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Commissioner KowalEx parte Items – Commissioner Daniel Kowal COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS AGENDA April 11th , 2023 CONSENT AGENDA 16A5 This item requires that ex parte disclosure be provided by Commission members. Should a hearing be held on this item, all participants are required to be sworn in. Recommendation to approve for recording the minor final plat of Broadview Estates, Application Number PL20210003212. (District 1) Meetings Correspondence e-mails Calls NO DISCLOSURE FOR THIS ITEM 16A6 This item requires that ex parte disclosure be provided by Commission members. Should a hearing be held on this item, all participants are required to be sworn in. Recommendation to approve for recording the final plat of Hacienda Boulevard Phase One, Application Number PL20220001391, approval of the standard form Construction and Maintenance Agreement, and approval of the performance security in the amount of $1,308,086.70. (District 1) Meetings Correspondence e-mails Calls NO DISCLOSURE FOR THIS ITEM 16A7 This item requires that ex parte disclosure be provided by Commission members. Should a hearing be held on this item, all participants are required to be sworn in. Recommendation to approve for recording the final plat of Logan Towns, Application Number PL20220001513, approval of the standard form Construction and Maintenance Agreement, and approval of the performance security in the amount of $855,817.88. (District 3) Meetings Correspondence e-mails Calls NO DISCLOSURE FOR THIS ITEM Ex parte Items – Commissioner Daniel Kowal COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS AGENDA April 11th , 2023 SUMMARY AGENDA 17A This item requires that ex parte disclosure be provided by Commission members. Should a hearing be held on this item, all participants are required to be sworn in. Recommendation to approve an Ordinance of the Board of County Commissioners of Collier County, Florida amending Ordinance No. 99-69, as amended, the Forest Glen of Naples Planned Unit Development (PUD), by adding warehousing and flex space uses including specialty trade contracting, minor fabrication, and manufacturing as principal uses in addition to previously permitted commercial uses on the Commercial Tract located at the southeast corner of the intersection of Collier Boulevard and Beck Boulevard, subject to the limitation of 100,000 square feet for all uses on the Commercial Tract. The subject Commercial Tract consisting of 9.6+/- acres is part of the 635+/- acre PUD located in Section 2, Township 50 South, Range 26 East, Collier County, Florida. (PL20200002302) (District 1) Meetings Correspondence e-mails Calls NO DISCLOSURE FOR THIS ITEM All information has been filed electronically with Minutes and Records 14818926.1 9/19/2022 MEMORANDUM OF UNDERSTANDING This Memorandum of Understanding (“Agreement”) is made and entered into this ____ day of ________, 20____ by and between FOREST GLEN GOLF & COUNTRY CLUB MASTER ASSOCIATION, INC. (“Forest Glen”), whose mailing address is 3855 Forest Glen Blvd., Naples, Florida , and BBP REALTY, LLC (“BBP”) and NAPLES TLR, LLC (“TLR”) (BBP and TLR are collectively referred to as “Applicants” and the Applicants and Forest Glen are collectively referred to as the “Parties”). The Parties hereby enter into this Agreement in consideration of the mutual covenants, which include the faithful performance by Applicants and Forest Glen’s promise not to oppose the Application as set forth herein: RECITALS WHEREAS on July 7, 2022, the Applicants applied to amend the Forest Glen of Naples Planned Unit Development Zoning District (the “PUD”) to allow for commercial and business park flex space (the “Application”); WHEREAS the County commented on the Application for clarification regarding the use of the term “Business Park” and since that time, Applicants have instead referred to the use 31 as warehousing and flex space rather than Business Park as defined by County Ordinance. WHEREAS the Applicants seek to develop the property referred to as I.D. Number 0039880204 and generally described as 9.6 +/- acres located at the southeast corner of Collier Boulevard and Beck Boulevard (the “Property”); WHEREAS the Forest Glen PUD currently allows the Property to be developed for mixed use (e.g. commercial, recreation and open space) as defined by Collier County Ordinance; WHEREAS on July 7, 2022, in connection with the Application, the Applicants submitted their Evaluation Criteria stating that the intent of the PUD Amendment affecting the Property would be to permit, light manufacturing warehousing and contractor uses in addition to previously approved uses; WHEREAS Forest Glen was concerned that the Application, proposed additional uses and/or design elements were not compatible with or complimentary to its community or the design elements or uses allowed by current zoning; WHEREAS although the Application and Evaluation Criteria currently state that Preserves are not proposed on the Property, Forest Glen desires the Application and Evaluation Criteria reflect that Preserve space is proposed on the Property (as the term is defined by Collier County ordinance and the PUD); WK 2FWREHU  14818926.1 9/19/2022 WHEREAS although the Application provides that the PUD shall identify the location of appropriate buffers, Preserves and open spaces at the Property, Forest Glen desires additional clarity and an agreement with the Applicants regarding buffer location, size, use of open spaces and the designation of Preserve at the Property; WHEREAS due to the type of Application, a Neighborhood Information Meeting (“NIM”) was required and scheduled to occur on September 6, 2022; WHEREAS Forest Glen advised the Applicants that it would formally object and oppose the Application at the NIM and future public hearings if certain agreements could not be reached amongst the Parties regarding the Application, development of the Property and future use of the Property; WHEREAS the Parties met on August 29, 2022, prior to the NIM and came to certain agreements to alleviate both Forest Glen’s and the Applicants’ concerns prior to the NIM; WHEREAS the Parties announced at the NIM that certain agreements were made to alleviate Forest Glen’s concerns and said terms would be memorialized by formal agreement; The Parties hereby agree as follows: 1. No Objection. Forest Glen agrees that it will not object to the Application at the NIM or any subsequent hearing so long as the Applicants meet the obligations and requirements of this Agreement. 2. Uses and Applicants’ Obligations. Forest Glen will not object to the proposed amendments to the PUD. Forest Glen will not object to the development of the Property with warehousing and flex space uses (Section 6.2, item 31 of the proposed PUD) as presented by the Applicants at the NIM, so long as: a. The Applicants clarify in their Application and the official record that all proposed warehousing and flex space uses and related activity shall occur inside the building(s) to be built on the Property with the doors closed. For sake of clarity, no warehousing and flex space uses should encroach to the exterior of the buildings even for storage purposes. In addition, no cell phone towers will be located on the Property. The only activity allowed south of the vehicle storage building and its wing walls (as referred to below) is to maintain the landscape buffer and/or Preserve. The Applicants will work with Forest Glen and submit any and all necessary paperwork as well as record any and all documents to ensure that these requirements are met now and in the future. This may include, but not necessarily be limited to, an amendment to the Application, certain deed restrictions and/or governing documents for the Property (e.g. Association Declarations and/or Bylaws). Applicants shall diligently enforce lease terms, condominium or association requirements, or other applicable legal restrictions on all users, tenants and owners of the units 14818926.1 9/19/2022 such that no noise, odor, light, fumes, or other disturbances shall substantially disrupt Forest Glen’s enjoyment or use of its property. b. If the Property is used in a manner that violates this provision, and the Applicants fail to act within a reasonable amount of time to address the issue, Forest Glen shall have the right to private enforcement by seeking specific performance against the Applicants for breach of this Agreement. c. The Applicants shall confirm that the warehousing and flex space design elements shall be the same or substantially similar to the development located at 3933 & 3939 Tollhouse Drive, Naples, Florida 34114 in compliance with the current PUD. This includes, but is not limited to, architectural finishings and paint color, to the extent permitted by Collier County Ordinances, or any modifications agreed to by Forest Glen. The design elements shall remain the same now and in the future. For sake of clarity, please see photographs attached as composite Exhibit “1”. The authorized building height is a material term, and Forest Glen would not enter into this Agreement if the Application sought a two-story building or a height above that proposed by the Applicants at prior meetings. The building height or structures attached to the roofline (if any) shall not exceed 28 ft. As stated above, it is agreed that a Cell Phone tower will not be located on any of the buildings at the Property. The Applicants will work with Forest Glen and submit any and all necessary paperwork as well as record any and all documents to ensure that these requirements are met now and in the future. This may include, but not necessarily be limited to, an amendment to the Application, certain deed restrictions and/or governing documents for the Property (e.g. Association Declarations and/or Bylaws). d. The Applicants shall request in their Application and the official record that the landscape buffer on the Alternative Commercial Tract Master Plan between the Property and Forest Glen be designated as Preserve. The Applicants will work with Forest Glen and jointly submit any and all documents required or otherwise requested to the appropriate regulatory authority in an effort to have the buffer designated a Preserve. The Applicants will reasonably comply with any and all requests by Forest Glen in their joint efforts to have the buffer designated as Preserve. . The dimensions of the Preserve will not be substantially altered from the Proposed Alternative Commercial Tract Master Plan presented at the NIM (approximately 55’-65’ in depth from east to west spanning the entire southern property line). Attached to this agreement as Exhibit “2“is the Proposed Alternative Commercial Tract Master Plan presented at the NIM. If the subject area is not approved or designated as Preserve , the PUD will provide that the area shall be designated as a landscape buffer, and the Parties will enter into a separate agreement setting forth that the area will be designated as a landscape buffer in perpetuity with vegetation that obstructs Forest Glen’s view of the Property. The Parties recognize that Forest Glen’s intent is to swap/unlock Preserve adjacent to the clubhouse for future development which is the purpose for attempting to designate the landscape buffer area as a Preserve on the Property. Forest Glen’s desire to remove a 14818926.1 9/19/2022 preserve designation on other property may require the help/cooperation of the Applicants in r the modification of the PUD in the future. e. If the Property is developed with warehousing or flex space uses, the basic designs, dimensional characteristics, and proposed uses of the Property will not be substantially altered from that presented at the NIM or set forth by the Proposed Alternative Commercial Tract Master Plan presented at the NIM. The Proposed Alternative Commercial Tract Master Plan is attached hereto as Exhibit “2”. If the Property is sold or otherwise becomes obsolete the Property may not be torn down or altered from the Master Plan presented without Forest Glen’s approval and proper regulatory approvals. f. The “Vehicle Storage Units” set forth on the Alternative Commercial Tract Master Plan located on the southernmost portion of the Property will have a wall attached as further described in this provision. The wall’s height will be 12 feet high or the height of the back wall of the building (whichever is less). The wall shall be made of concrete and painted a mutually agreed upon color on the south side that will run parallel to Forest Glen’s property line and span east to west a distance equal to the property line as allowed, and that there will be no access to the “Vehicle Storage Units” from the south side of the Property. No doors, windows or other tenant access other than those required by building code will be allowed on the south wall or south vehicle storage building. The south side of the building and wall will be reasonably maintained. g. If the Property is developed with warehousing or flex space uses, the Property will be reasonably secured by measures that include, but are not necessarily limited to, an entrance gate with after hour code access thereby limiting after hour access to business invitees or licensees. 3. Binding on Successors in Interest. This Agreement and obligations arising hereunder shall extend to and be binding upon the Parties and their respective successors and assigns and shall inure to the benefit of the Parties and their respective successors and assigns. 4. Applicable Law. This Agreement will be governed by the laws of the State of Florida. 5. Severability. In the event that any section, paragraph or term of this Agreement shall be determined to be invalid or unenforceable by any competent authority or tribunal for any reason, the remainder of this Agreement shall be unaffected thereby and shall remain in full force and effect, and any such section, paragraph, or term shall be deemed modified to the extent to make it enforceable. 6. Waiver of Breach. The waiver by either party of a breach or violation of any provision of this Agreement shall not operate as, or be construed to be, a waiver of any subsequent breach of the same or other provision hereof. 7. Modifying the Agreement. This Agreement may be modified only by a writing signed by both Parties.                           14818926.1 9/19/2022 Exhibit “1” 14818926.1 9/19/2022 Exhibit “2” From:Rinaldi, Thomas To:KowalDan Cc:FrancisSarina; Nettles, Karen Subject:FW: April 11, 2023 BCC Meeting; Petition PL20200002302- Forest Glen of Naples (PUDA) Date:Thursday, April 6, 2023 10:47:37 AM Attachments:MOU Fully Executed 10.28.22.pdf EXTERNAL EMAIL: This email is from an external source. Confirm this is a trusted sender and use extreme caution when opening attachments or clicking links. Dear Commissioner Kowal, I have the pleasure to represent Forest Glen. During the BCC Meeting scheduled for April 11, 2023, the Board will consider the above referenced Petition that was approved by the Land Planning Commission. Forest Glen wanted to make sure that all Commissioners were aware that it and the Applicants entered into the attached Memorandum of Understanding (the “MOU”) related to the Petition. Material terms of the MOU include, but are not limited to the following: 1. The Applicants agree, and will work with Forest Glen in its efforts, to have the vegetation area located between the developed parcel and Forest Glen’s property be designated as Preserve; 2. The Applicants agree, and the site will be developed in a manner to include buildings of a height no greater than 28’. However, please note that due to the County’s definition of building height, Forest Glen has acquiesced to a building height of no greater than 30’8”. 3. As it relates to uses, the Applicants agree that the southernmost building will be used for vehicle storage with no access points on the exterior wall closest to Forest Glen’s property line. Forest Glen does not intend to object to the passing of the Petition at the upcoming hearing. However, it may make a public comment to ensure that public officials and staff are fully aware of the agreements between the relevant parties that impact this project moving forward. Thank you for your time and attention to this matter. Sincerely, Tom Rinaldi Thomas Rinaldi, Member Litigation 239.659.3866 Direct TRinaldi@bsk.com 4001 Tamiami Trail North, Suite 105, Naples, FL 34103-3556 239.659.3800 Firm bsk.com This email is ONLY for the person(s) named in the message header. Unless otherwise indicated, it contains information that is confidential, privileged or exempt from disclosure under applicable law. If you have received it in error, please notify the sender of the error and delete the message.