereto IS Exhibit "A. ancI incorporated by rcfcn:nc:e bcrcin.
3. TERM. OWNER asroea lbal the Dwtollins Unit shall remain .tTonlable and .hall
be offered for rent in accordance wilb the Jtandards let fonh in the appendi. to the Impact Fee
Ordinance for a minimum of fifteen (I S) ~ commencing from the Wlte . ccrtificzte of
oecupllney i. i..ued for (he Dwelling Unit.
4. REPRESENTATIONS AND WARRANTIES. OWNER "'I'=t. and wanants
the following:
a. The Dwelling Unit WlI be the permlJlcnl residence of the occupanVtcnant.
b. The hollJChold renting tho o..ollilll Unit must have. very low or low income level,
Il the c:ommenumenl of the leosehold ancI duration thereof, as !hat term is defined in
tho Appendices to Ihc rcspcctivc 1mpac1 Fee Ordinances and the monthly rent must
be within the affordable housing suldelineo ertsbliobcd in the Appendi... to the
respective Lrnpact Fee Ordinances.
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.I\genda Item No. 16K4
April 14. 2009
Page 25 of 39
16A - 3
c. The Dwellin. Unit ohIIJ n:main affordable for at 1_ filb:cn (I S) years from the date
the ccrtir_e or occupanc:y wa iuued.
5. SUBSEQUENT RENTAL OR TRANSFER. If OWNER rcnllthe Dwcllin. Un;1
oultjcct to the implCl foe clcrcml to . IU~ renier, the Dwe/lin. Unil lIIan be rcnicd only 10
houoeholds meclin.lhe criteria lei rotlh in the Impact Fee Ordinance. The impacl foes defemd
"""II be immediately repaid to the COUNTY upon the dicmtinu..... or use or the Owclli"l
Unit.. alTordable hourina. or ai. )Un ITom the dale such impact fees an: dcremd. whichever
_ flTOl. OWNIiR aJll'C'Cl thai even thcuah the implCl roes how been repaid 10 the
COUNTY. the OWNER will utilize the Owellina Unit Cor affOrdable housin. ror aI least fift....
(IS) )Un from the date the ecnir..... or occupancy WIS issued ror the OwcIlin. Unit_
6. LIEN. Tlte dermed impocl r.... """11 be a lien upon the propelly which lien may be
foreclosed upon in the event ofnon-cornplianal witll the requircmenll oflhis Agreement.
7, ....NNUAL REPORT. Annually. the OWNIiR of the Dwellin. Unit shall provide 10
the County M.....er an al!ldavil or campli.... with the affordable housin. qualilicali"!'critcria
and &l2ndardJ set forth in the Impact Foe OnIinanu. Said .mdavil must be filedwilliin thirty
(30) days of Ihc anni....-y dale of Ihc i....... of the ccnificale of occupancy. If the income or
any unit renter which orisinally qualified IS very low or low Income 1"",,1 IS defined in the
""J'CClivc Appendi. 10 the Impact Foe 0nIiJlIIlCC i~ by more than rony pcr=ll (40%)
above Ihe low income level described in Ihc appendi.. then the per unit defemd impact r~ on
Ihc non~mpliance unit IlWI become imn>edWcly due and payable by OWNER or. in the
alternalive. the OWNER shall ha.e ninety (90) days 10 comply wilh the A/fordable Housina
auidelincs ... follh in Ihc RIpCClive Appendices.
8. RELEASE OF LIEN. Upon aatiafaelOry comp!etion of the Agreement "",uircmcnts.
and upon payment of the defaml implCl fea. the COlJ1oITY shall. al th. capen.. of Ihe
COUNTY, n:eord any nee...." documenta1ion cvidencins such paymen~ including but not
limited to. . "'I.... of lien.
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9. BINDING EFFECf. This AjI........t ohaIl be binding upon lhe ponies ID lid.
Agrccmcnl, their bcil'l, II.. [jJ ,...... _p !Jl!he cue of sale or lnNCcr by gift DC !he
o....lIin& Unit, the ori,pnaJ OWNER IIIa1ll'C111llin liable far the illlplld f.... clefcmd IInlil said
imp"", rees ""' paid in /bIt
10. RECORDING. Tbio A".........1I11ta11 be rcconlccI by OWNER ot the """"""" of
OWNER iD the OfficW Ra:onls of CoUier County, Florida wilbin sixty (60) days aIlcr exccutioa
oflhil Aarcemcnt by the ClWTDUIlI oC1he1lolnl of County Commiaioncn.
II. DEFAULT. OWNER ohaIl be in defaull oflhd A~t (I) whCR: OWNl!ll
flilt 10 =t the ",uj>Wt)' in O(QQjdaliCC with the affordable boasinc Ilmdardo ..... qaaliflCaliDll
crilm. ClUblilhcd in the Imp... Fcc OnIin1nce and thcIallcr !lilt 10 pay 1he impact rea dae
within Ihirty (30) dayI or notice DC said lI01H:OIIlptianc:e, or (2) wh.... OWNER violates one of
the .ffordable housinS quaIific:mon criteria in the Impact Fcc OnIil\lllCe for a periocl of fifteen
(IS) dayI aller noeioc or violation. HOW<:YCI'. willi reopccllD the Annual Rcpon, OWNER sball
not be in default DC Ihia Apoemcnt lIIIlil . fifteen (IS) day pee perioclli'oln the due dale of the
report hu lapsed in lhe """'" the OWJolEJt i. in defaulL
12. REMEDIES. Should tho OWNER of the property Cajllo eomply with tho oaicI
qualification mtc:ria at any Ii... durin& lbe fifteen (IS) year period or Ihould OWNER vioJatc
any provisions of lbi. Asrocmcnt. tho impoIct C_ dofcmd thalI be poid in full by OWNER
within thirty (30) clays of oaicI JlOIl.COIIIpU_. OWNER aa::- lhal the iIIlpIICt fees cIofcmd
ohaIl c:onttitutc a lien on lhc JlI'llPC'tY COIIIlIIIIIlCin& on lhe effective date of Ihia asr=nont .....
continuins until paid. Such lien sball be IlIpDrior and JIoo-..:.unt 10 the interest in the Owollins
Unit of IOY owner, I...... tenant, monppo, or cro- pcImn Clleq>l the lien for County Uxcs
IIIld lhall be on pariI)' willt lhc lien of Ill)' IUC!I CDIlIlty taXell. Shoulcllbc OWNER be in dcr.alt
orlhi. Asrecmcnt and lhe dcflllll it DOl cured within thirty (30) days after writlen ootice \0 the
OWNER. Ille Board may bring . civil .c:tion ID cnforee the ApccmenL In tddition, the Ii... may'
be fcmdOlCd or olhclwiJc cnCon:cd by the COUNTY by ldion or tuit iD equity u for the
CorcelOlU/1l or. monpp on roo! property. Thit ranlldy it c:umulllivo wilb 111)' other right or
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/\oenda item No. 16K4
.. April 14, 2009
Page 27 of 39
16A 3
rmnedy available Ie lilt COUNTY, TblI BoanIIhaII .... OIIlilted Ie n:cavor all f_ lIIld COllI,
incIudinllltol1lt)". f.... plus in_.lIIt Ilal1IkJcy lite for judgments ealcuIated on . calC1ldar
cIsy basil until pilei.
IN WITNESS WHEREOF, !be ...m- haw cxocuted Ibis AJI1=lenl ror defeznl or Impact
F_ OIl !be date md yat 611I ~ wriUal.
(2) Wi........:
OWNER:
CEIJICENSINGTON, LID.
By: COLONIALEQUITIES,INC
ITS GI!NJ!RAL PARTNER
Yna.n",; .,b,,, ~AA'K.J
Prinl NIIIlt /nA-.l Y (;,,-,, ~'" 1M
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Prinl Name OJIotu A1 ;<<""KAloe-
h~..J JJ.l?m- .t:.>...
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COUNTY:
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BOAJU) OF COUNTY COMMISSIONI!RS
OF COUJI!R COUNTY. FLORIDA
By:4f~~~
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Approved II '" farm lIIld
lepJ IUffic:ieney
tir' rI( . 'I ,Aff1A 4Y
eidl F, AlbIon
Aslill&llt Caunry Attorney
s
J.~,genda Item No. 16K4
April 14. 2009
Page 28 of 39
ST ATE OF ~- ttltAS
COUNTY OF DALUS
The (oresoinl inmumen! WI' acIcnowledaed before me Ihis .s day or ~
1997 by Ilichanl Shaw. Presidmt CoIonill Equklcs, GencnI Partner of CEJJlCen.inlton. Ltd. on
~ pC the Fip, He it ~Iy known 10 me or hu procluce:l
llU~ \, t "tJ ~ 0( IdentifJCUion) IS identifiaJion.
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Sip oCpenon . aclalO..led
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NlIIlo oC Aebowled.... Typed. Prinrecl or Sumpcd ~~
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Agenda Item No. 16K4
April 14, 2009
Page 29 of 39
218181T 4
TIIEPAU\1S
16A }
lLGA.L Df"..sClW'l10N
A pared of IUId'IO~. 'm SCClioo 34, ToYo'llShip ~9 # Kalis. 26 F.ut.,
CoDicc CoW1\y.l"lorida,~ more: poni<uIoulycbaiboclur. wo,
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Commmce .. tbt s....1.out coma of \he WCSl 1/2 of lhc so.~""o" 114 oCSoc:IJon
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Agenda item No. 16K4
April 14, 2009
Page 30 of 39
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Agenda Item No. 16K4
April 14, 2009
Page 31 of 39
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RESOLUTION NO. 97- -A6.L
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS, COLLIER COUNTY, FLORIDA
AUTHORIZING THE DEFEIlRAL OF LIBRARY
SYSTEM IMPACT FEES, PARKS AND RECREATIONAL
FACILITIES IMPACT FEES, ROAD IMPACT FEES
WATER IMPACT FEES, SEWER IMPACT FEES, '
EMERGENCY MEDICAL SERVICES IMPACT
FEES, AND EDUCATIONAL FACILITIES SYSTEM
IMPACT FEES FOR SADDLEBROOKIPEUCAN POINTE
PHASE I, A 140 UNIT AFFORDABLE RENTAL IIOUSING
PROJECT.
WHEREAS, Collier County has recognized and attempted to address the lack of adequate and
affordable housing for moderate, low, and very low income households in Collier C!)unty and
the need for creative and innovative programs to assist in the provision of such housing by
including .several provisions in the Collier County Growth Management Plan, including:
objective 1.4, policy 1.4.1, objec,live 1.5, policy 1.5.2, policy 1.5.3, policy 1.5.4, policy 1.5.5.
policy 1.5.6; object 1.6, policy 1.6.3; objective 2.1, policy 2.LI, policy 2.1.2, policy 2.1.3,
policy 2. 1.5, and policy 2.1.6 of the Housir.g Element; and
\VHEREAS. CElfKensmgton. Ltd., a Florida Limited Partnership, will undertake the
dev~lopment of SaddlebrookIPeJican Painte Phase! Apartments, a one hundred and forty
(140) unit affordable rental bousing commumty on a site located in Collier County, Florida, of
which CElfKensington, Ltd. is owner; and
Vv1-IEREAS, on November 2B, t 997, an application was filed with the County
Administrator for the def,:m.I of Collier Counly lmpBct fees for the SaddlebrookfPelican
Pointe Phase I project consistent with the requirement!> of the County impact f~ ordinances;
and
WHEREAS, in accordance with Section 3.4 of the Library System Impact Fee Ordinance,
OTdinance No, 88.97, as atT',ended~ Section 4.05 of lheParks and Recreational "Facilities
Impact Fee Ordinance, Ordinance No. 88.96. as amended; Section 3.04 of the Ro<\d Impact
f'ce Ordinance, Ordtmmce No. 92-22, It.S amended; Coilj(:;t COUllt)' OnJinancc No. 90-86, as
amended, the Collier County Water Syst.e:m Impact Fee Ord.immce; Collier County Ordinance
No. 90~87, as amended, the Collier County Sewer System rmpact Fee Ordinance; Section
3,05 of the Emergency Medical Services Syslcm Impact Fee Ordinance, Ordinance No.9}. 71,
as amended; and Section 3.05 of the Educational Facllitie& System Impact Fee Ordinance.
Agenda Item No. 16K4
,
Iten\~ of 39
September 23, 2008
Page 14 of 18
I
Agenda Item No. 16K4
!~priI14, 2009
Ite~"O>>9fOf.i3 of 39
September 23,2008
Page 15 of 18
Ordinance No. 92-13, as amended, an applicant may obtain a deferral of one hundred percen1
(100'%) of impact fees for a period of six (6) years by qualifying for said deferral~ and
WHEREAS. SaddlebrookIPelican Point Phase J nas qualified for all impact fee
deferral based upon the following representations made by CE1IK.ensington. Ltd.
A. The Dwellmg Unit shall be the permanent residence of 1h~ occupant/tenant
B. The household renting the Dwelling Unit must have a very low or low income
level, ,)t the cummt:n<:emtmt uf lhe iCll.schuld and duration thereof. as that tenn is
defined in tbe Appendices to the respective Impact Fee Ordinances and the
monthly rent must be within 1he affordable bousing guidelines established in the
Appendices 10 the respecLive Impact Fee Ordinances.
C. The Dwelling Unit shall remain affordable for lit leut fifteen (1 S) years from the
date tbe certificate of occupancy WI$ issued_
NOW, THEREFORE, BE IT RESOLVED BY TIll! BOARD OF COUNTY
COMMISSIONERS OF COLLIER COUN1Y, FLORIDA. TlIAT,
I. The B~a.rd of Co~ty Commissioners bereby authorized thl!! deferral by Collier County of
tbe following impact fecs in the amounts listed below for the one hundred and forty (140)
affordable housing units to be developed by CEI/Kensington, Ltd. on tbe Saddlcbrook
Village pun site R.90-6. as identified in Exhibit "AM:
Eaeh Unit 140 tln'u
A Library System Impact Fees $ 180.52 $25,272.80 /
B. Road Impact Fees 935.00 130,900.00-- . .
C. Parks & Recreation Impact Fees: ,/
Community Parks 399.00 55,860.00 /
R egjonal Parks 179.00 25,060.00
D. Emergency Services lmpJct Fces 2.00 280.00 /
E. School Impact Fees: 827.00 115,780.00/
F Water Impact Fees 900.00 126,000.00 ./
G. Scwer Impact Fees ~ lR7 600 00 1,;-
TOTAL IMPACT FEES TO BE DEFERRED $4,762.52 $666,752.80
2. Deferral of said impact fees is subject to and contingent upon execution and recordation of
an Agreement for DeferraJ of Collier County Impact Fees which shall be eatered into
between the Rpplicant and County.
This Resolution adopted after motion, second and majority vote favoring same.
DATED,~/~//ff'7
AlTEST:. ~...'~.
Dwight E. Brock, Clerk
,- ',.;'
)~:r~~:~ ~o~f 74e
and lega.! suffic1ensY:
{:L /.., j ,1Vl'L/t~
Heidi F. Ashton
Asslstant County Attorney
jdlf7uddk::brookJpcli~
item No. 16K4
t\pi"iI14,2ClCJ9
Iter::;aff~ B~ oi 39
September 23, 2008
Page 16 of 18
COLLIER COUNTY
BUSINESS MANAGEMENT AND BUDGET OFFICE
Agenda Item No. 16K4
April 14, 2009
Page'35oT39--
Item # 10N
September 23, 200
Page 17 of 18
IMPACT FEE SECTION
2ROO N, Horseshoe Drive' :-Japb, Florida .34104 . (239) offi3-2369 . Fax (239)..ofllJ-240S
6lS::>- ;).sl.
FINAL NOTICE OF IMPACT FEE STATEMENT
CER TIFlED MAIL #7007 2560 000 I 1485 3120
RETURN RECEIPT REQUESTED
August 27, 2008
Mr. Richard Shaw, President
CEIlKensinglOn, Ltd.
1 71 03 Preston Road
Dallas, Texas 75248
RE: Saddlebrook/Pelican Pointe Phase I Village Impact Fee Deferral
Dear Mr. Shaw:
In follow up to the notice sent to you on June 17, 2008, the Impact Fee Deferral
Agreement for Saddlebrook/Pelican Pointe Phase I became due and payable on October
9, 2004. Collier County staff has made numerous attempts to contact you and your
associates by telephone in order to discuss this matter and facilitate a resolution.
The impact fee deferral was executed on December 16, 1997 in the amount of
$666,752.80 as follows:
Community Parks Impact Fees
EMS Impact Fees
Library Impact Fees
Regional Parks Impact Fees
Road Impact Fees
Sewer Impact Fees
School Impact Fees
Water Impact fees
$ 55,860.00
280.00
25,272,80
25,060.00
130,900.00
187,600.00
115,780.00
126.000.00
TOTAL DUE:
$666,752.80
c
l~~
c
y
;'CJenda Item No. 16f<.4
, ADr;1 14. 2009
Page 36 01 j~ J
ltem#10N .
September 23, 200 .
Page 18 of 18
In the event the Impact Fees are not paid in full within thirty (30) calendar days of the
effective date of service of this Final Notice of Impact Fee Statement, 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 as required by
Section 74-501(a) of the Collier County Code of Laws and Ordinances, In addition,
concurrent with the execution of the deferral agreement, a lien was placed on the subject
property in the amount of the deferred impact fees as security for Collier County's
interest. In the event that the impact fees are not paid, as outlined aboye, the County will
proceed with its requirements to foreclose on the lien,
We respectfully request that payment of the sums due be made promptly to Collier
County. Payment should be made to Board of County Commissioners and mailed to:
Amy Patterson, Impact Feel Economic Deyelopment Manager
Collier County Government
Community Development and Environmental Services Division
2800 North Horseshoe Drive
Naples, Florida 34104
I can be reacbed at 239.252.5721 if you have any questions or require additional
information.
Sincerely,
:!:g~
Impact Fee and Economic Development Manager
cc: Jeffrey A. Klatzkow, County Attorney
Joseph K. Schmitt. AdminiStrator, Community Development and Environmental Services. Division
Marcy Krumbine, Director. Housing and Human Services
Garrett Mul1ee~ Manager. Business Management and Budget Office
Frank Ramsey, Housing Manager
I
"' '-Ap~il 14. 2009
Page 37 of 39
September 23, 2008
CHAIRMAN HENNING: Okay, all right. Be back at 4: 1 O.
(A brief recess was had.)
Item #lON
THE MATTER OF THE DEFAULT OF THE IMPACT FEE
DEFERRAL AGREEMENT BETWEEN COLLIER COUNTY AND
CEI/KENSINGTON, LTD., FOR THE SADDLEBROOK/PELICAN
POINTE PHASE I APARTMENTS, TO THE OFFICE OF THE
COUNTY ATTORNEY TO INITIATE ANY AND ALL LEGAL
ACTION INCLUDING, BUT NOT LIMITED TO, LIEN
FORECLOSURE. IF NECESSARY - APPROVED
CHAIRMAN HENNING: Everybody take their seats, please.
The next item is to recommend that the Board of Commissioners
direct the county manager, or his designee, to forward the matter of
default -- default of impact fee deferral agreement between Collier
County and CEI/Kensington, LL -- Limited, for the Sandlebrook (sic)
Pelican Point, Phase I apartments to the Office of the County Attorney
to initiate any legal action including, but not limited to, lien
foreclosure, if necessary.
COMMISSIONER COYLE: Motion to approve.
CHAIRMAN HENNING: Motion by Commissioner Coyle,
i I second by Commissioner Henning.
i COMMISSIONER FIALA: Can I ask you what the motion was?
COMMISSIONER COYLE: To approve, to take all necessary
legal action in order to recover the impact fees, deferred impact fees
that have not been paid and they have not been responsive.
COMMISSIONER FIALA: To take all necessary methods to
collect the impact fees on Saddlebrook, right?
COMMISSIONER COYLE: Yep.
CHAIRMAN HENNING: Okay. Commissioner Halas?
Page] 88
'"_..u~ ,,~.., ,,_. .",,,
I\pril 14, 2009
Page 38 of 39
September 23, 2008
I i
COMMISSIONER HALAS: My question is, how many of these
do we have out there presently? Obviously we had one this morning
that hadn't started paying impact fees. Do we have some more that are
in the bushes?
MS. PATTERSON: For the record, Amy Patterson, Impact Fee
Manager for Community DevelopmentlEnvironmental Services.
Besides Brittany Bay that we saw this morning, we also have
falling about six months behind is Brittany Bay, Phase II, which is
$1.2 million. Now Brit -- the people from Brittany Bay have not
addressed what kind of position they're in for that second phase, but
that is one that's imminent.
Also we have First Assembly of God coming forward in
November with -- their impact fee terms out, Saddlebrook, and then
there's a second phase of Saddlebrook which comes due towards the
end of 2009. It is under a different ownership than this Saddlebrook
as far as -- that's what we have as far as those older impact fee
deferrals that do not have any other additional security on the property
in the form of a treasury bill or anything else. They have liens that
secure the county's interest, but they don't have an automatic secured
instrument.
COMMISSIONER HALAS: Very interesting. Do you know
what the total is roughly? I mean, if you don't have it--
MS. PATTERSON: I don't have it offhand, but we are -'- we do
have a list which I can provide. It is millions, yes. It's $1.2 million for
Brittany alone. It's over 2 million for Saddlebrook.
COMMISSIONER HALAS: Okay. Thank you.
CHAIRMAN HENNING: Any further questions?
COMMISSIONER FIALA: A comment though.
CHAIRMAN HENNING: Yes.
COMMISSIONER FIALA: It looks like, being that we try and
be nice guys and extend these deferrals to people, it -- from this it
looks like they just take advantage of -- advantage of us and don't feel
Page 189
I
";;) ~
.
April 14, 2009
Page 39 of 39
September 23, 2008
they need to be paying these things at all. And maybe we're being a
little too lenient and a little too giving. Maybe we ought to recheck
that.
MS. PATTERSON: The opportunity is not available to them
anymore to have this type of deferral. All of our deferrals are now
secured with additional security instruments, so there's not a question
of whether or not they'll pay. Wben the term of the deferral is over,
there's an automatic security instrument that kicks in, in the fonn of a
tri-party agreement.
So what we're dealing with are these older deferral agreements
that, for various reasons, or whatever reasons, did not have security
instruments in place.
COMMISSIONER FIALA: Okay, thank you.
CHAIRMAN HENNING: Any speakers?
MS. FILSON: No, sir.
CHAIRMAN HENNING: All in favor ofthe motion, signify by
saymg aye.
COMMISSIONER COYLE: Aye.
COMMISSIONER HALAS: Aye.
CHAIRMAN HENNING: Aye.
COMMISSIONER FIALA: Aye.
COMMISSIONER COLETTA: Aye.
CHAIRMAN HENNING: Opposed?
(No response.)
CHAIRMAN HENNING: I apologize. I went out of order.
MR. MUDD: That's okay.
CHAIRMAN HENNING: 10M.
Item #10M
RESOLUTION 2008-294: THE ANNUAL RATE RESOLUTION
TO SET LANDFILL TIPPING FEES, RECYCLING CENTER
Page 190