Agenda 04/28/2009 Item #16K 2
!<Jsnda Item ~,Io, 16K2
- ADril 28 2009
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EXECUTIVE SUMMARY
Recommendation that the Board of County Commissioners waive the potential appearance
of conflict in the retention of Gregory H. Woods, Esq., as lead counsel for Collier County
in the case styled G.L Homes of Naples Associates I/, Ltd. l'S. Collier COUllty, Case No. 09-
2451-CA, in the Twentieth Judicial Circuit in and for Collier County.
OBJECTIVE: Recommendation that the Board of County Commissioners waive the potential
appearance of a conflict in the retention of Gregory H, Woods, Esquire, as lead counsel for
Collier County in the case styled GL Homes o,f'Naplcs Associates II, Ltd vs, Collier County,
Case No, 09-2451-CA, pcnding in the Twentieth Judicial Circuit in and for Collier County,
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CONSIDERATIONS: The eounty has been sucd by GL Homes of Naples Associates 11, LId"
(hereinafter "G.L Homes"), whose claims are set fOlih in the attached complaint. Briefly stated,
the complaint alleges that G.L Homes and the County entcred into a Developer Contribution
Agreement ("DCA") in 2002 that was amended in 2006, The DCA provided that in exchange
for transportation concurrency vesting, the Developer would construct the Logan Blvd. extension
between Vanderbilt Beach Road and [mmokalee Road, and would be reimbursed for its cost of
constructing Logan Boulevard through impact fee credits, The construction of 850 units was
contemplated, but not built. The Developer is looking to be rcimbursed in cash payment totaling
$10,060,515.96 for the costs it inculTcd in this road projcct
The eounty Attorney's Oftlce is unable to reprcsent thc eounty in this matter as two present
assistant county attorneys werc involved in the negotiation and drafting of these "".gr'eements and
are thus likely witnesses in this matter. The County AtlOrney's policy is to slowly shift its
outside counsel to local law fimls, and in keeping with this policy has retained as lead counsel
local trial counsel Gregory N, Woods, Esq" of Grant Fridkin Pearson Athan & Crown, P.A. to
represent the County,
Gregory N. Wood's represents Lowe's Home Improvement in a civil case entitled Lowe's Home
Centers, Inc, v, Kohl's Department Stores, In('" ease No, 08-6373-CA, Lowe's brought suit
against Kohl for lost business inculTed whcn a median opening was closed as a rcsult ofa Kohl's
Department Store opening off of Naples Blvd, Kohl's brought Collier County into the suit,
claiming that the median closing was at the County's requcst Although the median has been
reopened. the case continues,
Lowe's Home Improvement is not opposed to Mr. Woods reprcsenting the County and is not
presently aware of any basis for suing the County. The Office of the County Attorney does not
belicve there is a conflict retaining Mr. Woods to represent the County in this matter.
FISCAL IMPACT: There is no fiscal impact associated with this Executive Summary,
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GROWTH MANAGEMENT IMPACT: Nonc,
LEGAL CONSIDERA nONS: This is a regular maller requiring simple majority vote,
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RECOMMENDATION: That the Board of County Commissioners wmve the potential
appearance of contlict in the retention of Gregory H, Woods, Esquire, as lead counsel for Collier
County in the case styled GL Homes ,,{Naples Associates II, Lid v, Collier COllnty, Casc No,
09-2451-CA and consents to ML Woods continued representation in Lowe's Home Centers, Inc,
v. Kohl's Department Stores, lnc" Casc No, 08-6373-CA.
PREPARED BY: Jeffrey A. Klatzkow, County Attorney, and
Jacqueline W, Hubbard, Litigation Section Chief
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Item Number:
Item Summary:
Meeting Date:
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3 of '11
COLLIER COUNTY
SOARD OF C')UNTY COMMISSION::F:S
16K2
ReCOml"'le~ldatiCin that (!,e Board of County Commissioners vvalve the potential appearance
of conflict In the retention of Gregory H Woods. :=sq as lead counsel for C')lIler County In
the case sty!ed GL. HOI~es of Naples AssociatEs II. Ltd vs Collier County, Case No. 09-
2451-CA, in the Twe:ltleth JudiCia! CirCUit In and for Collier COlinty
~:'28i2Ci09 9:0G:OO AM
Pre-pared By
Jacqueline W. Hubbard
County Attorney
Assistant County Attorney
Date
County Jl,ttorney Cfffice
4/16/2009 2:5i21 PM
Prrparrd B~'
Jeff Kiatzkow
County Attorney
County Attorne)'
Date
County Attorney Office
4116120092:57:21 PM
A.pproved B~'
Jeff Klatzkow
County Attorney
County Attorney
County Attorney Office
Date
4/1612009 4;3Q PM
Approve-d By
OMB Coordinator
County i\!1anag":'r's Office
OMS Coordinator
Date
Office oT Man:'lgE.'m~nt & 8udg:::t
4117;20098;29 AM
Apprun'd Ry
Marl: isaci'.son
County M<mager's Office
Budget Ana!yst
Dzte
Office of Management & budget
4/21!20C911:16AM
Appro"l'd 8~'
Leo E. O::hs, Jr.
Board of County
Commissioners
D0j)Uty County F!!anager
D::ts
County Mcmager's Offi~e
4::1/200-912:03 PiJi
t:,rr r~o ~1 ;3f(
23. 2DC
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IN THE CIRCUIT COURT OF THE 20TH
JUDICIAL CIRCUIT IN AND FOR
COLLIER COUNTY, FLORIDA
CASE NO,
09- ;)</ 5/-CIl-
GL HOMES OF NAPLES
ASSOCIATES 11, LTD" a
Florida limited partnership,
Plaintiff,
vs,
COLLIER COUNTY, a political subdivision
of Florida through its governing body,
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY
Defendant
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COMPLAINT
Plaintiff GL HOMES OF NAPLES ASSOCIATES 11, LTD. hereby sues COLLIER
COUNTY, a political subdivision of the State of Florida, through its governing body, the
BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, and avers:
Jurisdiction and Venue
1. This is an action against Defendant for breach of contract
2. G.L Homes of Naples Associates II, Ltd. ("GL Homes") is a Florida limited
partnership duly existing pursuant to the laws of the State of Florida, authorized to do
business in Florida, with its corporate offices located in Broward County and conducting
business in Collier County,
3. Collier County is a political subdivision of the State of Florida. The Board of
County Commissioners of Collier County ("Board") is a corporate body politic duly
formed and validly existing in the State of Florida, and the Goard is the governing body
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of Collier County, The Board is located in Collier County, Florida, Collier County and
the Board are collectively referred to as "Defendant" herein,
4, This Complaint asserts a cause of action for damages in excess of $15,000.00,
exclusive of interest and attorney's fees and costs; therefore, jurisdiction properly lies in
Collier County Circuit Court.
5, Venue properly lies in Collier County, Florida, because Defendant transacts
business in Collier County, Florida; the cause of action averred herein accrued in Collier
County, Florida; and the contract sued upon herein contains a venue provision providing
for venue in Collier County, Florida.
General Allegations
6. On or about May 9th, 2006, GL Homes and Defendant entered into a binding
contract titled "Amended and Restated Standard Form Collier County Contribution
Agreement For Road Impact Fee Credits" (further referenced herein as the
"Agreement"). The Agreement and its exhibits are attached hereto as Exhibit 1 and are
incorporated herein by reference.
7. The Agreement is recorded in the Official Records of Collier County, Florida in
Official Records Book 4034, at Pages 1820-1860.
8. Defendant represented and warranted that it had the full right and lawful
authority to enter the Agreement Exhibit 1, ,-r 20A
9, Defendant further represented and warranted that the execution, delivery, and
performance of the Agreement was duiy authorized and that no consent of any other
person or entity to the execution, delivery, and performance was required to render the
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Agreement a valid and binding instrument enforceable against Defendant. Exhibit 1, ~
20.B.
10. Under the Agreement, GL Homes agreed to construct roadway
improvements consisting of the extension of Logan Boulevard as a two (2) lane divided
roadway between Vanderbilt Beach Road and immokalee Road, (herein referred to as
the "Project"), and commonly referred to as the Logan Bouievard Extension. The
Project is further described in Exhibit A to the Agreement, which Agreement is attached
hereto as Exhibit 1.
11. In exchange for GL Homes' work on the Project, Defendant promised to
provide GL Homes with cash and credits for road impact fees; and in addition, certain
vesting rights for road concurrency.
12. More specifically, paragraph 8 of the Agreement provides:
The amount of road impact fee credits to which [GL Homes] shall be
entitled to under this Agreement (collectively "Road Impact Fee Credit
Amount") shall be equal to the amount of the Final Credit Estimate of
Probable Costs as amended from time to time. The Road Impact Fee
Credit Amount shall be earned and available for use by rGL Homes]
immediately upon (a) fGL Homes] expendinq any monies toward the
desiqn, construction and ultimate completion of the Project with the
amount of Road Impact Fee Credit Amount earned beinq equal to the
amount expended by fGL Homes] from time to time, and/or (b) the County
drawing against the Surety with the amount of Road Impact Fee Credit
Amount earned being equal to the amount of monies drawn by the County
against the Surety from time to time, and/or (c) the payment of any and all
monies by [GL Homes] to the County in the event the County is unable to
collect on the Surety and the County seeks and receives payment from
[GL Homes] in lieu of the surety. The Road Impact Fee Credit Amount
once earned by fGL Homes] shall not be subiect to forfeiture. reduction.
recission or diminishment reaardless of whether or not fGL Homesl
commits an Event of Defaul!. This paragraph shall survive the completion
of the Project and acceptance of the same by the County or earlier
termination of this Agreement. Exhibit 1, ~ 8 (emphasis added).
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13. Under the unambiguous terms of paragraph 8 of the Agreement, GL
Homes earned and is entitled to use of the Road Impact Fee Credit Amount
immediately upon expending any monies toward the Project.
14. Moreover, paragraph 20.C. of the Agreement requires that upon
completion and acceptance of the Project, Defendant shall:
a. issue the Road Impact Fee Credit Amount to GL Homes;
b. vest the Terafina Development with traffic concurrency for 850 residential
units for the initial five [5] year vesting period and the five [5] year
extension vesting period pursuant to the terms set for in this Agreement;
c. issue the Certificate of Public Facilities Adequacy for the initial five [5] year
vesting period and the five [5] year extension vesting period pursuant to
the terms set forth in this Agreement.
Exhibit 1, U 20.C.
15. An "Event of Default" occurred under the Agreement through a "breach by
the County to comply with any of the terms or conditions of this Agreement by which the
County is to comply.. Exhibit 1, ~ 21.8.
16. GL Homes fully performed and satisfied its obligations under the
Agreement by completing construction of the Project. The roadway constructed by GL
Homes and outlined in the Project was completed and open for public use on or about
October 2, 2007.
17. On January 29, 2008, Defendant issued a Certificate of Public Facility
Adequacy ("Certificate of Adequacy") to GL Homes. The Certificate of Adequacy is
applicable for 850 units and expires May 9,2016,
18. The Certificate of Adequacy was issued pursuant to the Developer
Contribution Agreement and was signed by Nick Casalanguida as the authorized agent
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for Defendant and as Collier County's Director Transportation Planning Department. A
copy of the Certificate of Adequacy is attached hereto as Exhibit 2.
19, GL Homes expended $10,060,515.96 on the design, construction, and
ultimate completion of the Project. Defendant verified and approyed this amount of
costs in accordance with the Agreement.
20, In that regard, on or about July 23. 2008, Defendant. through its agents,
sent an interoffice memorandum certifying the $10,060,515.96 in final costs incurred by
GL Homes for the Project. A copy of the July 23, 2008 memorandum is attached hereto
as Exhibit 3.
21. Defendant accepted GL Homes' performance and completion of the
Project. On or about September 2, 2008, Defendant, through its agent and
Transportation Planning Director Nick Casalanguida, acknowledged in a written
memorandum that:
GL Homes has satisfied their requirement to complete the Logan
Boulevard Extension from Vanderbilt Beach Road to /mmokalee Road.
Please issue transportation impact fee credits in the amount of
$10,060,515.96 for their use in accordance with our impact fee ordinance
and consistent with the approved DCA. I have also attached a copy of the
interoffice memorandum which verifies and approves the total project
costs.'
A copy of the September 2, 2008 memorandum is attached hereto as Exhibit 4.
22. Pursuant to paragraph B(a) of the Agreement, GL Homes has earned the
$10,060,515.96 Road Impact Fee Credit Amount.
1 The July 23, 2008 interoffice memorandum is attached to the Seutemher 2. 2008 corresoondence
and it is the same document referred to in paragraph]8 of this Complaint.' .
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23. Moreover, pursuant to paragraph 12 and 20.C. of the Agreement, and the
Certificate of Adequacy, GL Homes' Fesidential development is vested with traffic
concurrency for 850 residential units through May 9, 2016.
24. Defendant is unconditionally obligated to reimburse GL Homes for the
$10,060,515.96 earned Road Impact Fee Credit Amount as of October 1, 2008 under
paragraph 21.F. of the Agreement, which provides:
Notwithstanding that an Event of Default may have occurred, fGL Homesl
shall nevertheless be entitled to reimbursement from the County on or
before October 1, 2008, and the County shall be obliqated to reimburse
fGL Homes] on that date. for all amounts expended or incurred by fGL
Homesl under this AQreement in excess of the amount of Road Impact
Fee Credit Amount utilized by fGL Homesl. Such reimbursement
obligation of the County shall survive the completion and acceptance of
the Project by the County or earlier termination of this Agreement. Exhibit
1, ~ 21.F. (emphasis added).
25. Pursuant to the Agreement as outlined above, as of October 1, 2008, GL
Homes is entitled to receive, and Defendant is obligated to pay GL Homes all amounts
in excess of the Road Impact Fee Credit Amount utilized by GL Homes. GL Homes has
not utilized any of the Road Impact Fee Credit Amount. Because GL Homes has not
used any of the Road Impact Fee Credit Amount, said payment in the amount of
$10,060,515.96 was due to GL Homes as of October 1,2008. See Exhibit 1, ~ 21.F.
26, Despite accepting GL Homes' completion of the Project, Defendant has
refused to reimburse GL Homes for any of the $10,060,515.96 eamed Road Impact Fee
Credit Amount.
27. On or about October 21, 2008, GL Homes delivered a letter to the Collier
County Manager, Jim Mudd. The October 21, 2008 letter demanded payment from
Defendant for the $10,060,515.96 in verified and approved costs.
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28. Defendant refused to perform, and failed to reimburse GL Homes in
accordance with the Agreement. As a result, GL Homes delivered another letter to
Defendant on December 9, 2008, A copy of the December 9, 2008 letter is attached as
Exhibit 5. The December 9, 2008 letter again put Defendant on notice that it is in
default under the Agreement. The December 9, 2008 letter demanded payment of the
$10,060,515.96 within thirty days.
29. Despite GL Homes providing Defendant with written notices of default,
Defendant has still failed to reimburse GL Homes and it remains in default under the
Agreement.
30. Because of Defendant's refusal to reimburse GL Homes, GL Homes is
entitled to prejudgment interest as of October 1, 2008. See Exhibit 1, ~ 21.F.
31. GL Homes has retained the law firm of Holland & Knight, LLP to represent
it in this action and has agreed to pay its counsel a reasonable fee for services herein,
together with all costs and expenses of this litigation.
32. All conditions precedent to the commencement of this action, if any, have
been satisfied, discharged, or waived.
Count I . Breach of Contract
33. This is a cause of action by GL Homes against Defendant for breach of
contract.
34. GL Homes rea lieges and reavers each allegation contained in Paragraph
6 through 32 of this Complaint, as if fully set forth herein.
35. As more particularly described above, GL Homes and Defendant entered
a binding Agreement.
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36. GL Homes performed its obligations under the Agreement.
37. GL Homes is not in default of its obligations under the Agreement.
38. Defendant accepted GL Homes' performance, and is obligated to
compensate GL Homes for its performance under the Agreement.
39. Defendant, despite demands from GL Homes. has failed to reimburse GL
Homes for its costs associated with the Project.
40. Defendant is, therefore, in breach of the Agreement.
41. As a result of Defendant's breach of the Agreement. GL Homes has
suffered and continues to suffer damages.
WHEREFORE, Plaintiff GL Homes respectfullY requests that this Court enter
judgment against Defendant for compensatory damages, prejudgment interest, and
such other further relief as the Court may deem just and proper.
Dated: March 18, 2009.
HOLLAND & KNIGHT LLP
Attorneys for GL Homes of Naples Associates II, Ltd.
One East Broward Boulevard, Suite 1300
Fort Lauderdale, FL 33301
Tel: (954) 525-1000
, Fax: (954) 463-2030/
B~ ~ c /ld GcL_"
Ri hard C. utchi n . "'"
Florida Bar No.
John R. Chapman
Florida Bar No. 0047682 709360
# 6151772_v1
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