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Agenda 07/07/2015 Item #16A117/7/2015 16.A.11. EXECUTIVE SUMMARY Recommendation to accept an alternate security for that subdivision known as Hatcher's Preserve, (Application Number AR- 11440) enter into a Construction and Maintenance Agreement with the new owner and terminate the existing Construction, Maintenance and Escrow Agreement. OBJECTIVE: To enter into a Construction and Maintenance Agreement with the owner of the subdivision property, to replace the existing Construction, Maintenance and Escrow Agreement with the previous owner. CONSIDERATIONS: On May 13, 2008, the Board of County Commissioners (Board) approved the final plat of Hatcher's Preserve for recording, and on April 21, 2012, entered into a Construction, Maintenance and Escrow Agreement with the original developer and lender. The improvements are substantially complete except for a portion of the required landscaping and a portion of sidewalks in front of vacant properties. On September 5, 2012, Growth Management Department granted preliminary acceptance of the improvements. There is a new developer, Hatchers Preserve, LLC who would like to replace the existing performance guarantee security with a cash bond. The developer has continued to request and receive extensions to the subdivision approval in order to remain in compliance with the requirements of the Land Development Code. The original developer and lender have agreed to the proposed termination of the Construction, Maintenance and Escrow Agreement. FISCAL IMPACT: There is no fiscal impact associated with this Executive Summary. The Security amount, equal to 10% of the project cost, and 100% of the remaining improvements is , $80,000.00. 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. - SAS RECOMMENDATION: That the Board of County Commissioners endorses staff's recommendation to enter into a Construction and Maintenance Agreement with the developer of Hatcher's Preserve (AR- 11440) with the following stipulations: Approve the amount of $80,000.00 as performance security for the required improvements; or such lesser amount based on work completed, and as is approved by the Growth Management Department. 2. Approve the attached Construction and Maintenance Agreement and authorize the Chairman to execute the Agreement. Packet Page -849- 7/7/2015 16.A.11. 3. Authorize the termination of the existing Construction, Maintenance and Escrow Agreement. Prepared by: John Houldsworth, Senior Site Plans Reviewer, Development Review, Growth Management Department Attachments: 1) Location Map 2) Construction and Maintenance Agreement w /Cash Bond Receipt 3) FCB letter dated 5/15/2015 Packet Page -850- 7/7/2015 16.A.11. COLLIER COUNTY Board of County Commissioners Item Number: 16.16.A.16.A.11. Item Summary: Recommendation to accept an alternate security for that subdivision known as Hatcher's Preserve, (Application Number AR- 11440) enter into a Construction and Maintenance Agreement with the new owner and terminate the existing Construction, Maintenance and Escrow Agreement. Meeting Date: 7/7/2015 Prepared By Name: HouldsworthJohn Title: Site Plans Reviewer, Senior, Growth Management Department 6/8/2015 12:23:22 PM Approved By Name: McLeanMatthew Title: Project Manager, Principal, Growth Management Department Date: 6/8/2015 5:15:09 PM Name: PuigJudy Title: Operations Analyst, Growth Management Department Date: 6/11/2015 11:28:17 AM Name: PuigJudy Title: Operations Analyst, Growth Management Department Date: 6/11/2015 11:28:51 AM Name: CasalanguidaNick Title: Deputy County Manager, County Managers Office Date: 6/20/2015 7:46:56 AM Name: StoneScott Title: Assistant County Attorney, CAO Land Use/Transportation Date: 6/22/2015 9:27:32 AM Name: IsacksonMark Title: Division Director - Corp Fin & Mgmt Svc, Office of Management & Budget Packet Page -851- Date: 6/22/2015 10:26:16 AM Name: KlatzkowJeff Title: County Attorney, Date: 6/24/2015 2:01:20 PM 7/7/2015 16.A.11. Name: Casa] anguidaNi ck Title: Deputy County Manager, County Managers Office Date: 6/25/2015 1:36:35 PM Packet Page -852- 7/7/2015 16.A.11. „YES m." I/ Z -- 0 Q w H Q zl Q O J N K U D rYl W D v1 N J ry H Q A cc G a � ez -a•s 0 i U R N N W Y J Q Q Packet Page -853- 0 Q w H Q zl Q O J 7/7/2015 16.A.11. CONSTRUCTION AND MAINTENANCE AGREEMENT FOR SUBDIVISION IMPROVEMENTS T HIS CONS T RU'C T ION AND MAINTENANCE AGREEMENT FOR SUBDIVISION 1 IMPROVEMENTS entered into this day of 2ii* 2015, between Hatchers Preserve, LLC hereinafter referred to as "Developer," and the Board of County Commissioners of Collier County, Florida, hereinafter referred to as the "Board ". RECITALS: A. On May 13, 2008, Collier County approved a certain subdivision known as Hatchers Preserve. B. In accordance with subdivision regulations under Chapter 4 and 10 of the Collier County Land Development Code, the previous developer, Empowerment Alliance of Southwest Florida, CDC, provided a Construction, Maintenance and Escrow Agreement subdivision performance security in the amount of $80,000.00 as a guarantee for the construction of the improvements required by said subdivision regulations (attached hereto as Exhibit "A "). C. Developer is now owner of the Hatchers Preserve plat property, and wishes to replace the existing Construction, Maintenance and Escrow Agreement with an alternate subdivision performance security, as provided herein. 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: 1. Developer will cause to be constructed: required landscaping and sidewalks prior to November 15, 2016. 2. Developer herewith tenders its subdivision performance security (attached hereto as Exhibit "B" and by reference made a part hereof) in the amount of $80,000.00 which amount represents 10% of the total contract cost to complete construction plus 100% of the estimated cost of to complete the required improvements at the date of this Agreement. 3. In the event of default by the Developer or failure of the Developer to complete such improvements within the time required by the Land Development Code, Collier County may call upon the subdivision performance security to insure satisfactory completion of the required improvements. 4. The required improvements shall not be considered complete until a statement of substantial completion by Developer's engineer along with the final project records have been furnished to be reviewed and approved by the County Manager or his designee for compliance with the Collier County Land Development Code. Page 1 of 3 Packet Page -854- �� 7/7/2015 16.A.11. 5. The County Manager or his designee shall, within sixty (60) days of receipt of the statement of substantial completion, either: a) notify the Developer in writing of his preliminary approval of the improvements; or b) notify the Developer in writing of his refusal to approve improvements, therewith specifying those conditions which the Developer must fulfill in order to obtain the County Manager's approval of the improvements. However, in no event shall the County Manager or his designee refuse preliminary approval of the improvements if they are in fact constructed and submitted for approval in accordance with the requirements of this Agreement. 6. The Developer shall maintain all required improvements for a minimum period of one year after preliminary approval by the County Manager or his designee. After the one year maintenance period by the Developer has terminated, the Developer shall petition the County Manager or his designee to inspect the required improvements. The County Manager or his designee shall inspect the improvements and, if found to be still in compliance with the Collier County Land Development Code as reflected by final approval by the Board, the Board shall release the remaining 10% of the subdivision performance security. The Developer's responsibility for maintenance of the required improvements shall continue unless or until the Board accepts maintenance responsibility for and by the County. 7. Six (6) months after the execution of this Agreement and once within every six (6) months thereafter the Developer may request the County Manager or his designee to reduce the dollar amount of the subdivision performance security on the basis of work complete. Each request for a reduction in the dollar amount of the subdivision performance security shall be accompanied by a statement of substantial completion by the Developer's engineer together with the project records necessary for review by the County Manager or his designee. The County Manager or his designee may grant the request for a reduction in the amount of the subdivision performance security for the improvements completed as of the date of the request. S. In the event the Developer shall fail or neglect to fulfill its obligations under this Agreement, upon certification of such failure, the County Manager or his designee may call upon the subdivision performance security to secure satisfactory completion, repair and maintenance of the required improvements. The Board shall have the right to construct and maintain, or cause to be constructed or maintained, pursuant to public advertisement and receipt and acceptance of bids, the improvements required herein. The Developer, as principal under the subdivision 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 contingent costs, together with any damages, either direct or consequential, which the Board mav_ sustain on account of the failure of the Developer to fulfill all of the provisions of this Agreement. 9. All of the terms, covenants and conditions herein contained are and shall be binding upon the Developer and the respective successors and assigns of the Developer. Pac,e 2 of 3 Packet Page -855 -' �, J 7/7/2015 16.A.11. IN WITNESS WHEREOF, the Board and the Developer have caused this Agreement to be executed by their duly authorized representatives this. day of &A L- 2015. SIGNED IN THE PRESENCE OF: PrintN 1 Print Name: t4 h ld &r1ga 17t—) ATTEST: DWIGHT E. BROCK, Clerk LIZA , Deputy Clerk Approved as to form and legality: Scott A. Stone Assistant County Attorney Approved Form — JAK — February 2006 (Name of Entity) By: l \ Steven rk President ofPatchers reserve. LLC. BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA TIM NANCE, Chairman Page 3 of 3 Packet Page -856 -r 7/7/2015 16.A.11. Exhibit A CONSTRUCTION, MAINTENANCE AND ESCROW AGREEMENT FOR SUBDIVISION IMPROVEMENTS THIS AGREEMENT entered into this 21st day of April, 2012, by Empowerment Alliance of Southwest Florida CDC (hereinafter ereinaftereeThe THE and Florida O Community hBankS NOAN(hereinafter OOLLIER COUNTY, FLORIDA, (h "Lender"). RECITALS: A. Developer has, simultaneously with the delivery of this Agreement, applied for the approval by the Board of a certain plat of a subdivision to be known as Hatchets Preserve. $. The subdivision will include certain improvements which are required by Collier County ordinances, as set forth in a site construction cost estimate ( "Estimate ") prepared by Q. Grady Minor & Associates, a copy of which is attached hereto and incorporated herein as Exhibit 1. For purposes of this Agreement, the "Required Improvements" are limited to those described in the Estimate. C. Sections 10.02.05 C. and 10.02.04 of the Collier County Subdivision Code Division of the Unified Land Development Code requires the Developer to provide appropriate guarantees for the construction and maintenance of the Required Improvements. D. Lender has entered into a construction .loan agreement with Developer dated 12/21 /09. Account No.. 14725004-1. (the "Construction Loan") to fund the cost of the Requited improvements. E. Developer and thq' Board have acknowledged that the amount Developer is required to guarantee pursuant to this Agreement is $80,000, and this amount represents 110% of the Developer's engineer's estimate of the construction costs for the Required Improvements. NOW, THEREFORE, in consideration of the foregoing premises and mutual covenants hereinafter set forth, Developer, the Board and the Lender do hereby covenant and agree as follows: 1. Developer will cause the water, sewer, roads, drainage and like facilities, the Required Improvements, to be constructed pursuant to specifications that have been approved by the County Manager or his designee within 3- 6 months from the date of approval of said subdivision plat. 2. Developer hereby authorizes Lender to hold $80,000 from the Construction Loan in escrow pursuant to the terms of this Agreement. 3. Lender agrees to hold in escrow $80,000 from the Construction Loan to be disbursed only pursuant to this Agreement. Lender acknowledges that this Agreement shall not constitute a draw against the Construction Loan fund, but that only such funds as are actually disbursed, whether pursuant to this Agreement or a provision of the Construction Loan, shall accrue interest. royal of the County 4. The escrowed funds shall be released to the Developer only upon written app Manager or his designee who shall approve the release of the funds on deposit not more than once a month to the Developer, in amounts due for work done to date based on the percentage completion of the work multiplied by the respective work costs less ten percent (10 %); and further, that upon completion of the work, the County Manager or his designee shall approve the release of any dbb op wich shall remain in escrow as remainder of escrowed funds except to the extent of $ g h • a Developer guaranty of maintenance of the Required Improvements for a minimum period of one (1) year pursuant to Paragraph 10 of the Agreement. However, in the event the Developer shall fail to comply with the requirements of this Agreement, then the Lender agrees to pay to the County immediately upon demand the balance of the funds held in Packet Page -8S7- 7/7/2015 16.A.11. escrow by the Lender, as of the date of the demand, provided that upon payment of such balance to the County, the County will have executed and delivered to the Lender in exchange for such funds a statement to be signed by the County Manager or his designee to the effect that: (a) Developer for more than sixty (60) days after written notification of such failure has failed to comply with the requirements of this agreement; (b) The County, or its authorized agent, will complete the work called for under the terms of the above - mentioned contract or will complete such portion of such work as the County, in its sole discretion shall deem necessary in the public interest to the extent of the funds then held in escrow; (c) The escrow funds drawn down by the County shall be used for construction of the Required Improvements, engineering, legal and contingent costs and expenses, and to offset any damages, either direct or consequential, which the County may sustain on account of the failure of the Developer to cam, out and execute the above- mentioned development work; and (d) The county will promptly repay to the Lender any portion of the funds drawn down and not expended in completion of the said development work. S. Written notice to the lender by the County specifying what amounts are to be paid to the Developer shall constitute authorization by the County to the Lender for release of only those specified funds to the Developer. Payment by the Lender to the Developer of the amounts specified in a letter of authorization by the County to the Lender shall constitute a release by the County and Developer of the Lender for the specified funds disbursed in accordance with the letter of authorization from the County. 6. The Required improvements shall not be considered for preliminary approval until a statement of substantial completion by Developer's engineer along with the final project records have been furnished to be reviewed and approved by the County manager or his designee for compliance with the Collier County Subdivision Regulations. 7. The County Manager or his designee shall, within sixty (60) days of receipt of the statement of substantial completion, either a) notify the Developer in writing of his preliminary approval of the improvements; or b) notify the Developer in writing of his refusal to approve the improvements, therewith specifying those conditions which the Developer must fulfill in order to obtain the Director's approval of the Required Improvements. However, in no event shall the County Manager or his designee refuse preliminary approval of the improvements if they are in fact constructed and submitted for approval in- accordance with the requirements of this Agreement. 8. Should the funds held in escrow be insufficient to complete the Required Improvements, the Board, after duly considering the public interest, may at its option complete the Required Improvements and resort to any and all legal remedies against the Developer. 9. Nothing in this Agreement shall make the Lender liable for any funds other than those placed in deposit by the Developer in accordance with the foregoing provision; provided, that the Lender does not release any monies to the Developer or to any other person except as stated in this Escrow Agreement to include closing the account, or disbursing any funds from the account without first requesting and receiving written approval from the County. 10. The Developer shall maintain all the Required Improvements for one year after preliminary approval by the County Manager or his designee. After the one year maintenance period by the Developer and upon submission of a written request for inspection, the County Manager or his designer shall inspect the Required Improvements and, if found to be still in compliance with the code as reflected by final approval by the Board, the Lender's responsibility to the Board under this Agreement is terminated. The Developer's responsibility for maintenance of the Required improvements shall continue unless or until the Board accepts maintenance responsibility for and by the County. Packet Page -858- 7/7/2015 16.A.11. 1. All of the terms, covenants and conditions herein contained are and shall be binding upon the respective successors and assigns of the Developer and the Lender. IN WITNESS WHEREOF, the Board and the Developer have caused this Agreement to be executed by their duly authorized representatives this 1 t s� day of -------- ----------- Empowerment All* SIGNED IN THE P RESENCE OF: By w -Fn-in—ted Name: D e'r..14 t, Chairman Printed Name: ED IN THE PRESENCE 0 d Name: DoNyo-d-) y C cc, fc 5-w—ightE. Brock, Clark By: �� �; Assistant unty A orney C. # 11 Brent Dykstra Assistant Vice President guard of County Commissioners of Collier County, Florida By: C'J' Chairman Packet Page -859- Receipt Number: Transaction Number: Date Paid: Amount Due: Payment Details: Amount Paid: Change / Overage: Contact: FEE DETAILS: Fee Description Refundable Bonds Cashier Name: Batch Number: Entered By: 7/7/2015 16.A.11. Exhibit B 1 Collier County Growth Management Division 2800 Horseshoe Drive N. Naples, FL 34104 RECEIPT OF PAYMENT 2015240901 2015 - 021369 04/23/2015 $80,000.00 Payment Method Check $80,000.00 $0.00 Hatchers Preserve, LLC P 0 Box 343529 Florida City, FL 33034 Reference Number PL20110002078 AmandaBayoumi 4411 hughes_j Amount Paid Check Number $80,000.00 1041 Original Amount GL Account Fee Paid $80,000.00 $80,000.00 670- 000000-220113 Packet Page -860- 7/7/201516.A.11. �OP.IDP, coMMUCB l.ioo N 15"S1 Immokalee H, 3,1792 05/15/2015 Empowerment Alliance 750 S 5`h St Immokalee Fl. 34142 To whom ever it may concern: I want to confirm that loan number 14725004 -1 is officially satisfied and was matured as of 04/21/2015. Sincerel '.uis Carta Vice President Branch Manager 1400 N 151, St Immokalee FI.34142 Florida community Bank, N.A. P: 239-657-31711 F: 239 -657 -8482 E: Icartagena@fcbl923.com FloridacommunityBank.com FCB: Florida Based. Florida Focused. Packet Page -861- EQUlH0UVHG E - jJ LENDER i FDIC 899 m3 7/7/2015 16.A.11. CONSTRUCTION, MAINTENANCE AND ESCROW AGREEMENT FOR SUBDIVISION IMPROVEMENTS THIS AGREEMENT entered into this 21 st day of April, 2012, by Empowerment Alliance of Southwest Florida CDC (hereinafter "Developer'), THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, (hereinafter "The Board") and Florida Community Bank N.A. (hereinafter "Lender")- RECITALS: A. Developer has, simultaneously with the delivery of this Agreement, applied for the approval by the Board of a certain plat of a subdivision to be known as Hatchers Preserve. B. The subdivision will include certain improvements which are required by Collier County ordinances, as set forth in a site construction cost estimate ( "Estimate ") prepared by Q. Grady Minor & Associates, a copy of which is attached hereto and incorporated herein as Exhibit 1. For purposes of this Agreement, the "Required improvements" are limited to those described in the Estimate. C. Sections 10.02.05 C. and 10.02.04 of the Collier County Subdivision Code Division of the Unified Land Development Code requires the Developer to provide appropriate guarantees for the construction and maintenance of the Required Improvements. D. Lender has entered into a construction loan agreement with Developer dated 12/21/09. Account No.. 14725004 -1 (the "Construction Loan's to fund the cost of the Required Improvements. E. Developer and thq•Board have acknowledged that the amount Developer is required to guarantee pursuant to this Agreement is $80,000, and this amount represents 110% of the Developer's engineer s estimate of the construction costs for the Required Improvements. NOW, THEREFORE, in consideration of the foregoing premises and mutual covenants hereinafter set forth, Developer, the Board and the Lender do hereby covenant and agree as follows: 1. Developer will cause the water, sewer, roads, drainage and like facilities, the Required Improvements, to be constructed pursuant to specifications that have been approved by the County Manager or his designee within 36 months from the date of approval of said subdivision plat. 2. Developer hereby authorizes Lender to hold $80,000 from the Construction Loan in escrow pursuant to the terms of this Agreement. 3. Lender agrees to hold in escrow $80,000 from the Construction Loan to be disbursed only pursuant to this Agreement. Lender acknowledges that this Agreement shall not constitute a draw against the Construction Loan fund, but that only such (ands as are actually disbursed, whether pursuant to this Agreement or a provision of the Construction Loan, shall accrue interest. 4. The escrowed funds shall be released to the Developer only upon written approval of the County Manager or his designee who shall approve the release of the funds on deposit not more than once a month to the Developer, in amounts due for work done to date based on the percentage completion of the work multiplied by the respective work costs less ten percent (10 %); and further, that upon completion of the work, the County Manager or his designee shall approve the release of any remainder of escrowed funds except to the extent of $ io 6&&• op which shall remain in escrow as a Developer guaranty of maintenance of the Required Improvements for a minimum period of one (1) year pursuant to Paragraph 10 of the Agreement. However, in the event the Developer shall fail to comply with the requirements of this Agreement, then the Lender agrees to pay to the County immediately upon demand the balance of the funds held in .. 7/7/2015 16.A.11. the T ender, as of the date of the demand, provided that upon payment of such balance to the escrow by .h., � - g� for " County, the County will have executed and delivered to the Lender in exchange .or such funds a statement to be signed by the County Manager or his designee to the effect that: (a) Developer for more than sixty (60) days after written notification of such failure has failed to comply with the requirements of this agreement; ve- (b) The County, terms of the or its authorized agent, will complete the work called for under the ole discreti oon mentioned contract or will complete such portion of such work as the County, shall deem necessary in the public interest to the shall extent he used for held in escrow; the Required (c) The escrow funds drawn down by the County Improvements, engineering, legal and contingent costs and expenses, and to offset any damag es, either direct or consequential, which the County may sustain on account of the failure of the Developer to carry out and execute the above- mentioned development work; and (d) The county will promptly repay to the Lender any portion of the funds drawn down and not expended in completion of the said development work. specifying what amounts are to be paid to the Developer 5. Written notice to the lender by the County shall constitute authorization by the County to the Lender er of the relea specified in a letter of nds to se of only those the Developer. Payment by the Lender to the D p authorization by the County to the Lender shall constitute with the by etter of authorization from the the Lender for the specified funds disbursed in accordance County• P approval until a statement of 6. The Required improvements shall not be considered for preliminary substantial completion by Developer's engineer along manager er oir hisdesicgnee for compl been with the furnished to be reviewed and approved by the County g Collier County Subdivision Regulations. t 60 days of receipt of the statement of 7, The County Manager or his designee shall, within six ( ) Y substantial completion, either: a) notify the Developer of his refusal to approve the iiripro ementsthe improvements; or b) notify the Developer in g therewith specifying those conditions which the D= leloper event mus shall the County obtain the Dhirector's approval of the Required Improvements. However, designee refuse preliminary approval of the improvements if they are in fact constructed and submitted for approval in accordance with the requirements of this Agreement. 8. Should the funds held in escrow be insufficient �ocomplete complete the Required Improvements after after duly considering the public interest, may a option resort to any and all legal remedies against the Developer. 9. Nothing in this Agreement shall make the Lender liable for provision; provided, that the Lenderidoes deposit by the Developer in accordance with the foregoing p not release any monies to the Develope r to any other person y funds from t etas ountiwitout first Agreement to include closing the account, requesting and receiving written approval from the County• year after preliminary approval 10. The Developer shall er'o his s Required the one year Improvements for period by the Developer and by the County Mang g Mana er or his designee shall inspect upon submission of a written request for inspection, the County the Required Improvements and, if found to be still in the c Board under this eAgreement is terminated. t d.l approval by the Board, the Lender s responsibility to The Developer's responsibility for maintenance of the Required Improvements shall continue unless or until the Board accepts maintenance responsibility for and by the County. Packet Page -863- 7/7/2015 16.A.11. i 1. All of the terms, covenants and conditions herein contained are and shall be binding upon the respective successors and assigns of the Developer and the Lender. IN WITNESS WHEREOF, the Board and the Developer have caused this Agreement to be executed I by their duly authorized representatives this 11 S+ day of >�ri i 20 Empower m ent All' . C SIGNED IN THE PRESENCE OF: _ B Printed Name: ' (fora• { }i... C..- c-nK- /� Chairman SIGNED IN THE PRESENCE OF: Printed Name: T)m- 1 {� y �' 00 7 --Zi ame; Dwight E. Brock, Clerk By: C . Depu App rca gal sufficiency: Assistant C14unty A Brent Dykstra Assistant Vice President Board of County Commissioners of Collier County, Florida By: Chairman Packet Page -864-