Agenda 10/11/2022 Item #16A 8 (Development guaranty for an Early Work Authorization for work with Randall at Orangetree)10/11/2022
EXECUTIVE SUMMARY
Recommendation to authorize the Clerk of Courts to release a Performance Bond in the amount of
$74,600 which was posted as a development guaranty for an Early Work Authorization (EWA)
(PL20220000820) for work associated with Randall at Orangetree.
_____________________________________________________________________________________
OBJECTIVE: To release a security which was posted as a development guaranty.
CONSIDERATIONS: The Growth Management Division routinely accepts securities administratively
as guaranties for early work improvements pursuant to Section 10.01.02 B of the LDC. The work
associated with this security has been inspected and the developer has fulfilled his commitments with
respect to this security. The performance security was posted as security for clearing and site filling
associated with an Early Work Authorization for Randall at Orangetree PPL, (PL20210002196). On June
14, 2022, the PPL was approved by the Board of County Commissioners and the bond is no longer
required. A recent inspection confirmed that the developer has fulfilled the commitments of the EWA.
FISCAL IMPACT: There is no fiscal impact associated with this Executive Summary.
GROWTH MANAGEMENT IMPACT: There is no growth management impact associated with this
Executive Summary.
LEGAL CONSIDERATIONS: This item has been approved as to form and legality, and requires a
majority vote for Board approval. - DDP
RECOMMENDATION: To authorize the Clerk of Courts to release the Performance Bond in the
amount of $74,600. Development Review will issue a Memorandum to the Clerk of Courts upon approval
of this item by the Board of County Commissioners, advising the Clerk of this action.
Prepared by: Lucia S. Martin, Associate Project Manager, Development Review Division
ATTACHMENT(S)
1. Location Map (PDF)
2. Bond Basis (PDF)
16.A.8
Packet Pg. 184
10/11/2022
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.A.8
Doc ID: 23206
Item Summary: Recommendation to authorize the Clerk of Courts to release a Performance Bond
in the amount of $74,600 which was posted as a development guaranty for an Early Work Authorization
(EWA) (PL20220000820) for work associated with Randall at Orangetree.
Meeting Date: 10/11/2022
Prepared by:
Title: Technician – Growth Management Development Review
Name: Lucia Martin
08/30/2022 2:59 PM
Submitted by:
Title: Environmental Specialist – Growth Management Department
Name: Jaime Cook
08/30/2022 2:59 PM
Approved By:
Review:
Growth Management Operations & Regulatory Management Kenneth Kovensky Additional Reviewer Completed 08/30/2022 4:25 PM
Growth Management Department Diane Lynch Growth Management Department Completed 09/01/2022 7:12 PM
Engineering & Natural Resources Jack McKenna Additional Reviewer Completed 09/02/2022 2:04 PM
Growth Management Development Review Brett Rosenblum Additional Reviewer Completed 09/06/2022 8:28 AM
Growth Management Department Jaime Cook Division Director Completed 09/06/2022 3:43 PM
Growth Management Department Jeanne Marcella Transportation Skipped 09/07/2022 9:52 AM
Growth Management Department James C French Growth Management Completed 09/12/2022 9:41 PM
County Attorney's Office Derek D. Perry Level 2 Attorney Review Completed 09/21/2022 1:00 PM
Office of Management and Budget Debra Windsor Level 3 OMB Gatekeeper Review Completed 09/21/2022 1:30 PM
County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Completed 09/21/2022 2:04 PM
Office of Management and Budget Laura Zautcke Additional Reviewer Completed 10/03/2022 3:36 PM
County Manager's Office Geoffrey Willig Level 4 County Manager Review Completed 10/04/2022 9:30 AM
Board of County Commissioners Geoffrey Willig Meeting Pending 10/11/2022 9:00 AM
16.A.8
Packet Pg. 185
RANDALL AT ORANGETREE
LOCATION MAP
16.A.8.a
Packet Pg. 186 Attachment: Location Map (23206 : EWA Bond Release - Randall at Orangetree)
EARLY WORK PERFORMANCE AGREEMENT
THIS EARLY WORK PERFORMANCE AGREEMENT entered into this (X t4 day of
-14 tt nL- .2022, between RCDG Partners LLC hereinafter referred to as "Developer,"
and the Board of County Commissioners of Collier County, Florida, hereinafter referred to as the
"Board".
WHEREAS, Developer has applied for an early work authorization in accordance with the
Collier County Land Development Code including but not limited to Section 10.01.02.8
(collectively, the "Early Work Regulations"); and
WHEREAS, the Early Work Regulations require Developer to post appropriate
performance guarantees to ensure compliance with the Early Work Regulations and Early Work
Authorization Permit No. PL20220000820 (the "Early Work Permit").
NOW, THEREFORE, in consideration of the foregoing premises and mutual covenants
hereinafter set forth, Developer and the Board do hereby covenant and agree as follows:
Developer agrees to comply with the Early Work Regulations and the Early Work
Permit (the "Early Work").
Developer herewith tenders its early work performance security (attached hereto
as Exhibit "A" and by reference made a part hereof) in the amount of $74.600.00
The Early Work shall not be considered complete until Developer notifies the
County that the Early Work is complete and the flnal Early Work is reviewed and
approved by the County Manager or designee for complrance with the Early Work
Regulations.
The County Manager or designee shall, within sixty (60) days of receipt of
notification by Developer in writing that the Early Work is complete, either. a) notify
Developer in writing of his approval of the Early Work; or b) notify Developer in
writing of his refusal to approve the Early Work, therewith specifying those
conditions which Developer must fulfill in order to obtain the County Manager's
approval of the Early Work.
ln the event Developer shall fail or neglect to fulfill its obligations under this
Agreement, upon certification of such failure, the County Manager or designee
may call upon the early performance security to secure satisfactory completion,
repair and maintenance of the Early Work. The Board shall have the right to
conslruct and maintain, or cause to be constructed or maintained, pursuant to
public advertisement and receipt and acceptance of bids, the Early Work. The
Developer, as principal underthe early performance security, shall be liable to pay
and to indemnify the Board, upon completion of such construction, the final total
cost to the Board thereof, including, but not limited to, engineering, legal and
1
2
3
4
5
6
ln the event of default by Developer or failure of Developer to complete the Early
Work within the time required by the Early Work Regulations and Early Work
Permit, Collier County, may call upon the early work performance security to insure
satisfactory completion of the Early Work.
16.A.8.b
Packet Pg. 187 Attachment: Bond Basis (23206 : EWA Bond Release - Randall at Orangetree)
contingent costs, together with any damages, either direct or consequential, which
the Board may sustain on account of the failure of Developer to fulfill all of the
provisions of this Agreement.
All of the terms, covenants and conditions herein contained are and shall be
binding upon Developer and the respective successors and assigns of Developer.
lN WTNESS WHEREOF, the Board and De
7
executed by their duly authorized representatives th
SIGNED IN THE PRES CE OF:
caused this Agreement to be
day of l-,2022
RCDG Pa(ners, LLC
Christopher Davis, Manager
Evidence of Signing Authority attached
hereto as Exhibit "8".
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COL]NTY , FLORIDA
By
J alme Cook, Director
Development Review Division
as designee ofthe County Manager
pursuant to Resolution No. 20 I 5-1 62
veloper have
is .Iss!t'
sig
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Printed Name
Sign:
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ATTEST
Crystal K. Kinzel, CLERK
By
Clerk ofthe Circuit Court & Comptroller
Collier County, Florida
Ap das a ality
Derek D. Perry
Assistant County Attorney
16.A.8.b
Packet Pg. 188 Attachment: Bond Basis (23206 : EWA Bond Release - Randall at Orangetree)
EXHIBIT IIA"
Errlv r,rcrk Performance Security
16.A.8.b
Packet Pg. 189 Attachment: Bond Basis (23206 : EWA Bond Release - Randall at Orangetree)
EXHIBIT "A"
PERFORMANCE BOND
FOR EARLY WORK AUTHORIZATIONS
KNOVV ALL PERSONS BY THESE PRESENTS: that
RCDG Parhers, LLC
6728 Jam6torn Drive
Alpharctta, GA 30005
(hor€inaftor reEn€d b as "Oirn€fl and
M6r$anb Netional Bonding lnc
6700 w6sbwn Parl$tay, wed D€3 1rloin68, lowe 5@68
Phono No. 1€00€78-8'1 71
(hereinaffer refanrd to as 'SurBy') are held and firmly bound unto Collier County, Florida, (h€reinafur
rebn€d b es 'County') in the btal aSgr€gab sum of @ Dolbls
(37t3.600.@) in lsrtul money of the United StaEs, br the payment of whicfi sum urell ard fuv b be made,
ws bind ourselves, our heira, e)(ecubrs, adminisbebB, successoB and assigns, iointy and sar€rally, fitmly
by thes€ presents. Oflner and Surety ar3 used br singular or plural, as the conbxt requirB.
THE CONDrnON OF THIS OBUGATION is sudr hat wharcas, he Ovuner has submitbd fur appro/al by
the Boad a certain Early Work Authorization Permlt No. P120220000820 and that csrtain Early Work
Autrorizstbn stiall indudo sp€cific improv€mentB whirfi arB r€quirBd by Collior County Ordinanoc and
Reaolutions (heroinafier 'Land D€velopm€nt Regubtidts'). This obligation of the Surety shall commence
on th6 dab thb Bond iB executed and Ehall continue untl he complelion of the work and appforEl by the
CcEnty ofhe sp€cifE improrements d€scribed in the Land Developrnent Regulatbns, or until issuance of
a subs€quent final development order such as an Site Darebpment Plan (SDP) or SuMivision Plat and
Plens (PPL) (herBinafur the 'Guarenty Period")or until rsphced by a new bond in the event of s chenge in
O nership.
NOW, THEREFORE, if the Ofln€r shall u,ell, fuly and hithfully perbrm ils obligEtE rs and duues in
accordanc6 wih h€ Land Dar€lopment ReguHions during the guaranty p€riod established by tho County,
and the Orner shall salisfy all deims and d€mands in@r€d and sha[ fu[y indemniry and save hsrmless
tl€ County from and against all co8ts and damag€s which it may sufrer by reason of olvne/3 failuE b do
so, ard shall reimbuEe and repay the County all outlay and agense which tre County mey indJr in making
good any default, then this ouigafion shall be vold, othe]wise b r€main in full brce and eftct
PROVIDED, FURTHER, thet th€ said Surety, fur valu6 r€ceivBd h€r€by, Btipulatss and agr€€s lhat no
cfiengs, exbnsk n of tim€, alEratlon, addtton or d€letion b the propo€€d sp€dfic improv€m€nE shall in
any rvay aftci ite obligation on thb Bond, and it does her€by weive nofico of any such change, exbrcion
of 0mo, altE affon, addition or deleton to the proposed sp€cmc improremonts.
PROVIDED FURTHER, tret it is €xpr€rsly agreed thd the Bond shall b€ de€med amended
aubmatbally and immediaEly, wihcut bmal and BeparaE amendmenE herEto, so as b bind the Owner
and the Sur€ty b the tull end falhful pertomance in accordance with the Land De\relopm€nt Reguhtirns.
The brm "Amendn€Irt" whercv€r us€d in thb Bond, and v{h€ther r€Ering to thb Boid, or o0ler docum€nts
Bhall inclde any alt€ralion, addition or modificalion of any charac{er what8oever.
lN WTNESS WIIEREOF, tha parties hareb hare ca$ad thb PERFORMANCE BOND b be exeorEd
thls 1 7h day of t\rarc,l', 2022.
Bond No. NGA1792
16.A.8.b
Packet Pg. 190 Attachment: Bond Basis (23206 : EWA Bond Release - Randall at Orangetree)
WITNESSES RCDG Partners, LLC
Christopher Davis, Manager
(Provide Proper Evidence of Authority)
OF
5ig n
Printed Name
Sign H-114.-
PrintedName breP'+ €' Kcss
ACKNOWLEDGEMENT
EGOING PERFORMANCE BOND WAS ACKNOWLEDGED
CAL PRESENCE OR E ONLINE NOTARIZATION THIS
BEFORE
-)31'onv
BY MEANS
,/L\c. , Cx OFMETHE FORI;I PHYSI2o-}}BY (NAME OF ACKNOWLEDGER) AS (TITLE) OF (
PERSONALLY KNOWN TO ME,OR HAS PRODUCED I'IF
Notary Public - State of 4D{4.
NAME OF COMPANY) WHO IS
AS IDENTIFICATION.
W?arro*s
Printed Name
WITN ESSES:
Printed Name e Cole
Printed Name Kris Daschbach
ACKNOWLEDGMENT
JUE FOREGOING PERFORMANCE BOND WAS ACKNOWLEDGED BEFORE ME BY MEANS OFM PHYSICAL PRESENCE OR DONLINE NOTARIZATION THIS 17Ih DAY OF MATCh2022-, BY Jennifer Anderson AS Attorney-rn-Fact OF Merchants National Bondtng i;;f,VHO i3
PERSONALLY KNOWN TO ME, OR HAS PRODUCED N/A _ AS tDENTtFtCAitON.
f
STATE OF GCOTIiU.couurvoF---ffitt-
(SEAL)
iennifer Anderson, Atto rn ey- in - F a ct
(Provide Proper Evidence of Authority)
0^**- C, U-D
)
,/.-
STATE OF_Georgia_
COUNry OF Cherokee_
16.A.8.b
Packet Pg. 191 Attachment: Bond Basis (23206 : EWA Bond Release - Randall at Orangetree)
Notary Public - State of _Georgia
Printed Name
14-EIS-02650/6
Ray
tt I tll,
3
R G\ll t
7
)
16.A.8.b
Packet Pg. 192 Attachment: Bond Basis (23206 : EWA Bond Release - Randall at Orangetree)
MExcrrnrqi*\
B()N DI NG COMPANY-
POWER OF ATTORNEY
KnowAllPersons By These Preseris, that MERCHANTS BONDING COMPANY (MUTUAL) and [,tERCHANTS NATIONAL BONDING, lNC.,
both being corporations of the State ol lowa (herein collectively called the "Companies') do hereby m ake, constitute and appoint, individ ually,
David Bryan Bunuss; Eugene Northcutl; Jenniler Anderson: Odie E Wlson
their true and lawful Attorney(s)-rn-Fact, to sign its name as surely(ies) and to execute, seal and acknowledge any and all bonds, undertakangs,
contracts and other witten inslruments in the nature lhereol, on behalf of the Companies in their business ol guaranteeing the fdelity
ol persons, guaranteeing the performance of conlreds and executing or quaranteeing bonds and undertakings required or permitted in any
aclions or proceedings allowed by law.
This Power-ot-Attomey is granled and is signed and sealed by facsimile under and by authority of the following By-Laws adopled by the Board
of Directors of Merchants Bonding Company (Mutual) on April 23,2011 and amended August '14, 2015 and adopled by the Board of Directors
of lrerchantsNational Bonding, lnc., on October 16, 2015.
"The Presidenl, Secretary, Treasurer, or any Assistant Treasurer or any Assistant Secretary or any Vice President shall have power and authority
to appoant Attomeys-in-Fact, and to aulhorize lhem to execute on behalf of the Company, and attach the seal of the Company therelo, bonds and
undertakings, recrgnizances, conlrecls ofindemnity end other writings obligatory in the neture thereol'
"Ihe signature ot any authorized officer and the seal ofthe Company may be affxed by facsimile or electronic transmission to any Power ofAttomey
or Certifcation thereof aulhorizing the executon and delivery of any bond, undertaking, recognizance, or other suretyship obligations of the
Company, and sucfi signature and seal rvhen so used shall have the same force and eflect as though manually fixed."
ln conneclion with obligations in favor ofthe Flodda Department of Transportation only, it is agreed that the power and aut hoaity hereby given to the
Attomey-in-Facl includes any and all consents lor the release of retained percentages and/or fnal estimates on engineering and construclion
contracts required by the State of Florida Department of Transportation. lt is fully understood that consenting to the State ofFlorida Department
ofTransponation making payment of the fnal estimate to the Contraclor and/or its assignee, shall not relieve lhis surety company oI any of
i(s obligations under its bond.
ln connection with obligatjons an favor of the Kentucky Departrnent of Highways only, it is agreed lhat the power and authority hereby given
Io the A(omey-in-Facl cannot be modified or revoked unless prior written personal notice of such intent has been given lo the Commissioner-
Department ol Highways ofthe Commonwealth of Kentucly at least thidy (30) days prior to the modifcation or revocation.
ln Wtness Whereot, the Companies have caused this instrument to be signed and sealed this 13th day of January , 2O2O
.,;i{ii};,le;,
;-:.is" -"- '$€l
-..-o, . 2003 .j.o .:,'.rq::*.::$
,ri$i?;'ia.i4;:Ei-t -o- e:-:. :2: Y; D.
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IERCHANTS BONDTI{G CO PANY ( UTUAL)
IllERCHANTS NATIONAL BONDING. INC.
-/'y'i-"/6
STATE OF IOWA
COUNTY OF DALLAS ss
On this this 13lh day of January 2020 , before me appeared Larry Taylor, lo me personally known, who being by me duly swom
did say that he is Presidenl of MERCHANTS BONDING COMPANY (MUTUAL) and MERCHANTS NATIONAL BONDING, lNC.; and that the
seals affixed to the foregoing inslrument are the Corporate Seals ofthe Companies; and that the said instrument was signed and sealed in behalf
of lhe Companies by authority of their ctive Boards of Directors
Ot ; g- q5-,*
(Expiration of notary's commission
does not invalidate this instrument)
oz
AIICIA K GXAI
Conmisioi NuYba767{30
tly Coonisslon Eryires
^prit
1,2020
Notary Public
l, Wlfiam Warner, Jr.
'.'
POA 001 8 (3/17)
17th day of March ,2022
-o-
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Secretary
16.A.8.b
Packet Pg. 193 Attachment: Bond Basis (23206 : EWA Bond Release - Randall at Orangetree)
EXH!BIT IIB''
Signing Authority
16.A.8.b
Packet Pg. 194 Attachment: Bond Basis (23206 : EWA Bond Release - Randall at Orangetree)
(Requesto/s Name)
(Address)
(Address)
(City/StatezidPhone tr)
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(Business Entity Name)
(Document Number)
Certified Copies _ Certificates of Status _
Otfice Use Only
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16.A.8.b
Packet Pg. 195 Attachment: Bond Basis (23206 : EWA Bond Release - Randall at Orangetree)
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f)ilision of Corlxrrltions
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Namc of l-inritcd Liabilirl, Courpanl,
'I-hc encloscd "Applicrtion bi Foreign l-inrited l-iabilitl' Conrpan.,- for,\uthorization lo'lransacr Busincss in lilorida." Cenificatc of
lhistcncc. and chcck are submittcd to rcgistcr thc abovc rcfcrcnced lbrcign lirrrited liability conrpanl to transact busincss in Florida.
l'leasc rcturn all corrcspondrocc concerning this rnaller lo thc follorving:
.\rnhcr \lt'altr
.\irnlc ol'l)crson
Schullqn \\'ard 'l'urncr & \\'ciss. l-l.l'
l:irm/Conrprnt
260 Pcachtree Strcct N\\'. Suilc 2700
,\ dd rc ss
r\tlanta. Ccorgia 30i0i
Citl/Statc and Zip Codc
Il-nrail uddrcss: (to be used for futurc annual ,cpo notification)
For l'unhcr inlbrmation conccrning this rnattcr. please call:
.\nrbcr i\lcakcr .l0l 68E-6E06
Nrmc ofContact Pcrson
at
i\lsilinp Address;
Rcgistralion Sr'ction
Division ol' Corporations
P.O. Ilos 6i2 7
'l'allahasscc. FI- 323 I 4
f)41'ti rnc'[c lcphonc n"un bcr
Registration Section
Division of' Corporations
'l'he Ccntrr- o l"l'allahasscc
24 l> N. i\.lonroc Strc'ct. Suitc [i l0
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Arca Codc
Strccl Addrcss:
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= sll5.oo l;iling l:cc c sli0.00 Filingtrcc & o sl.<5.00 l:iling l:r-'e &
Ccnificatc of Statrrs Cenified Copl
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16.A.8.b
Packet Pg. 196 Attachment: Bond Basis (23206 : EWA Bond Release - Randall at Orangetree)
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16.A.8.b
Packet Pg. 197 Attachment: Bond Basis (23206 : EWA Bond Release - Randall at Orangetree)
8. For ini(ial indering purposcs. lisl nanlrs. titlc or capacil) and iddrcsscs ol'lhc prirnar)' nrcmbcrs/managers or pcrsons authorized to
managc lup ro si\ (6) rotall:
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Inrool:liul Noticc: [Jst'an attlchnrcnt to rc pon rlorc than si\ (6). lhc attachllrcnl rvill bc intagtd lbr rcponing purposcs onll. Non'
indesrd indir.iduals nr:r1, bc addcd to the indcs rvhcn filing lour florida l)rpannrcnt ofStatc r\nnual Repon lornt.
9. .\lacherl is a cenillcate ofcristcnce. no rrorc rhan 90 da1's old. duly authenricotcd b1' thc oflicial hlving custodl'ofrccords in thc
jurisdicrion undcr the larl of u hich ir is ortsanizcd- ( lf rhe cenillcarc is in a foreign language. a translatior of lhe cenificatc under oath
oIlhe trilnslato. nlust bc subn,tittcd)
10. 'l'his docuorcnr is crccutcd in accordancc rvirh secrion 60i.020j ( | ) (b). Iloridr Slltutes. I xm a\rarc lhat an! l'alsc in fornration
subnrittcdinadocumcnltolheDcpadntcntofStatccoostitutesalhirddcgreefelonlasprovidcdforins.8l7.155. l:.S.
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5ilrslu. ol .n lurho'n(d lEn,n
Eric L. Weiss. Esq.
Trt<J., p,n{.d Dnk oirit'a.
DOthcr
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16.A.8.b
Packet Pg. 198 Attachment: Bond Basis (23206 : EWA Bond Release - Randall at Orangetree)
Conrrol Nu bcr : I1250015
STATE OF GEORGIA
Secretary of State
Corporalions Division
,1lJ \\'est -l'orlcr
2 i\lartin Luthcr King.,lr. Dr.
r\lla nta. Ccorgia .103-14-1530
CERTIFICATE OF ORG.\NIZAI'ION
I. Brad Ral-lenspcrgrr. thc Sccrclarv ol Statc and thc Corporation Conrnrissioncr o('thc Statc ol
(icorgia. hcrebv ccnilv trnticr thc scal of'nrv ofilcc that
RCI)G Parlncrs. Ll.C
a Don)c i( I-ioilcd l,iahilil!' Comprnl'
\VlTNllsS nrv hund and ol'ficial scal in rhc Cirv ol'Atlanra
and thc Strtc ol'Gcorgia ol 09/l{/2021 .
A^,4 AA"^-/5P-
Brarl Raffcnspergcr
Secretan, of State
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has bccn dull,organizcd under thc laws ofthe State ol'Ceorgia on 0912212021 by thc liling ofarticlcs ol'
organizltion in thc Ol'licc of thc Sccretary ol S(a(c and by tlrc paying ol'l'ecs as provided by 'l'itle l,l ol'the
Ol'ficial Code ot Gcorgia Annotatcd.
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OPERATING AGREEMENT
THIS OPERATING AGREEMENT is entered into by CHILDCARE MCFARLAND,
LLC, a Georgia limited liability company, as the sole and initial Member of the Company,
as of the 22nd day of September, 2021.
WITNESSETH
NOW, THEREFORE, lN CONSIDERATION OF the premises and of the terms and
conditions hereinafter set forth, the undersigned, intending to be legally bound, hereby
agrees to the following terms and conditions:
GENERAL PROVISIONS
1.1 Definitions. Each ca pitalized term used in this Agreement and not defined
in the text hereof shall have the meaning set forth on Exhibit A attached hereto and made
a part hereof.
1.2 Formation. The Member hereb y forms a limited liability company pursuant
to the Act to be governed by the provisions hereof. The Member has caused to be
executed and delivered to the Secretary of State of Georgia, and hereby ratifies, the
Articles of Organization, attached hereto and made a part hereof as Exhibit B.
1.3 Name. The Company shall operate underthe name of "RCDG PARTNERS,
LLC" or under such other name(s) as the Manager shall, from time to time, determine.
1.4 Business of Comoanv. The Company is formed to engage in any laMul act
or activity for which limited liability companies may be formed under the Act and may
engage in any and all activities necessary and incidental to the foregoing.
1.5 Princioal Place of Business. The principal place of business of the
Company shall be located at 2859 Paces Ferry Road SE, Suite 1140, Ailanta, Georgia
30339, or at such other place as the Manager shall, from time to time, determine.
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OF
RCDG PARTNERS, LLC
The Member desires to form the Company under the Act for the purposes set forth
herein and to be treated as a single member limited liability company, disregarded for
federal income tax purposes. Accordingly, the Member and the Company desire to enter
into this Agreement in order to set forth the terms and conditions of the operation and
management of the business and affairs of the Company, and to determine the rights and
obligations of its Member.
ARTICLE I
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1.6 Reqistered Aqent and Reoistered Office. The re gistered agent for the
service of process and the registered office of the Company shall be the person and the
location set forth in the Articles of Organization or as otherwise determined, from time to
time, by the Manager in accordance with the Act.
2.1 Manaqe r Authoritv.Subject to the limitations imposed by this Agreement
and by the Act, the entire management and control of the property, business, and affairs
of the Company shall be vested in the Manager. The Manager shall have full and
complete power, authority, and discretion, on such terms and conditions as such Manager
shall deem appropriate, to do all things necessary or convenient to carry out the business
and affairs of the Company.
2.2 Manaqer. The initial Manager shall be CHRISTOPHER DAVIS. There
shall, at all times, be at least one (1) Manager unless some other number shall be agreed
upon from time to time by the Member.
2.3 Successor Manaqers. lf CHRISTOPHER DAVIS shall be unable or
unwilling to act as Manager, CHRISTOPHER DAVIS shall have the power to designate
such Manager's successor in writing. Subject to the preceding sentence:
(a) ln the event of the death, resignation, removal, or retirement of the
Manager, such Manager's successor shall be the personal representative
of such Manager.
(b) Except as provided by Section 2.3(a) hereof, in the event of the death,
resignation or retirement of the Manager, such Manager's successor shall
be designated by the Member in writing.
(c) Any Manager, at any time acting hereunder, shall only be removed by the
Member in writing.
2.4 Determinations of Manaoers. Except as otherwise provided herein, if there
shall be more than one (1) Manager acting hereunder, all matters pertaining to the
Company's business and activities shall be determined by the majority consent of the
Managers without the requirement of a meeting or notice to any party. Failure to obtain
such consent of the Managers shall be deemed to be a unanimous decision of the
Managers not to act.
2.5 Limitations on Au horitv of Manaoer The Manager shall have no authority
(a) do any act in contravention of this Agreement;
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ARTICLE II
MANAGEMENT
to:
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(b) do any act which would make it impossible to carry on the ordinary business
of the Company;
(c) confess a judgment against the Company; or
(d) possess Company property, or assign the rights in specific Company
property, other than for a Company purpose.
2.6 Duties of Manaqer. The Manager shall manage, or cause to be managed,
the affairs of the Company in a prudent businesslike manner. The Manager shall devote
such part of such Manager's time to the Company's affairs as shall, in such Manager's
sole and absolute discretion, be reasonably necessary for the proper conduct of such
affairs; provided, however, that no Manager shall be required to devote such Manager's
entire time or attention to the business of the Company unless such Manager is otherwise
required to devote such amount of time under the terms of an employment agreement
with the Company.
2.7 Aqents; Officers. The Mana ger may appoint such agents and offlcers and
delegate such authority to the Member or any non-Member as the Manager shall deem
appropriate for the operation and management of the Company. Any implication in this
Agreement to the contrary notwithstanding, no agent shall have any authority to, nor shall
any agent permit the Company to, take any action that requires consent of the Member
or the Manager as required by the terms of this Agreement, unless the required consent
of the Member or the Manager shall have been obtained.
2.8 Execution of Documents. An y agreement or other document purporting to
bind the Company to any action or course of action shall be signed and delivered by the
Manager for, on behalf of, and in the name of, the Company. All of the powers,
authorities, and discretions granted herein to the Manager may be exercised by any
Manager and any Manager may have sole custody of any or all property the Company.
Any person dealing with any Manager may rely on the opinion of counsel as to such
Manager's rights hereunder.
2.9 Bank Accounts. All funds of the Company shall be deposited in the
Company's name in one or more accounts at such institutions as the Manager shall, in
the Manager's sole and absolute discretion, from time to time, determine. Withdrawals
from any such accounts shall be made upon such signature(s) as the Manager shall, in
the Manager's sole and absolute discretion, from time to time, authorize.
2.10 Annual Report for Secretarv of State. The Manager shall deliver to the
Secretary of State, for filing, an annual report in accordance with Section 14-11-1103 ol
the Act.
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ARTICLE III
RIGHTS AND DUTIES OF THE MEMBER
Notwithstanding (i) the delegation of the management of the Company to the
Manager as set forth in this Agreement, (ii) any other provision of this Agreement, or (iii)
any provision of law to the contrary, the Member shall have the power to amend and
restate this Agreement at any time, and from time to time.
ARTICLE IV
LIABILITY AND COMPENSATION
4.1 No Personal Liability. No Member , Manager, agent, or employee of the
Company shall be liable as such for the liabilities, debts, or obligations of the Company.
The failure of the Company to observe any formalities or requirements relating to the
exercise of its powers or management of its business or affairs pursuant to this Agreement
or the Act shall not be grounds for imposing personal liability on the Member or any
Manager for liabilities, debts, or obligations of the Company.
4.2 Standard of Care. The Member and the Manager shall act in a manner
believed by each such Member or Manager in good faith to be in the best interests of the
Company. The Member shall act in a manner believed by the Member in good faith to be
in the best interests of the Company and with the care an ordinarily prudent person in a
like position would exercise under similar circumstances. The Member and the Manager
shall be entitled to rely on information, opinions, reports, or statements, including but not
limited to financial statements or other financial data, if prepared or presented by (i) the
Member, the Manager, or employees of the Company whom the Member or the Manager
reasonably believes to be reliable and competent in the matter presented or (ii) legal
counsel, public accountants, or other persons as to matters such Member or Manager
reasonably believes are within the person's professional or expert competence. The
Manager is not liable to the Company, the Member, or any other Manager for any action
taken in managing the business or affairs of the Company if such Manager performs the
duty of such Manager's office in compliance with the standard contained in this Section
4.2. fhe Manager has not guaranteed, nor shall have any obligation with respect to, the
return of the Member's Capital Contribution or profits from the operation of the Company.
The Manager shall not be liable to the Company or to the Member for any loss or damage
sustained by the Company or the Member except loss or damage resulting from
intentional misconduct or knowing violation of law or a transaction for which the Manager
received a personal benefit in violation or breach of the provisions of this Agreement.
(a) Neither the Member nor any employee, agent, or independent contractor of
the Member (for purposes of this Article lV, collectively, the "Agents") shall,
in carrying out duties hereunder, be liable to the Company orto the Member
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4.3 lndemnification.
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for any (i) action or course of conduct taken in good faith and reasonably
believed to be in the best interests of the Company or (ii) errors of judgment,
but shall only be liable for willful misconduct, gross negligence, willful
breaches of obligations under this Agreement, or other willful or grossly
negligent breaches of fiduciary duty.
(b) Subject to the provisions of Section 4.4 hereof, the Manager, the Member,
and the Agents shall be indemnified or reimbursed, as the case may be, by
the Company, to the fullest extent permitted under the Act, against any
losses, judgments, liabilities, and expenses (including attorneys'fees and
amounts paid in settlement of any claims sustained by them) arising out of
any action or course of conduct of the Member, the Manager, or the Agent
in such Member's, Manager's, or Agent's capacity as a Member, Manager,
or Agent, if such action or course of conduct was not the result of gross
negligence or willful misconduct and if such Member, Manager, or Agent, in
good faith, reasonably believed that such action or course of conduct was
in the best interests of the Company; provided, however, that such
indemnification and agreement to hold harmless or reimbursement shall be
recoverable only from company assets.
(c) The benefits of this Section 4.3 shall run solely in favor of the parties to this
Agreement and shall not be deemed to create rights in any third party, nor
shall any such third party be deemed a third party beneficiary of this
Agreement.
4.4 Compensation: Re imbursement: Advances.
(a)Member Compensation and Reimbursemeq!. Unless authorized b y the
Manager, in the Manager's sole and absolute discretion, the Member shall
not receive any salary, fee, profit, or distribution except that to which the
Member may be entitled pursuant to this Agreement; provided, however,
that the Member may, in the Manager's sole and absolute discretion, be
reimbursed for all reasonable fees and expenses incurred by the Member
for administrative services necessary for the prudent operation of the
Company.
(b)ManaoeriAoent Comoens ation an d Reimbursement. Unless such fee is
approved by the Member, no Manager nor appointed agent shall receive
compensation from the Company; provided, however, that any Manager
and any appointed agent shall be reimbursed for all reasonable out of
pocket expenses incurred for administrative services necessary for the
prudent operation of the Company.
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ARTICLE V
CONTRIBUTIONS/CAPITAL ACCOUNTS/LOANS
5.1 lnitial Capital Contribution of the Member. The Member has contributed
such capital to the Company as set forth next to the Member's name on Exhibit C attached
hereto and made a part hereof.
5.2 Additional Capital Contributions. The Member shall have no obligation to
make any additional Capital Contributions to the Company. The Member may make
additional Capital Contributions to the Company as the Member may determine in the
Member's sole and absolute discretion.
5.3 Loans. The Member may make loans to the Company on such reasonable
terms and conditions as may be approved by the Manager.
5.4 lnterest. No interest shall be paid by the Company with respect to any
Capital Contribution.
All items of income, gain, loss, deduction, and credit shall be allocated to the
Mem ber.
All distributions of cash or other assets of the Company shall be made and paid to
the Member at such time and in such amounts as the Manager may determine in the
Manager's sole discretion.
TRANSFER OF MEMBERSHIP INTEREST
The Member may, with or without the prior written consent of the Manager, sell,
transfer, assign, hypothecate, encumber, convey, or othenarise dispose of the Member's
membership interest in the Company.
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(c) Advances. Subject to the provisions of this Section 4.4, the Company may,
in the Manager's sole and absolute discretion, make advances to its
employees, the Manager, and other agents for expenses that shall be
incurred in the ordinary course of business.
ARTICLE VI
ALLOCATIONS
ARTICLE VII
DISTRIBUTIONS
ARTICLE VIII
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ln the event of the death, incapacity, or dissolution of a Member, such Member's
rights and obligations under this Agreement shall devolve upon such Member's personal
representative or successor in interest. Such successor shall, promptly after any such
event, deliver to the Manager such documentation as the Manager may reasonably
require to evidence such succession in interest.
10.1 Events of Dissolution. The Com pany shall be dissolved upon the first to
occur of the following events (for purposes of this Article X, each, an "Event of
Dissolution"):
(a) a writing by the Member, or
(b) the entry of a decree of judicial dissolution under the Act
1O.2 Execution of Documents. The Mana ger shall make, execute, deliver, and
record any and all documents required or deemed necessary or desirable by the Manager
to effect and reflect the dissolution of the Company.
Notwithstanding anything contained herein to the contrary, pursuant to Regulation
301.7701-3(b), the Company shall be disregarded as an entity separate from the Member
for federal income tax purposes unless and until the Member causes the Company to file
an election pursuant to Regulation 301.7701-3(c).
The Company shall only be required to keep, at such location as the Manager
shall, in the Manager's sole and absolute discretion, from time to time, determine, the
following records:
(a) A copy of the Articles of Organization of the Company and all amendments
thereto; and
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ARTICLE IX
DEATH. INCAPACITY. OR DISSOLUTION
ARTICLE X
DISSOLUTION
10.3 Windino-uo of Affairs and Distribution of Assets. Upon the occurrence of
an Event of Dissolution, the Company shall cease to carry on its business and the
Manager shall wind up the Company's affairs and dissolve the Company.
ARTICLE XI
TAXATION
ARTICLE XII
BOOKS AND RECORDS
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(b) A copy of this Agreement, together with any amendments thereto
13.1 Benefit. This Agreement shall be binding upon and inure to the benefit of
the Member specifically named herein and, as provided in this Agreement, the Member's
legal representatives, successors, and assigns.
13.2 Governinq Law. This Agreement and all matters arising hereunder shall be
construed and interpreted according to, and governed by, the laws of the State of Georgia.
13.3 Construction. ln the event any provision of this Agreement shall be found
to be void by a court of competent jurisdiction, the remaining provisions of this Agreement
shall nevertheless be binding with the same effect as though the void provision had not
been included herein.
13.4 Entire Aqreement. This Agreement contains the entire agreement of the
parties hereto, and no representation, warranty, covenant, or agreement not embodied
herein, oral or otherwise, shall be of any force or effect whatsoever.
13.5 Headinqs, Exhibits, and lnterpretation. The headin gs in this Agreement are
inserted for convenience only and are in no way intended to describe, interpret, define,
or limit the scope, extent, or intent of this Agreement or any provision hereof. All exhibits
referred to in this Agreement and attached hereto are incorporated herein by this
reference. The words "herein," "hereof," and "hereunder'' and other words of similar
import refer to this Agreement as a whole, as the same may from time to time be
amended, modified, or supplemented, and not to any particular section, subsection, or
clause contained in this Agreement. Wherever from the context it appears appropriate,
each term stated in either the singular or plural shall include the singular and the plural,
and pronouns stated in the masculine, feminine, or neuter gender shall include the
masculine, the feminine, and the neuter.
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8
The books and records shall be open to the reasonable inspection and examination of
the Member or such Member's duly authorized representatives during reasonable
business hours.
ARTICLE XIII
MISCELLANEOUS
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lN WITNESS WHEREOF, the undersigned has executed this Agreement to be
effective as of the date first set forth above.
MEMBER
CHILDCARE MCFARLAND, LLC, a Georgia
limited liability company
By:
CHRI DAVIS, Manager
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EXHIBIT A
DEFINITIONS
As used herein, the following terms shall have the meanings set forth below:
"Act" means the Georgia Limited Liability Company Act, sections 14-11-100, et seq.,
O.C.G.A., as amended from time to time (or the corresponding provision(s) of any
succeeding law).
"Agreement" means this operating agreement as may be amended from time to time.
"Capital Contribution(s)" means the amount of cash or other property contributed by the
Member for such Member's interest in the Company equal to the sum of the Member's
initial Capital Contributions plus the Member's additional Capital Contributions, if any,
made pursuant to Sections 5.1 and 5.2, respectively.
"Code" means the lnternal Revenue Code of 1986, as amended from time to time.
"Company" means RCDG PARTNERS, LLC
"lncapacity" means the Member is incapable by reason of a physical or mental impairment
of performing the activities required by this Agreement and performed by the Member
before such incapacity to a degree that adversely and materially affects the performance
of the Member's duties for Company with no reasonable expectation of recovery as
determined by an attending or treating physician of the Member.
"Manager" means CHRISTOPHER DAVIS, for so long as such Manager shall be able
and willing to act as Manager, or any successor Manager appointed pursuant to the terms
of this Agreement.
"Member" means CHILDCARE MCFARLAND, LLC, or the assignee or transferee of the
Member pursuant to the terms of this Agreement.
"Person" means any individual, partnership, corporation, limited liability company, trust,
or other entity.
"Regulations" means the Federal income tax regulations from time to time promulgated
under the Code by the lnternal Revenue Service and the Treasury Department.
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[Articles of Organization]
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EXHIBIT B
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Name of Member
CHILDCARE
MCFARLAND, LLC
EXHIBIT C
Address of Member
6728 Jamestown Drive
Alpharetta, GA 30005
lnitial Capital
Contribution of Member
$10.00
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