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Agenda 07/07/2015 Item #16A 47/7/2015 16.A.4. EXECUTIVE SUMMARY Recommendation to accept an Access Improvement Agreement with Fifth Third Bank to fulfill a condition of approval pursuant to Hearing Examiner Decision No. 2015 -09, concerning a new access point on Thomasson Lane in the Sabal Bay MPUD, Ordinance No. 05-59. OBJECTIVE: To obtain acceptance by the Board of County Commissioners (Board) of an agreement with Fifth Third Bank in which the Bank provides a performance guarantee to make right -of -way improvements at an additional access point on Thomasson Lane if, within 18 months after issuance of the Certificate of Occupancy at the new bank site, such improvements are detennined by the County to be necessary. CONSIDERATIONS: As part of the review and approval of an insubstantial change to the Sabal Bay MPUD, Ordinance No. 05 -59, the Hearing Examiner determined that the County may need to require closure of a portion of the new full access connection on Thomasson Lane, if an operational review by the County determines it to be necessary within 18 months of issuance of the Certificate of Occupancy. Condition of Approval #2 for Hearing Examiner Decision No. 2015 -09 provides: During review of the SDP or subsequent Right -of -Way (ROW) permit approval, the County may require a performance guarantee, such as a bond or letter of credit, be posted by the applicant in order to provide for closure of the left -in or left -out movements. An operational review may be performed by the County within the first 18 months after issuance of the Certificate of Occupancy. If upon review of the results of the operational review, the County detennines it is necessary to close the left -in or left -out movements, the County may call on the perfonnance guarantee in order to pay for the cost of installing the appropriate driveway barriers to preclude left - in/left -out turning movements. The Developer is currently seeking approval of an SDP (SDP- PL20140000858) and therefore is required to post a performance guarantee as described above. The attached agreement provides the terms and conditions for posting and calling on the performance guarantee established in the Condition of Approval and for completion of the requisite right -of -way improvements, if necessary. FISCAL IMPACT: The cost of operational review would be performed by Traffic Operations within the budget for traffic review and analysis (not to exceed $1,400). The performance guarantee is provided so that no public funds will be required to implement any improvements determined to be necessary. LEGAL CONSIDERATIONS: This item is approved as to form and legality, and requires majority vote for Board approval. —SAS GROWTH MANAGEMENT IMPACT: This action will result in no growth management impact. Packet Page -754- 7/7/2015 16.A.4. RECOMMENDATION: That the Board accept and authorizes the Chair to execute the attached Access Improvement Agreement with Fifth Third Bank in which the Bank provides a performance guarantee to make right -of -way improvements at an additional access point on Thomasson Lane if, within 18 months after issuance of the Certificate of Occupancy at the new bank site, such improvements are determined by the County to be necessary. Prepared By: Stephen Baluch, Site Plan Reviewer, Development Review Division Attachments: 1) Site Location Map, 2) Access Improvement Agreement, 3) Hearing Examiner Decision HEX No. 2015 -09 Packet Page -755- 7/7/2015 16.A.4. COLLIER COUNTY Board of County Commissioners Item Number: 16.16.A.16.A.4. Item Summary: Recommendation to accept an Access Improvement Agreement with Fifth Third Bank to fulfill a condition of approval pursuant to Hearing Examiner Decision No. 2015 -09, concerning a new access point on Thomasson Lane in the Sabal Bay MPUD, Ordinance No. 05 -59. Meeting Date: 7/7/2015 Prepared By Name: HouldsworthJohn Title: Site Plans Reviewer, Senior, Growth Management Department 6/3/2015 12:00:19 PM Approved By Name: McLeanMatthew Title: Project Manager, Principal, Growth Management Department Date: 6/8/2015 5:02:48 PM Name: PuigJudy Title: Operations Analyst, Growth Management Department Date: 6/11/2015 11:17:50 AM Name: PuigJudy Title: Operations Analyst, Growth Management Department Date: 6/11/2015 11:34:00 AM Name: CasalanguidaNick Title: Deputy County Manager, County Managers Office Date: 6/20/2015 7:51:34 AM Name: StoneScott Title: Assistant County Attorney, CAO Land Use /Transportation Date: 6/22/2015 9:31:32 AM Name: IsacksonMark Title: Division Director - Corp Fin & Mgmt Svc, Office of Management & Budget Packet Page -756- Date: 6/22/2015 10:17:36 AM Name: KlatzkowJeff Title: County Attorney, Date: 6/24/2015 4:07:41 PM 7/7/2015 16.A.4. Name: CasalanguidaNick Title: Deputy County Manager, County Managers Office Date: 6/25/2015 12:57:06 PM Packet Page -757- ` 1 7/7/2015 16.A.4. SITE MAP Packet Page -758- 7/7/2015 16.A.4. Access Improvement Agreement This Access Improvement Agreement (the "Agreement") is made and entered into this day of . 2015 by and between Fifth Third Bank, an Ohio banking corporation, whose address is 38 Fountain Square Place, Cincinnati, Of 145263 (the "Developer") and Collier County, Florida, a political subdivision of the State of Florida (the "County "). RECITALS: WHEREAS, on March 19, 2015, the Collier County Hearing Examiner approved Hearing Examiner Decision No. 2015 -09, which included an insubstantial change to the Sabal Bay Q MPUD, Ordinance No. 05-x, as amended, to add an additional PUD access point on Tho►nasson / Lane for Developer's property (the "Access Point "); and WHEREAS, Condition of Approval #2 for Hearing Examiner Decision No. 2015 -09, provides: During review of the SDP or subsequent Right -of -Way (ROW) permit approval, the County may require a performance guarantee, such as a bond or letter of credit, be posted by the applicant in order to provide for closure of the left -in or left -out movements. An operational review may be performed by the County within the first 18 months after issuance of the Certificate of Occupancy. if upon review of the results of the operational review, the County determines it is necessary to close the left -in or left -out movements, the county may call on the performance guarantee in order to pay for the cost of installing the appropriate driveway barriers to preclude left- in/left -out turning movements. WHEREAS, Developer is currently seeking approval of a Site Development Plan, Application No. SDP- PL20140000858, and therefore is required to post a performance guarantee as described above; WHEREAS, the improvements needed to close the Access Point's left -in and left -out movements (the "Closure Improvements ") are depicted on Exhibit "A," and the estimated cost of the Closure Improvements is shown on the Construction Cost Estimate, attached hereto as Exhibit "A." NOW, THEREFORE, in consideration of the foregoing premises and mutual covenants hereinafter set forth, Developer and the County do hereby covenant and agree as follows: 1. Developer herewith tenders its performance guarantee (the "Letter of Credit ") attached hereto as Exhibit "C," in the amount of S �� 073. Jr' , which amount represents 110% of the total estimated cost to complete the Closure Improvements. 115 -OPS- 00226/1173634/11 Packet Page -759- M 7/7/2015 16.A.4. 2. In the event of default by the Developer, or failure of the Developer to complete the Closure Improvements within the time required by this Agreement, the County may call upon the Letter of Credit to insure satisfactory completion of the Closure Improvements. 3. After completion of the operational review required by Condition of Approval #2 for Hearing Examiner Decision No. 2015 -09, the County shall either a) notify Developer in writing that the left -in, left -out movements for the Access Point must be closed; or b) release the Letter of Credit to Developer because the left -in, left -out movements for the Access Point do not require closure. 4. Developer shall, within thirty (30) days of delivery of the notice specified above, provide written notice to the County if it intends to construct the Closure Improvements, in which case Developer shall have six (6) months to obtain a Right -of -Way Permit and complete the Closure Improvements to the satisfaction of the County. 5. If the County does not provide written notice to the Developer within twenty (20) months after issuance of the Certificate of Occupancy, the Developer may request, in writing, the release of the Letter of Credit. Upon receipt of such written request, the County shall have sixty (60) days to either a) initiate the release of the Letter of Credit to Developer; or b) notify Developer in writing that the left -in, left -out movements for the Access Point must be closed. 6. In the event the Developer shall fail or neglect to fulfill its obligations under this Agreement, upon certification of such failure, the County may call upon the Letter of' Credit to secure satisfactory completion of the Closure Improvements. The County shall have the right to construct, or cause to be constructed, pursuant to the public advertisement and receipt and acceptance of bids, the Closure Improvements required herein. The Developer, as principal under the Letter of Credit, shall be liable to pay and to indemnify the County, upon completion of such construction, the final total cost to the County thereof, including, but not limited to, engineering, legal, and contingent costs, together with any damages, either direct or consequential, which the County may sustain on account of the failure of the 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 the Developer, its successors and assigns. IN WITNESS WHEREOF, the County and the Developer have caused this Agreement to be executed by their duly authorized representatives the day and date first written above. [15- OPS- 00226/1173634/1] k Packet Page -760- ` -- 7/7/2015 16.A.4. ATTEST: Dwight E. Brock, Clerk WITNESSES: Pri n t e Zd a X4 v , —4,7. ,, o, e � Printed Narn`-C BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA Tim Nance, Chairman FIFTH 'THIRD BANK C Bv: Printed Name: Title: 111Cf- STATE OF FLORIDA COUNTY OF CFit Sa*-aX07ix Signed and ackno%vledged on 1his f o ay 20 15. before me, the —11y4y undersigned notary public. by A41,ke C /I aHe-r ---V,P ' of ]Fifth Third Bank. an Ohio banking corporation. on behalf ofthe corporation. Ile (phis personal],.• known to me or produced as identification. Notary Public Printed Name: M), Commission Fxpires: - - - - N'Wa I Y - - BRIAN CRAMER Slate of Fir nob tA ExPacs May 21, 2015 # -E 20 -OS18 a,7- m2d Tmough Uvlai NOIRly Approved as to Form and Legality Scott A. Stone Assistant County Attorney [15-OPS-00226/1173634/11 3 Packet Page -761- Aj % 2 ZBLS gcf 100 7/7/2015 16.A.4. Exhibit A oll ol 0 $ €; suo -3, 'X" rs LM �51 Lo Z4 1 g 17, �Jl C:t) C 7 LA > 70 rn > Ln Al �Jl C:t) C C Al '49f;0 9 FIFTH THIRD SAW NO. 348119 SITE PLAN 0 Packet Page -762- 7/7/2015 16.A.4. Exhibit B Packet Page -763- } FIFTH THIRD BANK Project: FI M Third Bank No. 146119 Sheet: 1 01 1 Localtlon: 4570 Thomaston Lane, Naplaa Ft. 54112 Project No. 15 -67.00 CONSTRUCTION COST ESTIMATE (Thomasson Ln. Date: 4212015 Basis for Estimate: Estimator Ch,,kw Pro-design Conmpt Schematic Des. Day, FWAL X Constr, Doc, VC NS client: Fifth Third Bank PMOMM: COMMERCIAL Discipline: Civil Item j Description Quantity Units Unit Cost ESTIMATED COST i 1 Mobilization 1 LS 1,500,003 1,500.00 2 Project Staking & Surveying 1 LS 500.00$ 500.00 3 Testing • Compaction 1 LS 250.005 250.00 4 6" Concrete Island 13 SY 84.00$ 1,092A0 5 Asphalt Removal 13 SY 12.00 5 159.96 6 Yellow Thermoplastic Striping 6" 321 LF 1.28 g 40.96 7 Pavement Markings 2 EA 22.70E 45.40 8 "Right Turn Only" Sign 1 EA 330.00E 330.00 9 "No Left Tum" Sign 1 EA 330,00 t 330.00 10 Aermitting 1 LS 4,000.00 4,000.00 Total g 8,248.32 IN F_ "1'Y (`. P'I •y f'7 3" t_ti(:, I.ti i; l,.i<I ":.t.. , `ti�ttttf'tttrt; F2 No 640 5 �y �TS t I till [l v!V Packet Page -763- } EISHISIT C S � FIFTH THIRD BANK LETTER OF CREDIT NO. 5505680 ISSUING BANK: FIFTH THIRD BANK BENEFICIARY: THE BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA C/O GROWTH MANAGEMENT DEPARTMENT 2800 NORTH HORSESHOE DRIVE NAPLES, FL 34104 APPLICANT: FIFTH THIRD BANK C/O MIKE CHARLES 50 CENTRAL AVENUE MD BSFPBA SARASOTA, FL 34236 LETTER OF CREDIT NO: ISSUE DATE: EXPIRATION DATE: EXPIRATION PLACE: AMOUNT: 9,073.15 USD 7/7/2015 16.A.4. PAGE S505680 MAY 26, 2015 MAY 26, 2017 FIFTH THIRD BANK, GLOBAL TRADE SALES, 2333 PONCE DE LEON BOULEVARD NO. 303, CORAL GABLES, FL 33134 NINE THOUSAND SEVENTY THREE 15/100 ISSUER HEREBY ISSUES IN FAVOR OF BENEFICIARY THIS IRREVOCABLE STANDBY LETTER OF CREDIT ('STANDBY') IN THE MAXIMUM AGGREGATE AMOUNT OF $9,073.15 WHICH IS AVAILABLE BY PRESENTATION OF THE FOLLOWING DOCUMENT: BENEFICIARY'S DRAFT(S) AT SIGHT DRAWN ON THE ISSUER AND PRESENTED AT FIFTH THIRD BANK, GLOBAL TRADE SALES, 2333 PONCE DE LEON BOULEVARD NO. 303, CORAL GABLES, FL 33134, PHONE NUMBER 513- 358 -5229, FAX NUMBER 513- 358 -5950, ATTN: EMY RUIZ, ACCOMPANIED BY BENEFICIARY'S STATEMENT PURPORTEDLY SIGNED BY THE COUNTY MANAGER, CERTIFYING THAT: ''FIFTH THIRD BANK HAS FAILED TO CONSTRUCT THE CLOSURE IMPROVEMENTS TO THE COUNTY'S SATISFACTION, AS DESCRIBED IN THE ACCESS IMPROVEMENT AGREEMENT BETWEEN APPLICANT AND COLLIER COUNTY, EXECUTED BY FIFTH THIRD BANK ON MAY 11, 2015.'' DRAFTS) DRAWN UNDER THIS LETTER OF CREDIT SHALL BE MARKED: " DRAWN UNDER FIFTH THIRD BANK, CREDIT NO. 5505680, DATED Packet Page -764- ':,, 7/7/2015 16.A.4. FIFTH THIRD BANK LETTER OF CREDIT NO. S505680 PAGE MAY 26, 2015 '' . THE ORIGINAL LETTER OF CREDIT AND ALL AMENDMENTS, IF ANY, MUST BE PRESENTED FOR PROPER ENDORSEMENT. THIS LETTER OF CREDIT IS ISSUED, PRESENTABLE AND PAYABLE AT OUR OFFICE AT FIFTH THIRD BANK, GLOBAL TRADE SALES, 2333 PONCE DE LEON BOULEVARD NO. 303, CORAL GABLES, FL 33134, PHONE NUMBER 513 -358 -5229, FAX NUMBER 513 - 358 -5950, ATTN: EMY RUIZ. PRESENTATION OF A DEMAND UNDER THIS LETTER OF CREDIT MAY BE MADE ON OR PRIOR TO THE THEN CURRENT EXPIRATION DATE HEREOF BY HAND DELIVERY, COURIER SERVICE, REGISTERED OR CERTIFIED MAIL, OVERNIGHT MAIL, OR FACSIMILE. PRESENTATION OF A DEMAND UNDER THIS LETTER OF CREDIT BY FACSIMILE TRANSMISSION SHALL BE BY TRANSMISSION OF THE ABOVE REQUIRED DEMAND ON US TO OUR FACSIMILE NUMBER 513- 358 -5950 ATTENTION: TRADE SERVICES WITH TELEPHONIC CONFIRMATION OF OUR RECEIPT OF SUCH FACSIMILE TRANSMISSION AT OUR TELEPHONE NUMBER 513 - 358 -5229 (OR AT SUCH OTHER FACSIMILE AND / OR TELEPHONE NUMBERS AS WE MAY SEND NOTICE TO YOU IN WRITING BY U.S. MAIL OR COURIER SERVICE, AS BEING THE APPLICABLE SUCH NUMBERS) ON OR BEFORE THE THEN CURRENT EXPIRATION DATE. ANY SUCH FACSIMILE PRESENTATION SHALL BE CONSIDERED AN ORIGINAL DOCUMENT AND ANY ORIGINAL DOCUMENTS DELIVERED TO THE BANK SHALL BE RETURNED TO THE SENDER AND WILL NOT BE EXAMINED. FIFTH THIRD BANK SHALL BE UNDER NO OBLIGATION TO ASCERTAIN THE IDENTITY OR AUTHORITY OF ANY PERSON MAKING SUCH FACSIMILE PRESENTATION. THIS LETTER OF CREDIT SHALL BE VALID UNTIL MAY 26, 2017, AND SHALL THEREAFTER BE AUTOMATICALLY EXTENDED FOR SUCCESSIVE ONE -YEAR PERIODS ON THE ANNIVERSARY OF ITS ISSUE UNLESS AT LEAST SIXTY (60) DAYS PRIOR TO ANY SUCH ANNIVERSARY DATE, THE ISSUER NOTIFIES THE BENEFICIARY IN WRITING (AT GROWTH MANAGEMENT DEPARTMENT, 2800 N. HORSESHOE DR., NAPLES FL 34104) BY REGISTERED MAIL THAT THE ISSUER ELECTS NOT TO SO EXTEND THIS CREDIT. THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF THE ISSUER'S UNDERTAKING, AND SUCH UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED, OR AMPLIFIED BY REFERENCE TO ANY DOCUMENTS, INSTRUMENT, OR AGREEMENT REFERENCED TO HEREIN OR IN WHICH THIS LETTER OF CREDIT RELATES, AND ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY DOCUMENT, INSTRUMENT OR AGREEMENT. ISSUER HEREBY ENGAGES WITH BENEFICIARY THAT DRAFT(S) DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS CREDIT WILL BE DULY HONORED BY ISSUER IF PRESENTED WITHIN THE VALIDITY OF THIS CREDIT. THIS CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR Packet Page -765- 7/7/2015 16.A.4. FIFTH THIRD BALK LETTER OF CREDIT NO. S505680 PAGE 3 DOCUMENTARY CREDITS (2007 REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO. 600. AEFINA FURSENKO TRADE SERVICES PROFESSIONAL Packet Page -766- 7/7/2015 16.A.4. HEX NO. 2015 — 09 HEARING EXAMINER DECISION PETITION NO. PDI- PL20140002103 — CDC Land Investments, Inc., Collier Land Development, Inc., and Fifth Third Bank request an insubstantial change to the Sabal Bay Mixed Use Planned Unit Development ( "MPUD "), Ordinance No. 05 -59, as amended, to increase the maximum total size of office space in the Commercial/Office Tracts C /01 and C /02 from 40,000 to 60,000 square feet, and decrease the maximum total size of retail or other commercial uses in Tracts C /01 and C /02 from 142,000 to 122,000 square feet; and to amend Exhibit A, the MPUD Master Plan, by adding an additional access point for Tract C /01. The subject property is located south of Thomasson Drive, south and west of U.S. 41, and north and west of Wentworth PUD, in Sections 23, 24, 25, 26 and 36, Township 50 South, Range 25 East, and Section 19, Township 50 South, Range 26 East, Collier County, Florida, consisting of 2,416 f acres. DATE OF HEARING: March 12, 2015. STAFF RECOMMENDATION: Approval. FINDINGS: Based on the applicant's written petition, testimony at the hearing of the applicant, and the recommendation of staff, the Hearing Examiner finds that the criteria set forth in Sections 10.02.13 E.1 and 10.02.13 E.2 of the Land Development Code has been met and the petition is approved. ANALYSIS: At the Neighborhood Informational Meeting (NIM) two members of the public were in attendance. After the applicant's presentation at the NIM, there were no questions from the public. No members of the public were in attendance at this hearing and no letters of objection have been received. DECISION: The Hearing Examiner hereby approves Petition Number PDI- PL20140002103, filed by R. Bruce Anderson, Esq. of Roetzel & Andress, and Burt L. Saunders, Esq. of Gray Robinson, representing CDC Land Investments, Inc. and Collier Land Development, Inc. and Fifth Third Bank, with respect to the property as described in the Sabal Bay MPUD, Ordinance No. 05 -59, as amended, for the following insubstantial changes: • to increase the maximum total size of office space in the Commercial/Office Tracts C /01 and C /02 from 40,000 to 60,000 square feet; • to decrease the maximum total size of retail or other commercial uses in Tracts C /01 and C /02 from 142,000 to 122,000 square feet; and • to amend Exhibit A, the MPUD Master Plan, by adding an additional access point for Tract C/O 1. [I 4-CPS-0 1394/1150921 /1]36 Packet Page -767- 7/7/2015 16.A.4. Said changes are fully described in the Sabal Bay MPUD amendment and Master Plan attached as Exhibit "A ", and are subject to the condition(s) set forth below. ATTACHMENTS: Exhibit A — MPUD Amendment and Master Plan LEGAL DESCRIPTION: See Ordinance No. 05 -59, as amended, the Sabal Bay MPUD. CONDITIONS: The new access point on Thomasson Lane is not restricted from pursuing a full access as a condition of approval. However, operational conditions assessed at the time of Site Development Plan (SDP) submittal may require a turn lane, and/or preclusion of the left - in/left -out turning movements. In accordance with LDC section 6.06.01.0.1 "nothing in any development order shall vest a right of access in excess of a right- in/right -out condition at any access point." 2. During review of the SDP or subsequent Right -Of -Way (ROW) permit approval, the County may require a performance guarantee, such as a bond or letter of credit, be posted by the applicant in order to provide for closure of the left -in or left -out movements. An operational review may be performed by the County within the first 18 months after issuance of the Certificate of Occupancy. If upon review of the results of the operational review, the County determines it is necessary to close the left -in or left -out movements, the county may call on the performance guarantee in order to pay for the cost of installing the appropriate driveway barriers to preclude left - in/left -out turning movements. 3. The new driveway location must be located such that it provides approximately 125 feet (no more than 10% measured from the centerline of the driveway), in each direction, to the nearest intersection. APPEALS: This decision becomes effective on the date it is rendered. Pursuant to Ordinance 2013 -25, as amended, a Hearing Examiner Decision may be appealed to the Board of County Commissioners, Collier County. Appeals must be filed within 30 days of the date the Hearing Examiner Decision is rendered. RECORD OF PROCEEDINGS AND EXHIBITS: SEE CLERK OF COURT, MINUTES AND RECORDS DEPARTMENT. DECISIONS OF THE HEARING EXAMINER FOR VARIANCES, CONDITIONAL USES, AND BOAT DOCK EXTENSIONS SHALL BE NOTED ON THE ZONING MAP FOR INFORMATIONAL PURPOSES. Z lot } Date X14- CPS - 01394/115092111136 i� It Mark Strain, Hearing Examiner Appr ved astto fonn and le^ality: Scott A. Stone Assistant County Attorney I -f1 Packet Page -768- Section V, entitled "Commercial /Office," of the PUD Document attached to Ordinance 05 -59, as amended, the Sabal Bay Mixed Use PUD, is hereby amended as follows: 5.2 MAXIMUM COMMERCIAL /OFFICE SQUARE FEET The 50 ± acre Commercial /Office Areas (Tracts C /01, C /02 and C /03), shall be developed with an amount of commercial /office square footage that will not exceed individual DRI thresholds. Total retail or other uses on the C /Ol and C/O2 shall not exceed 1-42,800 122,000 square feet of retail and 49,989 60,000 square feet of office space. Regardless of the ultimate mix of uses, in no case shall this MPUD exceed DRI thresholds established for a mixed -use project (100 percent for a specific use and 160 percent of any combination of three or more uses) as those regulations exist on. the date this MPUD is approved. This shall be monitored through the PUD monitoring process on an annual basis and through the SDP and /or subdivision plat review process. Exhibit A, the MPUD Master Plan, of the PUD Document attached to Ordinance 05 -59, as amended, the Saba] Bay Mixed Use PUD, is hereby repealed in its entirety and replaced with Exhibit A, attached hereto and incorporated herein. 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