Agenda 09/23/2008 Item #16K 1Item # 16K1
September 23, 2008
Page 1 of 40
EXECUTIVE SUMMARY
That the Board of County Commissioners make a finding that: (1) pursuant to Section
10.02.13.F.5 of the Land Development Code (LDC), that the timing of the developer
commitment of providing a point of egress and intersection improvements prior to the
issuance of the first certificate of occupancy as required by the Coconilla Planned Unit
Development Ordinance No. 05 -15 is no longer necessary; and (2) that the appropriate
County staff issue certificates of occupancy for the first tower building and dwelling units
therein prior to the completion of the referenced access improvements.
OBJECTIVE: That the Board of County Commissioners (BCC) make a finding that: (1)
pursuant to Section 10.02.131.5. of the LDC, that the timing of the developer commitment
contained in the Coconilla Planned Unit Development Ordinance No. 05 -15 of providing a point
of egress to Cocohatchee River Park and intersection improvements at Vanderbilt Drive for the
subject development prior to the issuance of the first certificate of occupancy is no longer
necessary; and (2) that the appropriate County staff issue certificates of occupancy for the first
tower building and dwelling units therein prior to the completion of the referenced access
improvements.
CONSIDERATIONS: On March 22, 2005, the BCC approved the Coconilla Residential
Planned Unit Development by Ordinance No. 05 -15.
Paragraph 6.6.K. of Ordinance Number 05 -15, provides as follows:
K. The developer shall provide for a point of egress from the adjacent
Cocohatchee River Park through the Public Use Tract to the main point
of egress for the property and the intersection improvements provided
in Paragraph H above, prior to the issuance of the first CO [certificate
of occupancy].
On or about June 24, 2008, Ecoventure Wiggins Pass, Ltd. ("Ecoventure") the developer of the
Coconilla project, which is now known as Aqua at Pelican Isle Yacht Club, filed for bankruptcy
in federal court under Chapter 1 I of the Bankruptcy Code. The Bankruptcy Court approved a
Final Order authorizing post - petition financing. A copy of the Final Order is attached as
Attachment I. This financing will enable Ecoventure to complete the project including the
access improvements.
Pursuant to the financing terms, Ecoventure must obtain certificates of occupancy for the first
building and all units in the first building by October 31, 2008. See Attachment II. Ecoventure
cannot meet this deadline if the access improvements must be constructed and approved by the
County. Ecoventure is diligently working towards achieving completion of the building and
units by that date.
Ecoventure has entered into an agreement to construct the point of egress required by the PUD.
However, the point of egress cannot be completed by October 31, 2008. A copy of the contract
and construction schedule are attached as Attachments III and IV.
Item # 16K1
September 23, 2008
Page 1 of 40
EXECUTIVE SUMMARY
That the Board of County Commissioners make a finding that: (1) pursuant to Section
10.02.13.F.5 of the Land Development Code (LDC), that the timing of the developer
commitment of providing a point of egress and intersection improvements prior to the
issuance of the first certificate of occupancy as required by the Coconiila Planned Unit
Development Ordinance No. 05 -15 is no longer necessary; and (2) that the appropriate
County staff issue certificates of occupancy for the fast tower building and dwelling units
therein prior to the completion of the referenced access improvements.
OBJECTIVE: That the Board of County Commissioners (BCC) make a finding that: (1)
pursuant to Section 10.02.131.5. of the LDC, that the timing of the developer commitment
contained in the Coconilla Planned Unit Development Ordinance No. 05 -15 of providing a point
of egress to Cocohatchee River Park and intersection improvements at Vanderbilt Drive for the
subject development prior to the issuance of the fast certificate of occupancy is no longer
necessary; and (2) that the appropriate County staff issue certificates of occupancy for the first
tower building and dwelling units therein prior to the completion of the referenced access
improvements.
CONSIDERATIONS: On March 22, 2005, the BCC approved the Coconilla Residential
Planned Unit Development by Ordinance No. 05 -15.
Paragraph 6.6.K. of Ordinance Number 05 -15, provides as follows:
K. The developer shall provide for a point of egress from the adjacent
Cocohatchee River Park through the Public Use Tract to the main point
of egress for the property and the intersection improvements provided
in Paragraph H above, prior to the issuance of the fast CO [certificate
of occupancy].
On or about June 24. 2008. Ecoventure Wie¢ins Pass. Ltd. ( "F.envennire." ) the. devPlm" of the.
Item # 16K1
September 23, 2008
Page 2 of 40
Ecoventure has included funding for the point of ingress improvements in the Bankruptcy Court
approved financing. A copy of the lender's letter confirming that the financing includes
proceeds for the point egress improvements is attached as Attachment V.
Without the Bankruptcy Court approved financing, the point of egress improvements cannot be
completed.
County Transportation Staff and Parks and Recreation Staff have reviewed the proposed
construction schedule and are in agreement with the issuing of the certificates of occupancy for
the first building and all residential units in the first building prior to the point of egress
improvements being completed.
Ecoventure is requesting that the BCC, pursuant to Subsection 10.02.13.F.5. of the Land
Development Code find that: (1) the timing of the developer commitment contained in the
Coconilla PUD Ordinance of providing a point of egress to Cocohatchee River Park and
intersection improvements at Vanderbilt Drive for the subject development prior to the issuance
of the first certificate of occupancy is no longer necessary because loan proceeds have been set
aside for the access improvements; contracts for construction have been executed; and
construction has commenced; and (2) direct staff to issue certificates of occupancy for the first
tower and the residential units prior to completion of access improvements.
FISCAL IMPACT: The access improvements will not be constructed unless the financing
authorized by the bankruptcy court is implemented. The partially constructed residential tower
will not be completed if the financing is not implemented.
GROWTH MANAGEMENT IMPACT: None
LEGAL CONSIDERATIONS: Subsection 10.02.13.F.5. of the Land Development Code (see
Ordinance No. 06 -63) provides that a release of a PUD commitment determined to be no longer
necessary may be brought as an agenda item to the Board of County Commissioners for its
approval. The timing of the Coconilla PUD commitment may be deemed to be no longer
necessary as the funding for the access improvements has been set aside for that purpose;
contracts for the construction have been entered into; and construction has commenced. This
action does not relieve Ecoventure from the requirement to complete the access improvements
required by Paragraph 6.6.K. of the Coconilla PUD ordinance. This item has been reviewed by
the County Attorney's Office and is legally sufficient for BCC action. (HFAC)
RECOMMENDATION: That the Board of County Commissioners make a finding that: (1)
pursuant to Subsection 10.02.13.F.5. of LDC, that the timing of the Coconilla PUD commitment
of providing a point of access to Cocohatchee River Park and to intersection improvements at
Vanderbilt Drive prior to the issuance of the first certificate of occupancy is no longer necessary;
and (2) that the appropriate County staff is directed to issue certificates of occupancy for the
tower building and dwelling units therein prior to the completion of the referenced access
improvements.
PREPARED BY: Heidi Ashton- Cicko, Assistant County Attorney, Land Use Section Chief
Item # 16K1
September 23, 2008
Page 3 of 40
That the Board of County Commissioners make a finding that: (1) pursuant to Section 10.02.13.F.5
of the Land Development Code (LDC), that the timing of the developer commitment of providing a
point of egress and intersection improvements prior to the Issuance of the first certificate of
occupancy as required by the Coconilla Planned Unit Development Ordinance No. 05 -15 is no
longer necessary; and (2) that the appropriate County staff issue certificates of occupancy for the
first tower building and dwelling units therein prior to the completion of the referenced access
improvements.
Prepared By:
Department
County Attorney
Approved By:
Department Approval
County Attorney Approved
Approved By:
Date
9/15/2008 2:13:11 PM
Date
9/15/2008 5:09 PM
Department Approval Date
Office of
Management Approved 9/16/2008 8:22 AM
and Budget
Approved By:
Department Approval Date
County
Manager's Office Approved 9/16/2008 9:56 AM
ATTACHMENTS:
Name: Description:
D PelicanlsleYachtClub Executive Coconilla - Section 10.02.13.F.5 of the Land Development
SUmmary.doc
D Pelicarlsle attachment#1 pdf
0 Attachment#2- Pelicanlsleodt
0 Pelican lsle_attdchment #3.ggt
0 Pel1canlsle0001 dttachment#4
D Pelicanlsle attachment #S.pdf
Code(LDC)
attachment #1
attachment #2
attachment #3
pdf attachment #4
attachment #5
Type:
Executive Summary
Backup Material
Backup Material
Backup Material
Backup Material
Backup Material
Item # 16K1
Case 9:08 -bk- 09197 -ALP Document 67 Filed 07/25/2008 Page 1 of 226eptember 23, 2008
Page 4 of 40
UNI'T'ED STATES BANKRUPTCY COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
In re: Chapter I 1
ECOVENTURE WIGGINS PASS, LTD., Case No. 9:08 -bk- 9197 -ALP
Debtor Joint Administration Motion Pending
FINAL ORDER ON EMERGENCY MOTION OF DEBTOR, ECOVENTURE
WIGGINS PASS, LTD., FOR AUTHORITY TO OBTAIN POST- PETITION
FINANCING, TO GRANT LIENS AND SUPERPRIORITY ADMINISTRATIVE
EXPENSE STATUS AND PROVIDING ADEQUATE PROTECTION
THIS CAUSE came on for hearing on July 21, 2008, and July 24, 2008, upon the
Emergency Motion of Ecoventure Wiggins Pass, Ltd. ( "Ecoventure, Ltd.') for Authority
to Obtain Post - Petition Financing and to Grant Liens and Supetpriority Administrative
Expense Status and Adequate Protection Pursuant to 11 U.S.C. § §364(c) and (d) of the
Bankruptcy Code and F.R.B.P. 4001 (the "Bcoventure DIP Financing Motion") (Docket
No. 21 which seeks, pursuant to §364 of the Bankruptcy Code and Rules 2002, 4001(c)
and 9014 of the Federal Rules of Bankruptcy Procedure (the 'Bankruptcy Rule),
entry of the order authorizing Ecoventuro to borrow up to $26,100,000 from Cypress
Lending Group, Ltd. (the "DIP Lender')' in order to fund completion of construction on
the luxury condominium development known as the "Aqua at Pelican Isle Yacht Club" in
Naples Florida (the "Project').
Motion.
Unless defined herein, capitalized terms in this Order have the meaning defined in the
ATTACHMENT 1
Item # 16K1
Case 9:08 -bk- 09197 -ALP Document 67 Filed 07/2512008 Page 2 of 22September 23,
Page 5 of 40
On July 9, 2008, Aqua at Pelican Isle Yacht Club Marina, Inc. (the "Marina
Club'h and Pelican Isle Yacht Club Partners, Ltd. ( "PIYC Partners"), as debtors and
debtors in possession in these Chapter it cases,2 by and through their undersigned
attorneys, joined in a Motion to Obtain Post - Petition Financing and Grant Senior Liens,
Superprionty Administrative Expanse Status and Adequate Protection Pursuant to 11
U.S.C. § §364(c) and (d) of the Bankruptcy Code (the "Marina Club and PlYC Partners
DIP Financing Motion") [Docketed in the Ecoventure case at #42]. In the Marina Club
and PIYC Partners DIP Financing Motion, Marina Club and PIYC Partners sought
approval to become borrowers on the debtor -in- possession financing sought by
Ecoventure, Ltd. and to grant the DIP Lender first liana on all of their assets, whether or
not encumbered by valid pre - petition liens.
On June 24, 2008, Ecoventure, Ltd. filed a motion to employ McHale Properties
of South Florida, LLC and its principal, Gerald McHale ( "McHale ") as its chief
restructuring officer (Dkt No. 6) (the "McHale Employment Motion "). The McHale
Employment Motion was also scheduled for hearing on July 21, 2008.
On June 27, 2008, this Court entered its Agreed Interim Order on Ecoventure,
Ltd.'s Emergency Motion for Authority to Obtain Post - Petition Financing and Grant
Senior Liens, Superpriority Administrative Expense Status and Adequate Protection
Pursuant to 11 U.S.C. § §364(c) and (d) of the Bankruptcy Code and F.R.B.P. 4001 [Dkt.
No. 191 (the "Agreed Interim Order'. On July 14, 2008, this Court entered its Second
= Ecoventure, Ltd., the Marina Club, and PIYC Partners are sometimes collectively referred
to as the "Debtors."
2
Item # 16K1
Case 9:08 -bk- 09197 -ALP Document 67 Filed 07/2512008 Page 3 of 226eptember 23, 2008
Page 6 of 40
Agreed Interim Order on Ecoventure, Ltd.'s Emergency Motion for Authority to Obtain
Post - Petition Financing to Grant Liens, Superpriority Administrative Expense Status and
Adequate Protection Pursuant to 11 U.S.C. § §364(c) and (d) of the Bankruptcy Code and
F.R.B.P. 4001 [Dkt. No. 19] (the "Second Agreed Interim Order'. In those orders, the
Court granted to the DIP Lender senior liens on all assets of Ecoventure, Ltd., as well as
super - priority administrative expenses, to the extent of the interim DIP funding.
At the July 21, 2008 hearing, Ecoventure, Ltd., Marina Club, and PIYC Partners
requested that this Court authorize them to borrow $26.1 million to refinance the amount
previously funded under the Agreed Interim Order and the Second Agreed Interim Order.
The Marina Club and PIYC Partners requested that this Court authorize them to join as
borrowers in Ecoventure, Ltd.'s loans approved by this Final Order, such that all three
Debtors would be co- borrowers under the entire $26.1 million DIP Facility.
Regions Bank, N.A. for itself and as administrative agent for the participant banks
Wachovta Bank, National City Bank, LaSalle Bank (now Bank of America) and First
National Bank of Pennsylvania ( "Regions'), supported and consented to the requested
relief at the July 21, 2008 hearing subject to the terms and conditions of this Order.
Due and sufficient notice of the Ecoventure DIP Financing Motion and the
Marina Club and PIYC Partners DIP Financing Motion having been given, and upon the
entire record and argument of counsel, and this Court having found good and sufficient
cause appearing therefore:
THE COURT FINDS THAT:
1. This Court has jurisdiction over this Chapter II Case and the cases of
Item # 16K1
Case 9:08 -bk -09197 -ALP Document 67 Filed 07/25/2008 Page 4 of 2Zeptember 23, 2008
Page 7 of 40
Marina Club and PIYC Partners, over the Ecoventure DIP Financing Motion, and over
the Marina Club and PIYC Partners DIP Financing Motion pursuant to 28 U.S.C.
§ §157(b) and 1334. Venue is proper in this district pursuant to 28 U.S.C. § §1408 and
1409. The Bcoventure DIP Financing Motion and the Marina Club and PIYC Partners
DIP Financing Motion present core proceedings as defined in 28 U.S.C. §157(b)(2).
2. Prior to the Filing Date, Ecoventure, Ltd. borrowed funds from Regions
and granted to Regions s first priority and properly perfected lien on all of its assets to
secure those loans. The Debtors have admitted, stipulated, acknowledged and agreed and
hereby affirm that the loan documents executed between the Debtors and Regions are
valid, binding, and enforceable and that Regions held on the Petition Date a properly
perfected fast mortgage lien on and/or security interest in all of the Debtor's assets,
which lien and/or security interest are not subject to avoidance, reduction, disallowances,
disgorgement, counterclaim surcharge or subordination pursuant to the Bankruptcy Code
or applicable non - bankruptcy law .3
3. The Debtors are unable to operate solely with the use of cash collateral
and are unable to obtain unsecured credit conditioned solely upon an allowable
administrative expense claim under §503(b)(1) of the Bankruptcy Code, or by junior liens
on property encumbered by pro-petition liens.
s The admissions, stipulations, acknowledgements and agreements of the Debtors under
Paragraph 2 of this Order are not binding on any creditors, the United States Trustee, or any
Creditors' Committee that may be formed and are expressly subject to the rights of such parties,
as set forth in paragraph 13 of the decretal portion of this Order.
4
Item # 16K1
Case 9:08 -bk- 09197 -ALP Document 67 Filed 07/25/2008 Page 5 of 223eptember 23, 2008
Page 8 of 40
4. Financing on a post - petition basis is not available unless the Debtors grant
the DE? Lender senior first priority liens and security interests in their properties pursuant
to §364(d) of the Bankruptcy Code.
5. Approval of this financing is essential for the Debtors' continued
operations and is the best financing available to them.
6. Based upon the appraisal testimony and other evidence adduced or
proffered at the hearing, the value of the property securing Regions' claims exceeds the
amount of those claims. Regions is an "oversecured" creditor within the meaning of
§506(b) of the Bankruptcy Code.
7. Sufficient and adequate notice of the hearing and the relief requested in
the Motion has been given in accordance with § §102(1), 364(c), and 364(d) of the
Bankruptcy Code and Bankruptcy Rules 2002 and 4001(c), and all Debtors' creditors,
subcontractors, and entities which have filed notices to owner are among the entities
having received such notice.
S. The entry of this Final Order is in the best interests of the Debtors, the
estates, creditors, and parties in interest because it will enable the Debtors to complete
construction of the Project and to continue to operate and because such financing will
enhance the prospects for their reorganization.
Based on the foregoing, and there appearing good and sufficient cause,
IT IS HEREBY ORDERED THAT:
1. The Ecoventure DIP Financing Motion be, and the same hereby is, granted
as to full loan amount of $26.1 million, in replacement of principal and interest amounts
5
Item # 16K1
Case 9:08 -bk- 09197 -ALP Document 67 Filed 07/25/2008 Page 6 of 225eptember 23, 20081 ,
Page 9 of 40
advanced under the Agreed Interim Ceder and the Second Interim Order. A similar order
is being entered in the cases of Marina Club and PIYC Partners. The Debtors are
authorized to execute all documents necessary to consummate this transaction and to
appoint such agents as it may choose to execute those documents, and any such agent
shall be conclusively deemed to have all requisite authority to execute those documents
and to bind the Debtors, provided such documents an in the form and substance required
by the DIP Lender and its title insurer.
1 Ecoventure, Ltd. and the other Debtors are authorized to borrow up to the
total sum of $26.1 million, inclusive of loan fees, line feea, loan closing costs and DIP
Lender's attorneys' fees and such additional sums as are enumerated in Paragraph 4,
below, from the DIP Lender, inclusive of the amounts advanced under the Agreed
Interim Order and the Second Interim Order, in accordance with the draw procedures
described below. The sums drawn by the Debtors from the DIP Lender under the terms
of this Final Order are referred to as the "DIP Loan."
3. Pursuant to §364(d), the DIP Loan shall be secured by first priority senior
mortgages on, security interests in, and liens upon all assets of the Debtors and their
estates and shall prime and be senior in priority to the prepatition liens in favor of
Regions as the Prepetition Lender and all other parties having or asserting an interest in
the collateral described in the Commitment attached to the Ecoventure DIP Financing
Motion (the "Commitment') and the Marina Club and PIYC Partners DIP Financing
Motion, including (without limitation) the real property and other interests more
particularly described in Exhibit A attached to this Order (consisting of the legal
6
Item # 16K1
Case 9:08 -bk- 09197 -ALP Document 67 Fled 07/25/2008 Page 7 of 22september 23, 2008
Page 10 of 40
descriptions of the real property owned by the Debtor in fee simple, together with the
Debtor's leasehold interest in the marina basin and the submerged land lease with the
State of Florida), excepting the tax collector. Except as to the modifications set forth
herein, the DIP Lender shall be entitled to all of the protections requested in the
Commitment, the tams of which are incorporated into this Final Order, including
(without limitation) the anti- priming protections.
4. The DIP Lender is authorized, upon execution of definitive loan
documents in a form satisfactory to the DIP Lender and satisfaction of all terms in the
Commitment to the satisfaction of the Lender, to advance finds to the Debtors pursuant
to any budget agreed upon in writing by Regions, the DIP Lender, and the Debtors (an
"Agreed Budget"). In the event of an Agreed Budget, McHale shall oversee all advances
thereunder directly relating to completion of construction of the Project (i.e., "hard
costs') to confirm tbat (a) the work represented thereby has been performed in a good
and workmanlike manna; (b) the advance requested is in proportion to the work
completed, (c) that completion of construction of the Project is proceeding diligently and
in accordance with the applicable plans and specifications, and (d) that there are
sufficient unfunded amounts under the DIP Loan remaining to complete the construction
Of the Project consistent with the line items and aggregate amounts specified in the
Agreed Budget. The Debtors may seek to borrow funds not included in an Agreed
Budget by sending, via email and confirming facsimile transmission, a draw request
executed by McHale joined by such other persons as the Debtors may direct to counsel
for and a business representative of the DIP Lender and Regions. If no written objection
7
Item # 16K1
Case 9:08- bk409197 -ALP Document 67 Filed 07125/2008 Page 8 of 2:f)eptember 23, 2008
Page 11 of 40
is received by the Debtors within seven calendar days of the email transmission and if
both Regions and the DIP Lender agree to this draw request, then the draw request shall
be deemed approved and shall be funded by the DIP Lender within five calendar days
following the approval date up to the full amount of the DIP Loan balance. In no event
shall the DIP Lender be required to extend loans in excess of the amount set forth in the
Commitment, nor shall the DIP Loan be considered a "revolving" loan or have revolving
features. If a timely written objection is received by the Debtors within the seven day
period, then the draw request shall not be funded by the DIP Lender unless the draw
request is approved by this Court. All parties have agreed that a [notion filed by the
Debtors to approve a draw request over an objection shall be heard at the earliest
convenient time. In addition to the amounts set forth in any Agreed Budget or approved
draw request, the DIP Leader (a) shall fund payments directly to Regions on account of
its legal fees and its costs of inspection as set forth in Paragraph 9 below and (b) shall pay
itself the interest, unused line fees, and other costs and charges to which it is entitled
under the Commitment or this Order.
5. Unless otherwise agreed by the DIP Lender, Regions, and the Debtors or
otherwise ordered by this Court, all draws on the DIP Loan (except payments to Regions
or the DIP Lender) shall go either directly to the designated payee as set forth in the
Agreed Budget or to the DIP bank account of the appropriate Debtor. McHale shall be a
required signatory on all such DIP accounts.
6. The liens securing the DIP Loan shall be enforceable against Eeoventure,
Ltd. and all those claiming by, through, or under it and shall be deemed properly
8
Item # 16K1
Case 9:08 -bk -09197 -ALP Document 67 Filed 07/25/2008 Page 9 of 22September 23, 2008
Page 12 of 40
perfected without the need to record additional documents in the Public Records. The
DIP Lender shall be entitled to interest on the funds advanced pursuant to this Final
Order at the rate of 12% per annum from the date of each advance and shall be entitled to
a commitment fee of 2% of the amounts advanced pursuant to this Final Order to be paid
to the DIP Lender at the time of each advance. A twelve month interest reserve shall be
disbursed monthly in favor of the DIP Lender, and the amounts necessary to pay the
interest reserve and the Six Month Yield Maintenance provided for in the Commitment
shall be part of the funding authorized by this Final Order, but only as to amounts
actually disbursed by the DIP Lender in accordance with this Order. The DIP Lender
shall also be entitled to a monthly Unused Line Fee calculated on the basis of 16.7 basis
points of the undrawn portion of the DIP Loan, commencing thirty days from the date of
this Order. Further, the Six Month Yield Maintenance guarantee of $1,560,000 shall be
calculated on the basis of the full DIP Loan amount of $26,100,000.00 at twelve percent
interest for six months, regardless of the principal balance of the DIP Loan outstanding
from time to time. In other words, if the total interest earned by the DIP Lander during
the first year is $1,460,000, the additional charge will be $100,000.
7. As additional assurance that the DIP Loan will be repaid, the DIP Lender
will be granted and allowed a supepriority administrative expense claim in the amount of
the funding authorized by this Final Order in accordance with § §364(c)(1) of the
Ban3wptcy Code having priority and right of payment over any and all other obligations,
liabilities, and indebtedness of Ecoventure, Ltd., now in existence or hereafter incurred
by it and over any and all administrative expenses or priority claims of the kind specified
9
Item # 16K1
Case 9:08 -bk -09197 -ALP Document 67 Filed 07/25/2008 Page 10 of 2$eptember 23, 2008
Page 13 of 40
in, or ordered pursuant to, § §105, 326, 328, 330, 331, 503(b), 506(c), 507(a), 507(b), and
726(b) of the Bankruptcy Code, subject only to the fees of the Office of the United States
Trustee.
8. The terms of the DIP Loan and the Commitment shall be modified in the
following respects:
a) The Debtors shall be authorized to sell condominium units,
cottages, and marina slips and to transfer to such purchasers Yacht
Club memberships that constitute a part of the collateral of the DIP
Lender and of Regions free and clear of all liens pursuant to order
of this Court and Section 363 of the Bankruptcy Code or a plan of
reorganization, provided that:
i) the DIP Lender and Regions shall share equally (fifty -fifty)
in the net cash proceeds of such sales after all closing costs
(not to exceed 70/a of the gross sales price), after payment
of the Yacht Club membership fee of $25,000 per unit
(which fee shall be paid one -half to the DIP Lender and
one-half to Regions), and after the reservation of any
amounts ordered by this Court or agreed to by the parties to
be set aside to fund future bomeowners' association fees,
project maintenance, ad valorem taxes, marketing costs,
and the like; s
ii) no sale of a condominium unit will be approved without the
consent of the DIP leader unless all of the following
conditions are satisfied:
(1) following the sale, the DIP Lender's debt to
collateral ratio shall not be greater than 20% in
'No such reserve shall be established until the DIP Loan has been fully funded. The reserve
shall not exceed projected expenses for more than twelve months, and the DIP Lender (until such
time as it is paid in full and, thereafter, Regions) shall retain a lien on the reserve account to the
extent those funds are not spent for the projected expenses.
10
Item # 16K1
Case 9:08 -bk- 09197 -ALP Document 67 Filed 07/25/2008 Page 11 of 2september 23, 2008
Page 14 of 40
accordance with the formula to be set forth in the
final loan documents. For purposes of this Section,
the "collateral ", is comprised of 48 residential units
currently under construction in Phase I of Aqua at
Pelican We Condominium which the parties
stipulate to having a value for purposes of these
calculations of $130,000,000. In determining the
"value of the remaining collateral" portion of this
release equation, the value of the collateral shall be
equal to $130,000,000 less the cumulative amount
of gross sales which have been closed prior to the
transaction for which a release has been requested;;
(2) following the sale, the DIP Lender's debt per square
foot of unsold residential space under air with
respect to remaining residential units in Phase I of
Aqua at Pelican Isle Condominium shall not exceed
$135 per square foot; and
(3) the DIP Lander shall receive from the proceeds of
sale cash of no less than $240 per square foot under
air of the condominium unit to be released.
iii) no sale of a cottage or marina slip at less than seventy
percent of the current list price will be approved without the
consent of the DIP Lender.
b) The payments to the DIP Lender and Regions shall be made
directly from the proceeds from such sale by the title company or
other entity responsible for the closing of such condominium unit,
and the DIP Lender and Regions shall, if requested to do so by the
Debtors or the title company, release their respective liens on such
condominium unit, cottage, or marina slip. The sale of any other
property of the Debtors under Section 363 of the Bankruptcy Code
shall not be permitted without the written consent of the DIP
Lender so long as any portion of the DIP Loan remains unpaid.
The amounts received by the DIP Lender and Regions from such
sale shall be applied to reduce their respective loan balances in
accordance with their loan documents. The closing costs shall not
exceed 7% of the purchase price of a unit without the consent of
the DIP Lender and Regions.
c) The Debtors shall have the option to extend the maturity of the DIP
11
Item # 16K1
Case 9:08 -bk -09197 -ALP Document 67 Filed 07/25/2008 Page 12 of 22eptember 23, 2008
Page 15 of 40
Loan from twelve months to twenty -four months pursuant to a
provision contained in a confirmed Chapter 11 plan. Regions may
object to such plan provision. If the DIP Loan is extended for an
additional year, the DIP Lender shall be entitled to an exit fee of
2% payable at the end of the loan and calculated on the amount
outstanding on the date of the renewal date together with a Six
Month Renewal Yield Maintenance calculated on the basis of the
amount of the DIP Loan outstanding as of the renewal date of the
DIP Loan at twelve percent interest for six months, regardless of
the principal balance of the DIP Loan from time to time thereafter.
d) In the event that a plan of reorganization is confirmed or the
Chapter I I is dismissed or converted, or relief from stay is granted,
this Court shall in all such circumstances, and by this Order does
hereby reserve exclusive jurisdiction for the purpose of enforcing
and interpreting the terms of this Order and any loan documents
issued in furtherance of this Order.
9. As adequate protection to Regions, in accordance with Sections 364(d)
and 361 of the Bankruptcy Code, in addition to the payments set forth in paragraph 8 a.
above:
a) Regions and Regions' counsel shall have direct access to McHale;
b) Regions' inspectors shall have access to the project at all
reasonable times;
C) The Debtors shall have submitted to Regions by August 10, 2008,
a confidential timetable for the obtaining of a certificate of
occupancy, the expected sale of condominium units (including the
contract attached to Docket No. 29), and such items as Regions
may reasonably request. The timetable shall be executed by
McHale and joined by such other persons as the Debtors may
direct;
d) Neither the Debtors nor any other party shall seek to surcharge the
collateral which is subject to the lien of the DIP Lender or Regions
pursuant to any section of the Bankruptcy Code, including Sections
105 or 506(c) or assert any equity exception under Section 552 of
the Code, and the parties expressly acknowledge that the set- asides
provided for under this DIP Order are in lieu of any surcharge
12
Case 9:08 -bk -09197 -ALP
expenses;
Item # 16K1
Document 67 Filed 07/25/2008 Page 13 of 2Feptember 23, 2008
F�age 16 of 40
e) , The reasonable costs of Regions' inspectors and the fees and costs
of its counsel and its experts shall be paid from the DIP Loan;
f) Regions shall have a post - petition replacement lien and security
interest in any assets of the Debtors as of the petition date, or
thereafter arising wherever located, and all proceeds, products,
rants, and profits of the foregoing to the same validity, extent, and
priority as it had prior to the petition date but subject to the liens of
the DIP Lender under the terms of the DIP loan and this Final
Order. The security interests and liens granted by this paragraph
will be fully perfected as of the petition date without the
requirement that Regions file financing statements or other
recorded instruments;
pJ Any default under the DIP loan shall be deemed a default under the
Regions loan;
h) The DIP Lender shall send written notification to Regions in the
event of a default by the Debtors on the DIP loan;
i) The Debtors stipulate that the principal amount of the Regions
claim as of the petition date is $94,900,816.11, plus interest at the
non - default contract rate, costs, and attorneys' fees. In addition,
Regions is entitled to post - petition amounts for interest at the non-
default rate, costs, and attorneys' fees as an over - secured creditor
pursuant to Section 506(b) of the Bankruptcy Code;
j) To the extent that the adequate protection offered herein proves to
be insufficient, then Regions shall have a superpriority
administrative claim pursuant to Section 507(b) of the Bankruptcy
Code inferior only to the administrative priority granted to the DIP
Lender and United States Trustee fees;
k) The Debtors shall maintain insurance covering any collateral
claimed by Regions to the extent of the insurance coverage
maintained prior to the date of the Debtor's Chapter 11 case and
shat! furnish Regions proof of all such insurance upon request
within ten (10) days;
1) Upon the occurrence of a default under this Order, Regions is
entitled to an expedited hearing on its Motion for Relief from Stay
13
Item # 16K1
Case 9:08 -bk- 09197 -ALP Document 67 Filed 07/25/2008 Page 14 of 2$eptember 23,
Page 17 of 40
(Dock. #34); and
m) The Debtors release Regions, and its past, present, and future
affiliates, subsidiaries, predecessors, successors, partners,
employees, agents, representatives, assigns, accountants, and
attorneys of and from any and all actions, causes of action,
avoidance actions under Chapter 5 of the Bankruptcy Code,
claims, suits, debts, liabilities, damages, obligations, promises,
acts, omissions, judgments, demands, defenses, or remedies of any
kind or nature whatsoever, in law or in equity, whether known or
unknown, suspected or unsuspected.
Based upon the provisions of this Order, Regions shall withdraw its motion to dismiss
this Chapter 11 case and shall abate its motion for relief from the automatic stay. The
parties have agreed that the removed state court foreclosure action initiated by Regions
shall be abated as to all parties by order of this Court and shall thereafter be remanded to
State Court. In the event of the Debtors' failure to comply with the adequate protection
provisions of this Order (including the timetables set forth in paragraph 9(c), unless such
timetables have been extended by Regions in its sole discretion), Regions shall be entitled
to seek relief from the stay on an expedited basis, the state court proceeding may proceed
forward without further order, and the abatement shall terminate. The foreclosure action
shall be dismissed upon confirmation of a Chapter 11 plan, without prejudice to the right
of Regions to recommence that action in the event of any default under the Chapter 1 I
plan. Regions' consent to the entry of this DIP Order is conditioned upon the entry of an
order granting the McHale Employment Motion, which Order shall be forthwith entered.
10. The DIP Lender is extending financial credit to the Debtors in good faith
and the liens, priorities and rights granted under this Final Order are subject to the
protection of §364(e) of the Bankruptcy Code.
14
Item # 16K1
Case 9:08 -bk -09197 -ALP Document 67 Filed 07/25/2008 Page 15 of 2 eptember 23, 2008
age 18 of 40
11. This Final Order shall be effective immediately upon entry. This Final
Order shall be binding in any subsequent Chapter 11 case, and the DIP Lender shall be
entitled to relief from the automatic stay in the event of any such subsequent filing.
12. This Final Order is without prejudice to the tights of the Debtors and
Regions under a Chapter 11 plan, provided that nothing in any such plan shall adversely
affect the rights of the DIP Lender set forth herein.
13. Any objection by any party other than the Debtors to the extent, validity,
or priority of Regions' liens as set forth in paragraph 2 or its replacement liens as set
forth in paragraph 9(f) shall be filed no later than thirty (30) days from the date of this
Order. If any objection is not timely filed, then it shall be deemed waived and released
In the absence of a timely objection, the liens of Regions shall be conclusively
determined to encumber all assets of the Debtors, subject only to the DIP Lien and ad
valorem real estate taxes.
14. The Debtors shall serve a copy of this Final Order on all parties in interest
and shall file a certificate of such service with the Clerk of the Court. Such service shall
15
Item # 16K1
Case 9:08 -bk -09197 -ALP Document 67 Filed 07/2512008 Page 16 of 2 eptember 23, 2008
age 19 of 40
be sufficient notice to all parties.
DONE AND ORDERED at Tampa, Florida, on_ July 25, 2008
ALEXANDER L. PASKAY
Chief United States Bankruptcy Judge Emeritus
Copies to:
All parties on a current matrix
To be served by the Debtors
H:WwrW,wvc*= WinlnpAgoslOt Test -Pat Finning Order Burk- Bcovmbuv4h.ldw
16
Item # 16K1
Case 9:08 -bk- 09197 -ALP Document 67 Filed 07/25/2008 Page 17 of 2 eptember 23,
tage 20 of 40
*"* M: 4310 No. 2592 "t
ANW=
Li0AL 031CLu "
WAR MRAM
A PAWA LO/ LAMLYM I" tRW10N 17.7OWMW 42=rr L RAWOR7f
5"T=LMCOUIrr nQRIDA MMw=rAMwM"LYWICR =
ARWOU MR ..
V.IIOR LIIA"iq
.. WA�p10�� OAMAIl./ORTlQ�WiAMWOWYM(t �j'ODII�/q .
. - p78lKlNOTJ17'I'M.10l173aM IelT,
' q'IYWCRL Wr1IWLK1RX7l�m1 .. .
MYbtlQ1i00'JHP V. ARiLOf �q
4) ' l7�IpKp9M •LlOLR7r/i�7OA1ON�0/Q/RVA7URR .
�'l7mlLtf017liAf[4RY3M.7l IM8r,At,0RliRRAMCOIANON• .
- ' 1GRA0{ WOr LU�OiY' 1',Y�000RACARRAI:ANOLR0fR'IPIO'
.Al01RNO pii W R®lY A C90RD MlOCR RLW LIPJiN.I RlOR 70RR
Case 9:08 -bk- 09197 -ALP Document 67 Filed 07/25/2008
i1E RIC Fa.:2211-714 -1835
Freud lUr /Viarrbe: 64- 2003-2963
J
C- 417,T 0
I3IMUTA
Item # 16K1
Page 18 of 2�eptember 23, 2008
Jul 15 2008 12: i- 21 of 40
Pared 1(F= Paul):
A parcel of land In Section 17, Tcwnsldp 48 South. Range 25 Ems. Collin County, Florida,
described as follows:
Begin to the Northeast oomw of the Southeast 114 of said Section 17; theme along the Fiat line
of said Section 17, S 00a 2M" E 30.W to the Northeast corner of Conklin plaint, a subdivision
recorded in Plat Book 8, Page 16, Public Records of Collier County, Florida; thame along the
North lime of said Conklin Point S 89°16'10' W 530.00 feet; thin" leaving am North line N
0092600" W 30.00 feet to the Noah line ofthe Southeast 1/4 of aid Section 17; d mm dons the
North line of said Southeart 114 N 89916'10' E $30.00 feet to the Palest of Bogbaisw
Also With
The SE 114 of the SE 1/4 oftha NE 114 of Section 17, Township 48 South, Range 25 Part, Collier
County, Florida. LESS AND EXCEPT a portion of Some Rod 865-x, ecgveyadto the Stain of
Florida by Dead dated Nov. 5,1959, tetzrd, In O.R. Book 51 Page 510, Public Records of
Collie Courft, Florida, befog mare slpeciflaBy described a follows;
Begmnmg at the NE comer of aid SE 114 of the Be 1/4 of the N8 Y., then"
S 0002T30 "S (wumed besring) along the Part line of said Section 17, a dkance of 493.91 for
to the point of curvature eta eircWw carve concaved to the Walt having a radius of 1860.08 feet;
thence northerly long the am afraid curve thm a ertrel angle of rl7'3S` a dMao" of 236.77
fern to dw point of tarrgmw, *am N 704505' W 1 50.41 flat to tits point of OWY of a
ehculor curve "caved to the east, having a Mini of 1960.08 feet; feenoe NW&KIY along 1ht:
am of aid curve. 108.75 feet to the North lime of rid SE 1/4 of SE 1/4 ofM 1/4; thaw N
89.03.18" E ahmg add Bee 44.95 feet to the Point of Beginmios.
LESS AND EXCEPT THE PROPOSED MARINA BASIN DESCRIBED AS FOLLOWS:
A parcel of land lying in Section 17, Township 48 South, Range 25 Eat Collier Comm. Florida.
being more particularly described as follows:
Commencing at the Eau 19 comer of Section 17, Township 48 South, Range 25 Eat.
Collier County:
Tbame along the Eau lime of said Seetim 17, S 00°30'09" E far 30.0o the to the
Northeast coma of Tract 1. Conklin PoWt, a moorded in Plat Book 8, Pegs 16, of the
Public Rm=6 of Collier Coumy. Florida;
Theme kavbrs MW Bat Ilse and along the Noadlesly boundary of aid Conklin Point
Flak S RVITIr W fa 513,08 feet es a point on Ore waterside 96" of an existing
aeawsll;
Thane laving Wd Coddin point and along aid waareide hce,N 19'0228" W for
45.10 feet to the point of Beginning of the parcel herein described;
Thence continuing along aid waterside fate for the following three (3) courses;
1) du nce N 19'0228" W for 13SAO fear,
2) thecae N 76 °1827" W for 18.48 feat;
3) donee S 1902623• W Pot 7.72 feet to the waterside of a p qmW strfvafl;
Theo" leaving "id Wnaeide fa" end akrog the waterside face of a proposed seawall for
Out following eleven (11) comar
Rev-0.0
rye 3 of a
Case 9:08 -bk- 09197 -ALP Document 67 Filed 07/25/2008
11E RM
UPDATE
Flood Mk NWNber. 64- 2003.2 %3
Fex:239- 176 -1935
Item # 16K1
Page 19 of 2 §pe�ptember 23,
Jul t5 2009 8t1te. P0051�F 22 of 40
1) thsuee N 00°31'37" W for 155.32 (set;
2) thence S 76"19'58" E for 54.25 feet;
3) thorcc N 0003177" W for 63.06 fast;
4) theme N 39.2049" E for 6.79 feet to a point of curvature;
5) thence Soutlewla4y 334.73 het, along the are of a own -out otid chooter curve to
the right, having a radius of 211.00 tie, through a central angle of 90053140" and being
unbounded by a obord whbb Were S 45'31.11" E for300.72 feel to it point oftngeocy;
6) thence S 00"3177" E for 3335 feet;
7) thence S 99.11-43" W fa 52.43 feet;
9) tbmoe S 00.4812" E tot 13.06 fret;
9) 411ame S 89°11'48" W for 85.54 fee;
10) thence S 19'24'21" k for 33.66 fist
11) da aoe S 42" 2635" W fbf 12,45 feet to lee Point of Beginning ohhe parcel daaibed
haiia.
Baeriogs we based on the &d line of the Sautlwrt quarter (1/4) of Section 17, Tomship 48
Soutly Range 25 East, being assunud as S 00'30'09" E
Parcel 2 (l.w. bold Parcel):
A puce, of tend Mu in Section 17, Townabip 43 Sou* FwW 25 Bast. Collier County, Florida,
being more Particularly detcelbW v Monet;
Commeacing at the Bart 1/4 caner of Section 17, Townehip 49 Sonh, Runge 2S East,
Colliercouaty;
Then" along the East line of said section 17, S 00`30'09" E for 30.00 fem,e to tine
Northeast "mar of Tract 1, Cookltn Point. as r000rded in Plat Book 9, Page 16, oftba
Public Racorde of Co111er Coapt, Florida;
Thmoo lm,avhtg said East 11" and along the Northarly boundary of said Conklin Pour
plat, S 39'12'17" W for 513.08 het to a point on ft WaNnide Q" of an aloft
taaWalt
Theme leaving said Conklin Point and along rid waterside Qom,, N 1900228" W for
45.10 hd to the Poke of Beg onkng of tbo parcel hesin dea rixd;
Theme eondnaing along taid wstuatde face for tfst following tine (3) coureer;
l) then" N 19"0228" W for 135.40 hek
2) tharce N 76°1827" W for 58.48 feat
3) thence S 89e 2823" W for 7.72 feet to ft water" of a proposed wwalk
Tbmoe leaving old wu%%We Qom, and along the waterside Qoo of a propound unwell for
the following eleven (11) courses;
1) thence N 00"3137" W for 155.82 feet
2) thaace 5 76019153" B for 54.25 fist;
3) tbmw N 00.3177' W for 63.06 fast
4) dtan" N 39' 2849' E for 6.79 fie to a point of curvy ure;
5) tbma Soathm,auecly 334.73 het. along the ero of a nontaagwafal circular cure to
the right, having a radius of 211.00 fast, through a central angle of 90 "53'40" std being
subtaded by a tdwrd whiah boon S 45.31'11" E for 300.72 feet to a point of tangemy;
6) dmw S 00"3137" E for 83.35 Oteg
7) theme S 39"11148" W for 52,43 SiaK
Iter.0.0
Mtge 4 K a
Item # 16K1
Case 9:08 -bk- 09197 -ALP Document 67 Filed 07/25/2008 Page 20 of 226eptember 23,
TIE RM Fu:229- 771 -105 Jul 15 2008 12:16w wu67pp 23 of 40
UPDATE
Jrxwd PW Nenr6er: 64,2009.2963
9) thence S 00'4512" E for 13.06 feet;
9) thence S t9"1 r46" W for 95.54 feet;
10)lbeooe S 19°78'21" E for 33.66 feet;
11) ft ow S 42'26'35" W for 1285 feet to the Min of Beglnniag of the pe[oei deeeribcd
herein.
Be4rinp We bead on dte Fast line of the Southwest quieter (114) of Section 17, Township 46
South, Reaga 25 Easy bdug sewated as S 0070'09" E.
EeV.9.6
='ep S els
Item # 16K1
Case 9:08 -bk- 09197 -ALP Document 67 Filed 07/25/2008 Page 21 of 2 Page24 ,
of 40
Page
LEGAL DESCRIPTION (SUBMERGED LAND LEASE)
'PARCEL A ":
A PARCEL OF SUBMERGED LAND THE COCOHATCHEE RIVER LYING IN THE
WEST 1/2 OF SECTION 17. TOWNSHIP 48 SOUTH.. RANGE 25 EAST. COLLIER.
COUNTY, �FLORILTA, 98EING MORE PARTICULARLY DESCRIBED AS .FOLLOWS:
COMMENCING AT THESE CORNER OF THENCE 1 /4:.OF SAID SECTION 17,
THENCE SOUTH 89'16'08 " ;WEST µpHs THE SOUTH LINE OF SAID NE 114 OF
SECTION (7, 523.02 FEET TO THE INTERSECTION.WM. THE FACE OF A
CONCRETE SEAWALL AND THE MEAN HIGH wATER UNE OF THE COCOHATCHEE
RIVER; THENCE NORTH' 18'58'15' WEST, ALONG SAID SEAWALL,: 13.08 FEET TO
THE POINT OF BEGINNING THE THE PARCEL HEREIN DESCRIBED; THENCE LEAVING
-SAIQ SFAMEL SOUTH 42'30'56 ':WEST 79.17 FEET,• THENCE SOUTH 70'4O'Di'
WEST 125.27 FEET; THENCE NORTH IF19'59' WEST 59 ;00 FEET; TH£NCE.NORTH
`70',4O'O1' EAST Y35.00- FEET; THENCE NORTH 19'.19'59' WEST 12.10 FEET;,
THEME NORTH 70'40'01''e4sr 20.50 FEET; THEME NORTH- 19'19'59" WEST
T3.11- '.FEET; THEME- NORTH 70'40'01' EAST 39.86 FEET TO AN INTERSECTION
WITH SAID SEAWALL; 'THENCE SOUTH 18'58'15' EAST,' ALONG SAO SEAWALL,
46.86 FEET TO `.THE POINT OF.BEGINNIIC.'
T. CONTAINING 11,450 SQUARE FEET (0.263AACRES) OF LAND MORE OR LESS.
SU&CCT TO EASEMENTS, RESTRICnQNS AND. RESERVATIONS OF RECORD.
BEARINGS BASED IIPON THEEAST LINE OF .;THE NE I14 OF.SVD SECTION 17
OF SOUTH' 00'27'30' FAST.
MlahmsrdA
pip 9d2i Poem
' SBLL IAb. 111979190 _ .. " -
LEGAL DESCRIPTION: ,_(SUBMERGED LAND.:LEASE)
PARCEL $':
A PARCEL OF SUBMERGED LAND. IN THE COCOHATCH£E RIVER LYING IN THE
WESY: i12 OF SECTION 47, TOWNSHIP 18 SOUTH," RAGE 25 EAST, COLLIER
COUNTY, FLORIA4,' BUNG MORE,MRDCUWtLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SE • CORNCR OF ,THE. NE 114. OF. W: SECTION. 17;
THENCE SOUTH 8716'08' WEST,'ALONG THE.-SOUTH LINE OF SAID NE 114
OF SECTION 17, 523.02 FEET TO THE INTERSECTION( 9/TH ":THE FACE OF A
CONCRETE SEAWALL AND ME ",.WW WATER. liNtOF THE COCOHATCHEE
RIVER; THENCE NORTH 18'58'15' WEST, -ALONG :SAIYSEAWAU, 148;84 FEET;
THENCE NORTH 7M250. ALONG'SW SEAWALL 38:89 FEET TO THE
POINT OF BEGINNING .thE.:THE PARCEL HEREII DESCR19M. THEWE LEAVING
SAID SEAWALL SOUTH. 13'5035" WEST, 18.42 FEET -- THEME. NORTH,
26'0925" WEST 41,00 FEET,• THENCEWORTH' IT50'35 EAST.. f8;32 FEET TO
AN INTERSECTION WITH S IQ SEAWALL; THENCE SOUTH 76'09 25" EAST.
RALOM SAID SEA)ML, 41.00 FEET TO THE POINT OF BEGINNING.
='C WTAINING 750' SOWE FEET (0:017 ACRES) OF LAND: MORE OR LESS.
J SUBJECT TO ME41ENTS, RESTRICTNONS AND RESERVATIONS OF
BEARINGS BASED, UPON THE CAST -LINE OF THE NE _ij4' OF SAID. SECTION
17 H414NG A BEARING OF SOUTH 002730.' EAST.
Item # 16K1
Case 9:08 -bk- 09197 -ALP Document 67 Filed 07/25/2008 Page 22 of 2 Page 2008
25 of 40
e
RI ,i,� R� • ....
f i iR
"d Jill
all
U
■ s 1 °iP� .b_�. i f
�i rll
tic
R
sit
Ht
,utiama.n .i
a,n.JO a12r P.p..
'- S6LLNu111�7i1196
Item # 16K1
September 23,
Gerard A. McHale, Jr. Page 26 of 40
1601 Jackson Street Telephone: (239) 337 -0808
Suite 200 Fas: (239) 337 -1178
Fort Myers, Florida 33901 E -Mail: IcaylIlOtherectliMnst
September 10, 2008
Ma Marla Ramsey
Head of Public Services
Collier County Government
3301 Tamismi Trail East
Community Service Building H
Naples, FL 34112
Dear Ms. Ramsey,
We have been successful in acquiring the financing for the completion of "Aqua at Pelican Isle
Yacht Club" (formerly Corneille) property at the northern and of the county at Wiggins Road am
Vanderbilt Road One of the provisions requested by the lender was that the cartlfmor of
occupancy for the property be obtained by October 31, 2008, as mandated by the Timetable for
Certificate of Occupancy, which was provided to the County under separate cover
We have been working with our contractor, Boren Craig Barber Engel, Construction Co., inn to
ensure building completion in a timely fashion that would allow the issuance of a arti6cate of
r occupancy for the building within the timefreme. taro of die items tequawed in the Phoned unit
Development prooess is the resignalizadon of the intersection to accommodate the Park egm a
std we are also waking feverishly to accomplish that objective•, it is uncertain, however, whether
the insersection improvements will be fully completed within this timagame.
We do understand that thens will be a meeting of the Council on September 23 and would request
consideration and review of the progress we've made in order to allow the issuance of a final
certiflease of occupancy by the date required by the lender. Shedd we be unable to achieve
certificate of occupancy by October 31, there is a risk that the project will be delayed and become
embroiled in litigation, an outcome that will not be productive for any of the patties involved, the
County included.
Should you have any questions related to this, you certainly should feel fix to contact our
allDmay. Richard Yovenovich, who is aiding us in coordinating these efforts.
We thank you for your consideration and your understanding in this matter.
Aqua
at Pel_ic_ann Isle YYar'cchhhttt Club
Gerard A. McFlela' , W
Chief Restructuring Officer
Y
46 6 ATTACHMENT 11
IoF 2_
PRIVILEGED AND CONFIDENTIAL
AQUA AT PELICAN YACIiT CLUB CONDOMINIUM DEVBLOPMWr
TIMETABLE FOR CERTIFICATE OF OCCUPANCY AND
MARKET ABSORPTION OF CONDOMINIUM UNITS
CerdDnta of pewpaacy (the "CO') for Eeoventure Wiggins Pass, Ltd. (the "Debtor's is to be
obtained on or before October 31, 2003, provided, howeva, that this deadline shall be extended
until December 31, 2003, upon the furnishing of a sworn affidavit signed by )wry McHale
staring that the failure of the Debtor to obtain a CO by October 31, 2003 was due to the Debtor's
failure to obtain governmental and utility approvals for traffic signsliralion and acceptance of
utilities by Collier County and that the approval can be obtained by the Debtor on or before
December 31, 2003.
This timetable is provided to Regions Banir in accordance with final DIP financing orders
entered by the Bankruptcy Court This timetable is to remain confidential. However, Regions
Bonk shall be entitled to fib this timetable with the overt in the event that the Debtor Wis to
meet the deadlina herein and Regions Bank seeks Relief from Stay. Nothing herein precludes
the Debtor fiom resisting any motion for relief fiom slay and explaining any failure to most these
timetables.
Date
Gaard, v
Chief Restructuring Officer
for Debtors in Possession
ECOVENTURE WIGGINS PASS, LTD.
a Florida limited partnership
By: Ecoventrre Wiggins Pus, Inc„
a Florida corspoloon,
Oat er
BY. r
wa aeger, P identt
Z of 2.
Item # 16K1
September 23, 2008
Page 27 of 40
where the bases for payment is a STIPULATED
AGREEMENT merle as of the day of
in the year of
(In words, indicate day, month and year)
BETWEEN the Owner•.
(Name, address and other information)
Ecoventure Winn Pass, LTD
PO Box 13465
Tampa, FL 33681
and the Contractor:
(Name, address and other information)
Kent Technologies LLC
4586 Progress Avenue
Naples, FL 34104
The project is:
(Name and location)
Aqua at Pelican We Yacht Club, Intersection Signalization
Wiggles Pass Rd. and Vanderbilt Drive
Naples, FL 34110
The Architect is:
(Name, address and other information)
David Plummer & Associates
1750 Ponce de Leon Blvd
Coral Gables, FL 33134
Phone: 305-447-0900
Fax: 305 444 4986
The Owner and Contractor agree as follows.
ATTACHMENT III
I Of it
Item # 161<1
September 23,
Page 28 of 40
Page - 1 - of 7
Item # 16K1
September 23,
Page 29 of 40
Page -2 -of7
Standard Form afArreement Between Owner and Contractor
where the basis for payment is a STIPULATED SUM
ARTICLE 1 THE CONTRACT DOCUMENTS
The Contract Documents consist of this Agreement, Conditions of the Contract (General, supplementary and
other Conditions), Drawings, Specifications, Addenda issued prior to execution of this Agreement; these form
the Contract, and are as fully a part of the Contract as if attached to this Agreement or repeated herein. The
Contract represents the entire and integrated agreement between the parties hereto and supersedes prior
nagotiations, representations or agreements, either written or oral. An enumeration of the Contract Documents,
other than Modifications, appears in Item S.
ARTICLE 2 THE WORK 013 THIS CONTRACT
The Contractor shall fully execute the Work described in the Contact Docu nCats, except to the extent
specifically indicated in the Contract Documents to be the responsibility of others.
ARTICLE 3 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
§3,1 The date of commencement of the Work shall be the effective date of this Agreement unless s different
date is stated below or provision is trade for the date to be fixed in a notice w proceed iasucd by the Owner.
(Insert the date of commencement if it differs from the date of this Agreement or, if applicable, stale the date
will be fixed in a notice to proceed.)
If, prior to the commencement of the Work, the Owner requites time to file mortgages, mechanic's liens and
other security Interest, the Owner's time requirement shall be as follows:
§32 The Contract Time shall be measured from the dote of commencement.
§3.3 The Contractor shall achieve Substantial Completion of the entire Work not later than October 1, 2008, or
as follows:
(Insert number, of calendar days. Alternatively, a calendar date may be used when coordinated with the date of
commencement. Unless stated elsewhere in the Contract Documents, insert any requirements for earlier
Substantial Completion of certain portions of the Work.)
„subject to adjustments of this Contract Time as provided in the Contract Documents.
(Insert provisions, if any, for liquidated damages relating to failure to complete on time or for bonus payments
for early completion of the Work.)
ARTICLE 4 CONTRACT SUM
§4.1 The Owner shall pay the Contra" the Contract Sum in currant funds for the Contractor's performance of
the Contract. The Contract Sum shall be One Hundred Forty -eight Thousand Four Hundred Twenty -two dollars
and eighty five cents. ($148,422.85), subject to additions and deductions providod in the Contract Documents.
-2- OF tl
Item # 16K1
September 23,
Page 30 of 40
Page -3 -of7
Standard Form ofA &reement Between Owner and Contractor
where the basis for payment is a STIPULATED SUM
§4.2 The contract Sum is based upon the following alternates, if any, which are described in the Contract
Documents and are hereby accepted by the Owner.
(State the number of other identification of accepted aitermatca. if decisions on other alternates are to be made
by the Owner subsequent to the execution of this Agreement, attach a schedule of such other alternates showing
the amount for each and the date when that amount expires)
§43 Unit prices, if any, we as follows:
Pricing for temporary signalizstion to achieve 10/1 /08 substantially completion.
$10,300.00
ARTICLE 5 PAYMENTS
§5.1 PROGRESS PAYMENTS
§5.1.1 Based upon Applications for Payment submitted to the Architect by the Contractor and Cealfieatrs for
Payment issued by the Architect, the Owner shall make progress payments on amount of the Contract Sum to
the Contractor as provided below and elsewhere in the Contract Documents.
§5. 1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day
of the month or as follows:
§5.1.3 Provided that a contractors Application for Payment is received by the Architect not later than the 5" day
of a month, The owner shall make payment to the contractor not later than the 30 day of the some month. Wan
application for Payment is received by the Architect after the application date fxed above, payments shall be
made in the month following receipt of the approved Application of Payment.
§5.1.4 Each Contractors Application for Payment shall be based on the most recent schedule of values
submitted by the Contractor in accords= with the Contract Documents, The schedule of values shall allocate
the entire Contract Sum among the various portions of the Work The schedule of values shall be prepared in
such fors and supported by such data to substantiate its accuracy as the Architect may require. This schedule,
unless objected to by the Architect, shall be used as a basis for reviewing the Contractors Application for
Payment.
§5.1.5 Contractors Application for Payment shall indicate the percentage of completion of each portion of the
Work as of the end of the period covered by the Application for Payment
Item # 16K1
September 23, 2008
Page 31 of 40
Page -4 -of7
where the basis for payment is a STIPULATED SUM
15,1.6 Subject to other provisions of the Contract Documents, the amount of each progress payment shall be
computed as follows:
.1 Take the portion of the Contract Sum properly allocable to completed Work as determined by
multiplying the percentage completion of each portion of the Work by the share of the Contract
Sum allocated to that portion of the Work in the schedule of values, less retainage of ten percent
(10°h). Pending final determination of the cost to the Owner of changes In the work, amounts
not in dispute shall be included as provided in Section 73.8 of document CAP201.
.2 Add the portion of the Contract Sum properly allocable to materials and equipment delivered
and suitable stored at the site for subsequent incorporation in the completed construction (or, if
approved in advance by the Owner, suitable stored off the site at a location agreed upon in
writing), less retainage of ten percent (10%);
.3 Subtract the aggregate of previous payments made by the Owner; and
.4 Subtract amounts, if any, for which the Architect has withheld or nullified a Certificate for
Payment as provided in Section 9.2 of Document CAP201.
§5.1.7 The progress payment amount determined in accordance with Section 5.1.6 shall be hulher modified
under the following circumstances:
.l Add, upon Substantial Completion of the Work, a sum sufficient to increase the total payments
to the full amount of the Contract Sum, less such amounts as the Architect shall determine for
incomplete Work, retainagc applicable to such work and unsettled claims; and
(Section 9.8.5 of Document CAP201 requires release of applicable retainage upon substantial
Completeion of Work with consent of surety, if any.)
.2 Add, if final completion of the Work is thereafter materially delayed through no fault of the
Contractor, any additional amounts payable in accordance with Section 9.10.3 of Document
CAP201.
§5.1.8 Reduction or limitation of retainage, if any, shall be as follows:
(If it intended, prior to Substantial Completion of the entire Work, to reduce or limit the reatinage resulting from
the percentage inserted in Sections 5.1.6.1 and 5.1.6.2 above, and this is not explained elsewhere in the Contract
Documents, insart here provisions for such reduction or limitation)
§5.1.9 Except with the Owner's prior approval, the Contractor shall not make advance payments to suppliers for
materials or equipment which have no been delivered and stored at the site.
15.2 FINAL PAYMENT
§5.2.1 Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner
to the Contractor whca:
.l The contractor has fully performed the Contract except for the Contractor's responsibility to
correct Work as provided in Section 12.2.2 of Document CAP201, and to =I* other
requirements, if any, which extend beyond final payment; and
.2 A final Certificate of Payment has been issued by the Architect
y 0{- 1(
Item # 16K1
September 23, 2008
Page 32 of 40
Page -5 -of7
SMadad Form a[Affreemene Between Owner and Congactor
where the basis for payment is a STIPULATED SUM
.3 no Contractor has submitted for itself and for all its subcontractors and suppliers final.
executed and binding certificates, releases, and waivers of all lien and bond rights and claims
and all claims to payment in a form acceptable to the Owner,
.4 The Cotttraator has submitted to the Owner all Project Record documents, manuals, operation
instnutiorus directions, safety manuals or guides, and any other deliverables required by the
Contract Documents;
.5 All rights, warranties, titles, and claims to materials, equipment, or systems supplied wider this
Agreement have been validly transferred to the Owner or the Owner's assignee; and
.6 All necessary inspections, approvals, licenses, and permits have been successfWly obtained or
properly executed and the Project may be occupied and used without restriction.
15.2.2 The Owner's fmal payment to the Contractor shall be made no later than 30 days after the issuance of the
Architect's final Certificate of Payment, or as follows:
ARTICLE 6 TERMINATION OR SUSPENSION
§6.1 The Contract may be terminated by the Owner of the Contractor as provided in Article 14 of Document
CAP201.
16.2 The Work may be suspended by the Owner as provided in Article 14 of Document CAP201.
ARTICLE 7 MISCELLANEOUS PROVISIONS
§7,1 Where reference is made In this Agreement to a provision of Document CAP201 or another Contract
Document, the reference refers to that provision as amended or supplemented by other provisions of the
Contract Documents.
§7.2 Payments due and unpaid under the Contract shall bear interest from the date payment is due at the rate
stated below, or in the absence thereof, at the legal rate prevailing from time to time at the Place where the
Project is located.
(Insert rate of interest agreed upon, if any.)
(Usury laws requirements under the Federal Truth in Leading Act, similar slate and local consumer credit laws
and other regulations at the Owner's and Contractor's principal places of business, location of the Project and
elsewhere may aMet the validity of this provision. Legal advice should be obtained with respect to deletions or
modifications, an also regarding requirements such as written disclosures or waivers,)
§7.3 The Owner's representative is:
(Name, address and other information)
Steve Barber
13240 Tarniami Trail N., Stc 204
Naples, FL 34110
Phone: 813.326 -6531
Pax: 239 -598 -9258
p �- I I
I . ., ...
where the basis for payment is a STIPULATED
§7.4 The Contractor's representative is:
(Name, address and other information)
Michael Thomas
Kent Technologies
4586 Progress Ave
Naples, FL 34104
Phone: 239 - 949 -9334 x.4489
Item # 16K1
September 23, 2008
Page 33 of 40
Page - 6 - of 7
§73 Neither the Owner's nor the Contractor's representative shall be changed without ten days written notice to
the other party.
§7.6 Other provisions:
. t The Contractor is in default of or has materially breached any of its obligations under the
Contract Documents;
.2 The payment of any part thereof is attributable to Work that is tlnfectiva or does not conform
to the requirements of the Conttuct Documents, The Owner shall make payment for those
portions of the Work that are not defective or nonconforming, subject to the remaining
conditions for payment.
.3 The Contractor has failed to pay its employees or its Subcontractors or suppliers for Work on
the Project, except to the extent resulting fiotn Owner's non - payment.
.4 There; is reasonable evidence that the Contract Sum then remaining unpaid will be insufficient
to complete the Work in accordance with the Contract Documents.
.5 Claim is made by others for damages arising out of or relating to Work performed by the
Contractor or its Subcontractors or those In their control, to the extent not covered by insurance.
.6 Theft: is reasonable evidence that the Work cannot be completed within the Contract Time and
that the unpaid balance of the Contract Sum is insufficient to cover damages for the anticipated
delay.
AWI'ICL.E 8 FINIUMFRATION OF CONTRACT DOCUMENTS
§8.1 The Contract Documents, except for Modifications issued after execution of this Agreement, arc
enumerated as follows:
§8.1.1 The Agreement is this Standard Form of Agreement Between Owner and Contractor.
§8.1.2 The General Conditions are the General Conditions of the Contract for Construction.
§9.1.3 The Specifications of FDOT and Collier County technical specifications
(Either list the Specifications hero or refer to an exhibit attached to this Agmament.)
§8.1.4 The Drawings are as follows, and are dated TBD unless a different is shown below:
(Either list the Drawings here or refer to an exhibit attached to this Agreement.)
Provide exhibit per Plummer drawings
Co o�- it
Item # 16K1
September 23, 2008
Page 34 of 40
Page -7 -of7
Standard Form ofAvreement Between Owner and Contractor
where the basis for payment Is a STIPULATED SUM
§8.1.5 The Addenda, if arty, are as follows:
Number Title Pages
TBD TBD TBD
Portions of Addenda relating to bidding requirements are not part of the Contract Documents unless the bidding
requirements are also enumerated in this Article 8.
§8.1.6 Other documents, if arty, forming part of the Contract Documents are as follows:
(List here any additional documents that are intended to form pmt of the Contract Documents. Documents
CAP201 provides the bidding requirements like advertisement or invitation to bid, Instructions to Bidders,
sample forms and the Contractor's bid are not part of the Contract Documents tnticas enumerated in this
Agreement. They should be listed here only if intended to be parr of the Contract Documents.)
,1 The RFP.
.2 The Proposal Submitted in response to the RFP.
This Agreement is entered into as of the day and year first written above and is executed in at least three
original copies, of which one is the be delivered to the Contractor, on to the Architect for use in the
administration of the Contract. and remainder to the Owner.
Owner (Signature)
5T6v- gAa -ems.
(Printed Name &Title) r wt GU%-jr Pk eS, uto
Contractor (Signature)
Maksc ek4a evtt
QateaCN4
or-
(Printed Name & Title)
--+ of- 11
Item # 16K1
September 23, 2008
From: 2399g2 M Pane: 214 Dam: srerz0oe 4:00:17 PM Page 35 of 40
ik Proposal
lk September 3, 2008
I�NITA LDMSTONE TRANSPORTATION, INC.
7935 Drew Ci le.
R A6ww, FL 34967
P& (139) 992 -6300 Fax (139) 992 -6345
WFag' PRIClSa
Aqw at Pml=n bk Yadtt Club
Ot pOW Order Amowk
lk F7 ertd Can WA= an ear Sloe of 1JervWW foe
810 CIMS ® 85110 Pw CLDYD
4" Sidewalk with no Relrtbrm veil or Tlddoerted edge
1 MSCUT0UA0 per SQIFT
Applied DaYdffilfle MIM htp Who for Handbep
Rat r per FWT VwW 304 -90 BGtFT ® 58200
pwSCVFr
TWw -P Grrtt 5o LWFT G $2025 per LNlFT
Es m 1ed158a01 Ma55.75P6rSl71YD
®1Mtteled 133 BOA= LYiwu* Bew r 0 $12.75
Per 13
A ttpltek 18D BQIYDB O $2526 per 3tglYD
4PktB Arrweandalprrepe-LS
Aelftl Rarwtrel -L8
YYtrlar ktlntltg far Rennttal of eny HdMeg llr IM11e -
LB
Jrtetat (2) Flerd■tde , (1) .wrm6nn Boot and 53' or 19' x
8D' t9tCP - L8
Blesrwe 2 � 5125.00 EA
Bad
TaW TM
T
M
No Pemtb Indttded
No kdpetbn hrJUdel!
No Lsyaut or Too ft hickeded
$500 75
$1,706.00
$4.550.00
$1,31525
51,153.78
$1,05.78
$81672.80
$6,290.00
$1,80D.00
53,802.80
520.115.00
SM.DD
111moo
RJEM
n
� Oft or Oft I*
This fox ww mce m o� sk httpJt v gfi.com
git
M
Item # 16K1
September 23, 2008
From: 2399020M Faux W Data: WN2008 1 Wll PM Page 36 of 40
TDIS M @ LUkP OW oonkod faaf@rtNlaa @a@MI alw tpr MdamMbfel pfsposo any
a N LWNEIM T aim In bs� � b Arb kwAW bra W da Mooed n e.20 dn� M"auewb of
!LT Ina, ICs wnplayws orat@Ilp OwnK mmt pwide Mc b tle works and ke jc6 t mud fmobl
davafall wofkwliNetltiaoadradiobaitdraft &.
CALL BEFORE YOU D(O I.00MOZ4770
V* p apow b kafdah 8*0awt 8 labor, oompNM 6 sddafd@ffds @Atlf h dews aped daft s. N rfw" 51
b pudmnlssd to to M @podia& AN nOflf wB b.o danplsbd in a wails Moo nmer sdaadlf19 7o d@ndad
podb W and ory Maritdn ar dsw0wi kin ke 0100 kwok p sore ani@ @AN b@ snaotflad
ONLY upon Milan adw@ sod M boodle w @ddVwW rps &" wd' a ke aWw aWrn- I AN
afoldaffd a boyatd our oca, t7wrerwB deny s@
nwoo ay YfrAww@@. (�1rwOfk@liankay oowff@d �"e + �
Dhomworciparalm a7 PmpwW Owner a• Apad
�* Zreonie TMwp*r%Nw.Ina. , .
a p S o8
O@1�
This fax woo moolved by GR FAXmaker fax server. For more infome8on, visit httplAvww.9ff.0om
C) o�- 1l
t
lk
MW�01 -1
4
'illia, -t .
wl
IS
96
a
Item # 161<1
September 23, 2008
Page 37 of 40
Is
rV
a
12-1 LL 0
�Nlffi
°g 0)51
.c 0
Ot)P
z ww
0
OM
L) 0
a
. �lt
This fox was moolmd by GFI FAXmaker fax server. For mom Information, visit htkp:/Avww.gfi.com
( a C) � t (
a TIM
FJ
Item # 161<1
September 23, 2008
Page 37 of 40
Is
rV
a
12-1 LL 0
�Nlffi
°g 0)51
.c 0
Ot)P
z ww
0
OM
L) 0
a
. �lt
This fox was moolmd by GFI FAXmaker fax server. For mom Information, visit htkp:/Avww.gfi.com
( a C) � t (
Item # 16K1
September 23, 2008
HP OEM 7370 Log for Page 38 of 40
Personal -ECG GROUP 1t4C
(813) 254Mn
SOP 05 2008 3:54PM
Lad Tnmmcoon
21W TIMS I>22-
Sep 5 3:63PM Fox Sent
•l:�.i.
x. x
I l 0f- I(
Durallon pig Resin
1:25 4 OK
Item # 16K1
September 23,
C
C
September 4, 2008
Ms. Marla Ramsey
Head of Public Services
Collier County Government
3301 Tomismi Trail East
Community Service Building H
Naples, FL 34112
Re: Aqua at Pelican Isle Yacht Club
Dear Ms. Ramsey:
Item # 16K1
September 23, 2008
Page 40 of 40
We, as the lender, for Aqua at Pelican Isle Yacht Club (formerly Coconllla), have
reserved funds to complete the traffic signalization and Intersection
improvements at Vanderbilt Drive and Wiggins Pass Road. Approval for this
funding was granted on July 25, 2008 In Federal Bankruptcy Court, case number
9:08 -bk -09197 -ALP. A copy of this court order was provided to you under
separate cover.
The funding for this work has been identified in the loan budget, and made part of
the loon agreement between Cypress Lending and Eooventure Wiggins Pass,
LTD, executed on August 18, 2008. Please do not hesitate to contact us directly
to discuss the funding or other questions that might arise.
g ncoral ,
Robert P. Gram n
Partner — Cypress Lending Group, LTD
9180 Gallerla Ct., Ste 600
Naples, FL 34109
91811 (;411 is C'Mi 1. Suite 601
Napim Flndda.! I Ittl)
'LM!6449 1811 • I'ar: Y:IP bI!L 18111
bewmmenl +�•IIduJdinp xont
„w w.e6dw1'Zig,.rnm
ATTACHMENT V