Backup Documents 05/26/2009 Item #10L
ORIGINAL DOCUMENTS CHECKLIST & ROUTIN~~ 'g~ I.
TO ACCOMPANY ALL ORIGINAL nOCUMENTS SENT TO -;7' ~ 'f ~
Print on pink p~rT1!a~ ~~~~C~~ll~~g~~d~~m~~~~~~~l~<?e~~~~ te:!:~~~c~~~o~~~~~J~~and 1 ign L
documents are to be fOlWarded to the Board Otlice only after the Board has taken action on the item) ~ ~
ROUTING SLIP
Complete routing lines # 1 through #4 as appropriate for additional signatures, dates, and/or information needed. If the document is already complete with the
exceotion of the Chairman's signature, draw a line through routing lines # 1 through #4, complete the checklist, and fOlWard to Sue Filson line#5t
Route to Addressee(s) Office Initials Date
(List in routing order)
1.
2.
3.
4.
5. Ian Mitchell, Executive Manager Board of County Commissioners
6. Minutes and Records Clerk of Court's Office
PRIMARY CONTACT INFORMATION
(The primary contact is the holder of the original document pending BCC approval. Normally the primary contact is the person who created/prepared the executive
summary. Primary contact information is needed in the event one of lhe addressees above, incluling Sue Filson, need to cmtact staff for additional or missing
information. All original documents needing the BCC Chairman's signature are to be delivered to the BCC office only after the BCC has acted to approve the
item.)
Name of Primary Staff Nick Casalnaguida Phone Number 252-6064
Contact
Agenda Date Item was 05-26-09 Agenda Item Number 16 B 10 IDe
Approved by the BCC
Type of Document Developer Contribution Agreement Number of Original I
Attached Documents Attached
1.
INSTRUCTIONS & CHECKLIST
Initial the Yes column or mark "N/A" in the Not Applicable column, whichever is
a ro riate.
Original document has been signed/initialed for legal sufficiency. (All documents to be
signed by the Chairman, with the exception of most letters, must be reviewed and signed
by the Office of the County Attorney. This includes signature pages from ordinances,
resolutions, etc. signed by the County Attorney's Office and signature pages from
contracts, agreements, etc. that have been fully executed by all parties except the BCC
Chairman and Clerk to the Board and ossibl State Officials.)
All handwritten strike-through and revisions have been initialed by the County Attorney's
Office and all other arties exce t the BCC Chairman and the Clerk to the Board
The Chairman's signature line date has been entered as the date ofBCC approval of the
document or the fmal ne otiated contract date whichever is a licable.
"Sign here" tabs are placed on the appropriate pages indicating where the Chairman's
si ature and initials are re uired.
In most cases (some contracts are an exception), the original document and this routing slip
should be provided to Sue Filson in the BCC office within 24 hours of BCC approval.
Some documents are time sensitive and require fOlwarding to Tallahassee within a certain
time frame or the BCC's actions are nullified. Be aware of our deadlines!
The document was approved by the BCC on 05-26-09 (enter date) and all changes
made during the meeting have been incorporated in the attached document. The
Coun Attorne's Office has reviewed the chan es, if a licable.
Yes
(Initial)
N/A (Not
A licable)
2.
3.
4.
5.
6.
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1: Forms/ COWlty Forms/ BCC Forms/ Original Documents Routing Slip WWS Original 9,03.04, Revised 1.26.05, Revised 2.24.05
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CLBRK TO THB BOARD
INTBROFFICE 4TH FLOOR
EXT 7240
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RECORDBD in the OFFICIAL RBCORDS of COLLIER COUNTY, FL
OS/29/2009 at 08:14AM DWIGHT B. BROCK, CLBRK
REC FEE 137.50
AMENDED AND RESTATED
DEVELOPER CONTRIBUTION AGREEMENT
MARBELLA LAKES
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THIS AMENDED AND RESTATED D~ELOPER CONTRIBUTION AGREEMENT
("Agreement") is made and entered into this~A,,4 day of .1Y\ (V--\. ,2009, by and between
Marbella Lakes Associates, LLC, a Delaware limited liability co~any ("Developer"), with an
address of 1600 Sawgrass Corporate Parkway, Suite 400, Sunrise, Florida 33323, and The Board
of County Commissioners of Collier County, Florida, as the governing body of Collier County
("County"). All capitalized terms not defined herein shall have the same meaning as set forth in
the Collier County Consolidated Impact Fee Ordinance, Ordinance No. 2001-13.
R E C I TAL S:
WHEREAS, Developer is the owner of those certain parcels of real property located in
the County, described on Exhibit "A" attached hereto and made a part hereof (the "Property");
and
WHEREAS, the Property is intended to be developed as a residential community to be
known as "Marbella Lakes" (the "Development"); and
WHEREAS, the current Planned Unit Development Document for the Development
(hereinafter referred to as the "PUD Document") was approved by the Collier County Board of
County Commissioners on May 13, 2003~ Ordinance No. 03-23 which ordinance created the
Livingston Village PUD, now known as "Marbella Lakes"; and
WHEREAS, County entered into a Developer Contribution Agreement dated
October 10, 2006, with Tousa Homes, Inc., a Florida Corporation ("Tousa"), for the
Development, which agreement is recorded in the Official Records of Collier County at OR
Book 4124, Page 2172, et seq. (the "Tousa DCA"); and
WHEREAS, Developer represents and warrants to the County as follows:
1. According to the recitals in the Tousa DCA, at the time of the Tousa DCA, GMAC
Model Home Finance, LLC (MHF) owned the Property. Tousa was the developer of the Property
under an arrangement with MHF which gave Tousa the option to acquire developed lots/parcels
in the Property. Tousa acquired some but not all of the lots/parcels in the Property pursuant to
that arrangement.
2. Developer acquired title to the Property as follows:
a. By General Warranty Deed dated June 9, 2008 and recorded in the Official
Records of Collier County at OR Book 4380, Page 4084, et seq., MHF conveyed
to DOA Properties VIII (Marbella Lakes), LLC the entire Property less the
lots/parcels previously conveyed to Tousa.
OR: 4456
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b. On July 30, 2008, DOA Properties VIII (Marbella Lakes), LLC changed its name
to Marbella Lakes Associates, LLC, which is the current name ofthe Developer.
c. By Quit-Claim Deed dated October 21,2008 and recorded in the Official Records
of Collier County at OR Book 4403, Page 0450, et. seq. and by Special Warranty
Deed dated October 21, 2008 and recorded in the Official Records of Collier
County at OR Book 440 3, Page 0456, et. seq., Tousa conveyed its interest in the
Property to Developer.
d. As such, Developer is the presently the owner of the Property.
3. Developer, by virtue of having acquired title to the Property, has succeeded to the
interest of Wallace L. Lewis and Marian H. Gerace, as the original "developer" under the PUD
Document, and as successor in interest, has all rights and is responsible for obligations set forth
in the PUD Document; and
WHEREAS, Subsection 2.20(L) of the PUD Document provides in part as follows:
"The developer shall reserve . . . the northernmost 100 feet width between the
mid-section line of Section 18 and 1-75, approximately 5.3 acres, ("Eastern
Roadway Reservation Area") . . . to accommodate a potential alignment of the
potential westward extension of Green Boulevard for which an alignment study is
scheduled to be undertaken between the year 2003 and 2004;" and
WHEREAS, the Eastern Roadway Reservation Area is more particularly described on
Exhibit "B" attached hereto and made a part hereof; and
WHEREAS, the County has requested that Developer transfer the Eastern Roadway
Reservation Area to the County in exchange for road impact fee credits equal to the fair market
value ofthe Eastern Roadway Reservation Area pursuant to the PUD Document; and
WHEREAS, the Transportation Administrator has recommended to the Board of County
Commissioners that the plan for dedication of the Eastern Roadway Reservation Area as set forth
in this Agreement (the "Dedication Plan") is in conformity with contemplated improvements and
additions to the County's transportation network and that this Agreement will be advantageous to
the public; and
WHEREAS, after reasoned consideration by the Board of Commissioners, the Board has
authorized the County Attorney to prepare this Agreement with the Board finding that:
a. The Dedication Plan is in conformity with the contemplated improvements and
additions to the County's transportation system;
b. The Dedication Plan, viewed in conjunction with other existing or proposed plans,
including those from other developers, will not adversely impact the cash flow or
liquidity of the County's road impact fee trust account in such a way as to
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frustrate or interfere with other planned or ongoing growth necessitated capital
improvements and additions to the County's transportation system;
c. The Dedication Plan is consistent with both the public interest and with the
County's existing comprehensive plan; and
d. The Dedication Plan is consistent with the most recently adopted five-year capital
improvement program for the County's transportation system.
WHEREAS, Developer has paid the required Two Thousand Five Hundred Dollar
($2,500.00) application fee for this Agreement.
WIT N E SSE T H:
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and
valuable consideration exchanged amongst the parties, and in consideration of the covenants
contained herein, the parties agree as follows:
1. All of the above RECITALS are true and correct and are hereby expressly
incorporated herein by reference as if set forth fully below.
2. Attached as Exhibit "C" is the general location map showing the Development.
3. Developer shall convey the Eastern Roadway Reservation Area to County in fee
simple, free and clear of all liens and encumbrances, by warranty deed in the form attached
hereto as Exhibit "D". Developer will provide the Office of the County Attorney with the
executed warranty deed, suitable for recording, within ninety (90) days of the execution of this
Agreement. Upon receipt, the County shall record the warranty deed in the Public Records of
the County and shall assume the costs associated with the recordation. County will be
responsible for paying the costs of any title work and searches, and Developer shall be
responsible for all costs for promptly removing or curing any liens, encumbrances or deficiencies
revealed in any title work. If required by the County Attorney, Developer will promptly provide
either an attorney's opinion, or a corporate affidavit, identifying the record owner of the Eastern
Roadway Reservation Area, setting forth the authority of the record owner to enter into this
Agreement, and identifying any lien holders having a lien or encumbrance on the Eastern
Roadway Reservation Area. The opinion or affidavit will specifically describe each of the
recorded instruments under which the record owner holds title, each lien or encumbrance, and
cite appropriate recording information and incorporate by reference a copy of all such referenced
instruments. The opinion or affidavit will further set forth the legal authority of the individual
signing this Agreement on behalf of the Developer. In addition to this conveyance, Developer
shall allow the County to connect to the Developer's existing surface water management system
as shown on the approved construction plans CNSTR AR# 11224 and right-of-way permit # 07-
0591E and consistent with the approved SFWMD permit # 11-00158-S-03. Developer shall use
its best efforts and cooperate with any necessary easements or permit modifications which may
be required to complete the surface water drainage physical connection. County shall pay all
costs for permits, planning and constructing this connection, and Developer shall convey at no
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cost to the County all necessary easements. If any actions or improvements by the County cause
damage to the Developer's water management system, the County, at its sole cost and expense,
shall repair and mitigate said damages.
4. Attached hereto as Exhibit "E" is a copy ofthe Impact Fee Ledger which will set forth
the amount of road impact fee credits granted for the Development in the amount of $709,000.00
for the Eastern Roadway Reservation Area. These road impact fee credits may be assigned or
otherwise transferred from the Development to another development by written agreement
executed by the County, provided that both developments are owned by Developer and are
within the same impact fee district. No such assignment or transfer of impact fee credits shall be
allowed until the Development has been completed, and such assignment or transfer must fully
comply with the Collier County Consolidated Impact Fee Ordinance. The credit for road impact
fees identified herein shall run with the Development land and shall be reduced by the entire
amount of each road impact fee due for each building permit issued thereon until the
Development project is either completed or the credits are exhausted or otherwise no longer
available, or have been assigned by operation of or pursuant to an assignment agreement with
County. The foregoing reduction in the impact fee credit shall be calculated based on the
amount of the impact fees in effect at the time the building permit is issued. It shall be the
Developer's obligation to notify the County that a credit is available, each time a building permit
is applied for in the Development.
5. In keeping with Section 74-205(p) of the Collier County Consolidated Impact Fee
Ordinance, in the event the amount of impact fee credits set forth herein exceeds the total amount
of transportation impact fees incurred by the Development, reimbursement to the Developer of
the excess of such contribution credit shall be made as follows:
(a) Reimbursement shall be made in equal payments, with no interest, over a period
of five years from the date of completion of the Development as determined by the
County.
(b) Reimbursement shall be from future receipts by the County of impact fees. If
impact fees have been legislatively abolished, either at the state or local level, or are
otherwise no longer in existence for any reason whatsoever, such reimbursement shall be
made subject to available funding by the Board of County Commissioners.
6. The parties agree to perform or cause to be performed any and all further acts as may
be reasonably necessary to complete the transactions contemplated herein, including, but not
limited to, the execution and/or recordation of further instruments.
7. All notices, elections, requests, and other communications hereunder shall be in
writing and shall be deemed given: (a) when personally delivered to the recipient; (b) three (3)
business days after being deposited in the United States mail, postage prepaid, to the above-listed
address of the recipient; (c) the next business day after being deposited with a recognized
overnight mail or courier delivery service; or (d) when transmitted by facsimile or telecopy
transmission.
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8. Nothing in this Agreement is intended to create a partnership or joint venture between
the parties and none of the parties to this Agreement shall be construed under this Agreement as
being partners or joint venturers for any purpose.
9. This Agreement is solely for the benefit of the parties to this Agreement and no right
or cause of action shall accrue by reason hereof to or for the benefit of any third party not a party
hereto. Nothing in this Agreement, expressed or implied, is intended or shall be construed to
confer upon or give any person or entity any right, remedy or claim under or by reason of this
Agreement or any provisions or conditions hereof, other than the parties hereto and their
respective representatives, heirs, successors and assigns.
10. If any provision of the Agreement, the deletion of which would not adversely affect
the receipt of any material benefits by any party to this Agreement or substantially increase the
burden of any party to this Agreement, shall be held to be invalid or unenforceable to any extent
by a court of competent jurisdiction, the same shall not affect in any respect whatsoever the
validity or enforceability of the remainder of this Agreement.
11. The burdens of this Agreement shall be binding upon, and the benefits of this
Agreement shall inure to, all successors in interest to the parties to this Agreement. Except as
otherwise provided herein, this Agreement shall only be amended or cancelled by mutual written
consent of the parties hereto or by their successors in interest. This Agreement contains the
entire agreement among the parties hereto, and supersedes any and all prior agreements,
arrangements, or understandings, whether oral or written and whether recorded or unrecorded,
between the parties hereto or their predecessors in interest, relating to the subject matter hereof,
including, without limitation, the Tousa DCA. Without limiting the generality of the foregoing,
the County and Developer agree that Developer shall no longer have any obligation to design,
obtain permits for and construct Whippoorwill Way from the main entrance of the Development
to the existing southerly terminus of Whippoorwill Lane at Stratford Place (the "Project") as
provided in the Tousa DCA. In that regard, Developer hereby assigns to County, without any
representation or warranty whatsoever, all of its right, title and interest in and to the plans and
specifications for the Project under permit no. CNSTR AR# 11224 and right-of-way permit # 07-
0591E and the approved SFWMD permit # 11-00158-S-03. County agrees that the Development
shall not be phased or tied in any way to, or limited in any way by, the future construction of the
Project, and Developer shall not be prevented or restricted in any way from obtaining building
permits or certificates of occupancy for the Development based on the timing of construction of
the Project or any decision by the County not to construct the Project.
12. The Developer acknowledges that the dedication of the Eastern Roadway
Reservation Area pursuant to this Agreement is in anticipation of a potential four lane Green
Boulevard extension. The Developer shall notify all buyers of the future roadway. The
Developer, its successors and/or assigns shall relinquish all rights to noise mitigation if and when
the road is constructed.
13. Developer acknowledges that the failure of this Agreement to address any permit,
condition, term or restriction shall not relieve the Developer, or its successors or assigns, of the
necessity of complying with any law, ordinance, rule or regulation governing said permitting
requirements, conditions, terms or restrictions.
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OR: 4456 PG: 2214
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14. In the event state or federal laws are enacted after the execution of this Agreement
which are applicable to and preclude in whole or in part the parties' compliance with the terms of
this Agreement, then in such event this Agreement shall be modified or revoked as is necessary
to comply with such laws, in a manner which best reflects the intent of this Agreement. This
Agreement shall not be construed or characterized as a development agreement under the Florida
Local Government Development Agreement Act.
15. Developer shall execute this Agreement prior to it being submitted for approval by
the Board of County Commissioners. With this submittal, Developer shall also deliver to the
County an attorney's letter attesting that Developer is an entity duly formed, validly existing and
authorized to conduct its business in Collier County; that this Agreement has been duly approved
by Developer; and that the person signing on behalf of Developer has the legal and corporate
authority to do so. This Agreement shall be recorded by the County in the Official Records of
Collier County, Florida, within fourteen (14) days after the County enters into this Agreement.
Developer shall pay all costs of recording this Agreement. A copy of the recorded document
will be provided to the Developer upon request.
16. This Agreement shall be governed by and construed under the laws of the State of
Florida. The parties shall attempt in good faith to resolve any dispute concerning this Agreement
through negotiation between authorized representatives. If these efforts are not successful, and
there remains a dispute under this Agreement, the parties shall first use the County's then current
Alternative Dispute Resolution Procedure. Following the conclusion of this procedure, either
party may then file an action in the Circuit Court of Collier County, which shall be the exclusive
venue with respect to any disputes arising out of this Agreement.
17. Any future reimbursement for excess credits shall come from future receipts by the
County of road impact fees. However, no reimbursement shall be paid until such time as all
development, as defined by the Transportation Administrator, at the location that was subject to
the credit has been completed. Such reimbursement shall be made over a period of five (5) years
from the completion of the Development.
18. An annual review and audit of performance under this Agreement shall be performed
by the County to determine whether or not there has been demonstrated good faith compliance
with the terms of this Agreement and to report the credit applied toward payment of road impact
fees and the balance of available unused credit. If the Collier County Board of Commissioners
finds, on the basis of substantial competent evidence, that there has been a failure by Developer
to comply with the terms of this Agreement and that Developer has not cured such failure within
thirty (30) days after the Developer has received written notice from the County specifying such
failure, or if such failure is one not reasonably able to be cured within such thirty (30) day
period, then if Developer has not commenced to cure such failure within such thirty (30) day
period and then continued to diligently pursue such cure to completion, this Agreement may be
revoked by the County.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their appropriate officials, as of the date first above written.
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OR: 4456 PG: 2215
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Attest:
DWIGHT E. BRQ~r; Clerk
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BOARD OF COUNTY COMMISSIONERS
COLLIE~UNTY' FLOR5A, _
By: ~,d""-~
DONN FIALA, ChaIrman
.
WITNESSES:
MARBELLA LAKES ASSOCIATES,
LLC, a Delaware limited liability company
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Print Name: f\JCt~" L 1 12"( 0CtJ-e\,
By: NAPLES ASSOCIATES III, LLC,
A Florida limited liability company,
as managing member
By: r'W~~'
Richard M. Norwalk,
Vice President
~~~~
ST A TE OF FLORIDA
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COUNTY OF BROW ARD
NOTARY SEAL
The foregoing instrument was acknowledged before me this / I day of
J.{ ~ ' 2009 by Richard M. Norwalk, as Vice President of Naples Associates III,
LLC, a Flonda lImIted lIabIlIty company, on behalf of the company as managmg
member of Marbella Lakes Associates, L . ited liability company, on
behalf of the company. He is personally known to me or has produced
as I entification.
Notary: ~)J1 ee;~'
Print Name:
Notary Public, State of Florida
My commission expires:
---- ---
.....~~..,!< KATHLEEN M COFFMAN
lm~ f~\ Notary Pubtic . Stlte of Florida
i' 'i My Comm. Explrll Mar 18. 2013
4;~ B,l Commission # DO 855384
",:f,,9f.:,~~'~ Bonded Throuw National Notary Assn.
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LIST OF EXHIBITS ATTACHED TO AGREEMENT
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Exhibit "A" Legal description of Property and map
Exhibit "B" Legal description of Eastern Roadway Reservation Area and map
Exhibit "C" Location Map of the Development
Exhibit "D" Warranty Deed
Exhibit "E" Impact Fee Ledger
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OR: 4456 PG: 2217
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EXHIBIT "A"
All of the lots described on the Plat of Marbella Lakes, together with Tracts A-I, A-3B, A-4, A-
5, A-6, A-7, B, C, D, E, F, G, H, I, J-l, K, L-l, L-2, L-3, L-4, L-5, L-6, M, N, 0, P-l, P-2 and P-
3, all according to the Plat of Marb ell a Lakes recorded in Plat Book 46, Page 77, of the Public
Records of Collier County, Florida.
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LIVINGSTON ROAD
OWNER/DEVELOPER
Marbella Lakes
Associates, LLC
1600 Sawgrass Corporate Parkway
Suite 230
SurH1s8, FL 33323
Tal. (954) 753-1730
Fax: (954) 753-4509
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Q. GRADY MINOR & ASSOCIATES, P.A.
CIVIL ENGINEERS. LA.'>JD SURVEYORS. I'LANNERS . LANDSCAPE ARCIIITECTS
BUN"ITA SPRI"-GS fORT MYERS NORTH PORT
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MARBELLA LAKES S.D.P.A.
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EXHIBIT . A'
THE PROPERTY
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EXHIBIT "B"
Tract A-3B of Marbella Lakes, according to the Plat thereofrecorded in Plat Book 46, Page 77,
of the Public Records of Collier County, Florida.
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OWNER !DEVELOPER
Marbella Lakes
Associates, LLC
1600 Sawgrass Corporate Parkway
Suite 230
Sunrise, FL. 33323
Tel. (954) 753.1730
Fax: (954j753-4509
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OWNERIDEVELOPER
Marbella Lakes
Associates, LLC
1600 Sawgrass Corporale Parkway
Suite 230
Sunrise, Fl. 33323
Tal. (954) 753-1730
Fax: (954) 753-4509
MARBELLA LAKES S.D.P.A.
EXHIBIT 'c'
GENERAL LOCATION MAP
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WARRANTY DEED
THIS WARRANTY DEED made this day of ,20_, by,
whose post office box is , (hereinafter referred to as "Grantor") to COLLIER COUNTY, a
political subdivision of the State of Florida, whose post office address is 3301 Tamiami
Trail East, Naples, Florida, 34112 (hereinafter referred to as "Grantee").
(Wherever used herein the terms "Grantor" and "Grantee" include all the
parties to this instrument and their respective heirs, legal representatives, successors
and assigns. Grantor and Grantee are used for singular or plural, as the context
requires
WITNESSETH: That the Grantor, for and in consideration of the sum of Ten
Dollars ($10.00) and other valuable consideration, receipt whereof is hereby
acknowledged, hereby grants, bargains, sells, aliens, remises, releases, conveys and
confirms unto the Grantee, all that certain land situate in Collier County, Florida, to wit:
Tract A-3B of Marbella Lakes, according to the Plat thereof recorded
in Plat Book 46, Page 77, of the Public Records of Collier County, Florida.
Subject to easements, restrictions, and reservations of record.
THIS IS NOT HOMESTEAD PROPERTY
TOGETHER with all the tenements, hereditaments and appurtenances thereto
belonging or in anywise appertaining.
TO HAVE AND TO HOLD the same in fee simple forever.
AND the Grantor hereby covenants with said Grantee that the Grantor is lawfully
seized of said land in fee simple; that the Grantor has good right and lawful authority to
sell and convey said land; that the Grantor hereby fully warrants the title to said land
and will defend the same against the lawful claims of all persons whomsoever; and that
said land is free of all encumbrances except as noted above.
IN WITNESS WHEREOF, the said Grantor has signed and sealed these
presents the day and year first above written.
OR: 4456 PG: 2223
ID.L
WITNESSES:
(Signature)
(Print Full Name)
(Signature)
(Print Full Name)
STATE OF
COUNTY OF
The foregoing Warranty Deed was acknowledged before me this day of
, 20_, by , who:
is personally known to me
OR
produced as proof of
identity.
(affix notarial seal)
(Signature of Notary Public)
(Print Name of Notary Public)
Serial! Commission # (if any):
My Commission Expires:
Last Revised: 2/6/07
EXHIBIT E
*** OR: 4456 PG: 2224 ***
DEVELOPER CONTRIBUTION AGREEMENT
ROAD IMPACT FEE CREDIT LEDGER
lOL "
Impact fee ledger
~ Beginning Balancel
$709,000.001
DATE PERMIT # CREDIT AMT BALANCE COMMENTS
BeQinninQ Balance $709,000.00
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