Agenda 05/13/2014 Item # 11B 5/13/2014 11 .B.
EXECUTIVE SUMMARY
Recommendation to determine whether to rescind, hold in abeyance,or retain and assess the
La Peninsula Municipal Service Benefit Unit (MSBU).
OBJECTIVE: To move the La Peninsula project forward, including an engineering study and a
judicial determination in a bond validation proceeding.
CONSIDERATIONS: La Peninsula is a private, gated community located on the Isles of Capri, across
from Marco Island, on the Southwest Gulf Coast of Florida. On October 8, 2013, upon Public Petition
to the Board, the La Peninsula Condominium Association, Inc. requested that the Board of County
Commissioners (BCC) adopt an ordinance to establish a Municipal Service Benefit Unit (MSBU)
to fund seawall repairs and/or replacements. Preliminary engineering reports prepared in 2010
conclude that the structure was constructed 41 years ago and is nearing the end of its design life.
Complicating the situation is the fact that the channel bottom adjacent to the wall has significantly scoured.
Large quantity of riprap placed in front of the wall has helped stabilize the wall but the channel continues
to scour. At the time the report recommended the seawall be replaced within the next four years and
estimated the work in the$4 million range.
On December 10, 2013, the BCC adopted a resolution to authorize the use of the uniform
method of collecting non-ad valorem special assessments within the La Peninsula community and
adopted an ordinance to establish the La Peninsula Seawall Municipal Services Benefit Unit.
On January 2, 2014, by Public Petition, the Collier County Libertarian Party requested that the Board
rescind both the resolution and the ordinance on the grounds that since La Peninsula is a private
community, the Board's actions in establishing this MSBU was in violation of Article VII, Section 10
of the Florida Constitution, which prohibits the state and its subdivisions from using the taxing power to
aid any private persons or entities.
The matter was then brought back for a full public hearing before the BCC. Given the issues raised
by the opposition, the Board decided to resolve the issue of the legality of any financing in the
form of a Chapter 75 bond validation proceeding. Concerned that the Clerk would be uncomfortable
approving any payments prior to the Court's ruling on a bond validation proceeding, the BCC directed
that the County Attorney work with the Clerk to seek an Attorney General Opinion that this MSBU was
lawfully created. After reviewing the matter, the Clerk and the County Attorney concluded that an
Attorney General opinion would not be helpful in this matter, and instead recommended the following:
That the La Peninsula Condominium Association pays the County in advance for the estimated costs to be
incurred. That these funds be held in Trust for La Peninsula Condominium Association in a separate fund
and not be considered public moneys. That until there is a judicial decision on the bond validation
proceeding, all expenditures in connection with this MSBU will be made out of these private funds.
That if additional moneys are needed, they come from the same source and be deposited in the same
account. That if, and only if there is a judicial decision arising out of a bond validation proceeding which
upholds the legality of the ordinance and the financing, then at that point the moneys previously paid
could be reimbursed to the Condominium Association as part of the financing.
On March 24, 2014, the La Peninsula Master Board voted 5-2 to rescind the December 17, 2013 Master
Board authorization to advance payment of $65,000 to the County. With no funding provided by the
Master Association the above noted recommendation to proceed through the process with private funding
until such time that the judicial decision was determined through the bond validation proceeding is not
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possible.
Staff conducted a meeting with the Advisory Board to determine what they would like to do regarding the
MSBU, whether to rescind the MSBU or hold it in abeyance until there was clear community direction.
On April 10, 2014 at a regular meeting, the La Peninsula Seawall MSBU Advisory Committee motioned
to recommend that the BCC retain the MSBU; find funding for operations of the MSBU, and to take the
project through to completion. The motion passed 5-0. Additionally, the Advisory Committee motioned
to recommend to the BCC that they initiate a fair and equitable assessment method for the distribution of
non-ad valorem taxes to support the acquisition of operating funds and the cost of the overall project to be
implemented for FY 15. That motion passed 5-0.
On April 14, 2014 the Master Board sent the attached email notifying the BCC that at a meeting the same
day, the Master Board of The Club at La Peninsula voted 5 to 1 to request that the Collier County Board
of Commissioners rescind the ordinance establishing an MSBU for La Peninsula. The email also noted
that the Master Board polled the community about whether or not to proceed with the MSBU and
received a vote of 81 favoring moving forward with their private plan and 30 favoring continuing with the
MSBU. The polling also stated that those not responding to the poll would be considered deferrals to the
decision of the Master Board (65 did not respond).
In light of the conflict between the Advisory Board recommendation and that of the Master Association
Board staff is bringing this matter to the BCC for their consideration and direction. The MSBU was
established with the BCC being presented with a formal petition with signatures from 65 percent of the
property owners favoring the establishment of an MSBU. The request to rescind the MSBU is
representative of an unattested poll conducted by the Master Board: 81 favoring a private plan, 30
favoring the MSBU, and 65 non-responses. With that said, this process cannot move forward without
work access easements for the seawall which are controlled by the Master Board. It appears that the
majority of the Master Board prefers a private plan and consequently may not authorize the conveyance
of an easement.
FISCAL IMPACT: No budget has been established for the La Peninsula Seawall MSBU. Cost however
has been incurred by the County for outside Counsel in the amount of$6,444.24 which is being requested
to be reimbursed by the Master Board.
GROWTH MANAGEMENT IMPACT: None.
LEGAL CONSIDERATIONS: This item has been reviewed by the County Attorney, is approved as to
form and legality, and requires majority vote for approval. -JAK
RECOMMENDATION: Recommendation that the Board of County Commissioners determine
whether to:
1) Rescind the MSBU. Under this option the Master Association will have sole responsibility for the
repair and financing of the seawall in perpetuity. If the community fails to repair and finance the
seawall, the Board of County Commissioners may exercise its authority under Ordinance 85-2 to
prevent or remedy any failure to the seawall;
2) Hold the MSBU in abeyance until the La Peninsula community validates a plan for repairing the
seawall. This option requires no immediate action of the Board of County Commissioners but to
obtain assurances from the Master Association that they will provide evidence of a plan and
applicable financing for the repairs to the seawall and execute the same. After one year, if such
plan and financing has not been obtained by the Master Association, the Board could begin
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funding the MSBU to cover the assessment and bond validation and ultimately repairs of the
seawall; or
3) Retain the MSBU and begin assessment of the property owners in order to go through the process
of bond validation through seawall repairs. Under this option there is a risk of duplication of
efforts by the Association and the MSBU and increased costs due these parallel courses of action.
Additionally, obtaining necessary work access easements for the seawall may not be possible
without the cooperation of the Master Association.
PREPARED BY: Harry Sells, Project Manager, ATM Department
3
J
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COLLIER COUNTY
Board of County Commissioners
Item Number: 11.11.B.
Item Summary: Recommendation to determine whether to rescind, hold in abeyance, or
retain and assess the La Peninsula MSBU. (Michelle Arnold, Alternative Transportation Modes
Director)
Meeting Date: 5/13/2014
Prepared By
Name: SellsHarry
Title:VALUE MISSING
4/17/2014 1:27:19 PM
Submitted by
Title: VALUE MISSING
Name: SellsHarry
4/17/2014 1:27:20 PM
Approved By
Name: ArnoldMichelle
Title: Director-Alt Transportation Modes,Alternative Transportation Modes
Date: 4/22/2014 8:24:46 AM
Name: TownsendAmanda
Title: Director-Operations Support,Public Services Division
Date: 4/24/2014 9:06:33 AM
Name: SotoCaroline
Title: Management/Budget Analyst, GMD Construction&Maintenance Admin
Date: 4/24/2014 11:59:50 AM
Name: AlonsoHailey
Title: Operations Analyst,Public Services Division
Date: 4/25/2014 10:21:11 AM
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5/13/2014 11.B.
Name: KlatzkowJeff
Title: County Attorney,
Date: 4/29/2014 9:20:23 AM
Name: CarnellSteve
Title: Administrator-Public Services, Public Services Division
Date: 5/1/2014 8:24:12 AM
Name: KlatzkowJeff
Title: County Attorney,
Date: 5/1/2014 9:10:13 AM
Name: IsacksonMark
Title: Director-Corp Financial and Mngmt Svs, Office of Management&Budget
Date: 5/1/2014 9:40:09 AM
Name: KlatzkowJeff
Title: County Attorney,
Date: 5/1/2014 10:52:11 AM
Name: OchsLeo
Title: County Manager, County Managers Office
Date: 5/1/2014 2:23:53 PM
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5/13/2014 11 .B.
From: HenningTom
To: ArnoldMichelk
Subject: FW: LaPeninsula easement
Date: Thursday,May 01,2014 3:07:04 PM
Can you please place in the backup for your ES on 5/13/14? Thanks so much!
Respectfully,
Camden Smith, MPA
Executive Coordinator to Commissioner Henning
Board of County Commissioners
Ph: (239) 252-8605
Email: CamdenSmith @colliergov.net
Notice to recipients: All emails and attachments received or sent regarding county business and/or BCC
agenda items are public record in compliance with the State of Florida's Sunshine Law.
Original Message
From: Dick Van Deelen [mailto:vandeer02CTcomcast.net]
Sent: Thursday, May 01, 2014 3:06 PM
To: HenningTom; FialaDonna; HillerGeorgia; CoyleFred; NanceTim
Cc: Steve Adamczyk,; Bob White; Mike Pierpaoli; Robert Gerard Gerard; Eric Loth; Bob Wilcox; Jay
Benedetti
Subject: LaPeninsula easement
Commissioners Henning, Fiala, Hiller, Coyle, and Nance,
This is to inform you that the LaPeninsula Master Board in a special meeting today voted to NOT give
an easement to the county for an MSBU planned and financed seawall repair/ replacement. We want
the MSBU ended so that we can proceed with planning and financing the project ourselves.
The Board also voted to retain an engineering firm to begin moving the project forward with permitting
and design of the seawall stabilization, pending word that the LaPeninsula MSBU has been cancelled.
Respectfully,
Dick Van Deelen, Pres.
La Peninsula Master Board
Under Florida Law, e-mail addresses are public records. If you do not want your e-mail address
released in response to a public records request, do not send electronic mail to this entity. Instead,
contact this office by telephone or in writing.
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5/13/2014 11.B.
From: ArnoldMichelle
To: Klatzkow]eff
Cc: CarnellSteve;TeachScott: Sells Harry
Subject: RE: La Peninsula
Date: Monday,April 14,2014 9:18:49 AM
Okay, I will put together an item for the next available BCC meeting.
Michelle Edwards Arnold, Director
Alternative Transportation Modes Department
3299 Tamiami Trail East, Suite 103
Naples, Florida 34112
239-252-5841
From: KlatzkowJeff
Sent: Monday, April 14, 2014 9:04 AM
To: ArnoldMichelle
Cc: CarnellSteve; TeachScott; SellsHarry
Subject: RE: La Peninsula
Michelle:
The Advisory Committee's recommendation is not compatible with my understanding
of current Board direction. Before proceeding with this, my thought is to take the Advisory
Committee's recommendation to the BCC for their review and direction.
Jeffrey A. Klatzkow
County Attorney
(239) 252-2614
From: ArnoldMichelle
Sent: Friday, April 11, 2014 1:52 PM
To: KlatzkowJeff
Cc: CarnellSteve; TeachScott; SellsHarry
Subject: RE: La Peninsula
Jeff,
We met with the La Peninsula Advisory Board yesterday and discussed the issue of what to do with
the MSBU considering the reconsideration of the Master Association Board to fund the operations
of the MSBU.
The Committee motioned to continue with the MSBU and to have staff initiate a fair and equitable
assessment method to assess the property owners of La Peninsula in order to acquire operating
funds for FY 15. I'd like to meet with you and whomever you think would be necessary to figure out
how we more forward with this request.
Let me know when you would like to meet.
Thanks,
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Michelle Edwards Arnold, Director
Alternative Transportation Modes Department
3299 Tamiami Trail East,Suite 103
Naples, Florida 34112
239-252-5841
Original Message
From: ArnoldMichelle
Sent: Monday, March 31, 2014 2:55 PM
To: KlatzkowJeff
Cc: CarnellSteve; TeachScott; SellsHarry
Subject: RE: La Peninsula
Thank you. We will put on the agenda for the MSBU's need meeting - April
10th.
Michelle Edwards Arnold, Director
Alternative Transportation Modes Department
3299 Tamiami Trail East, Suite 103
Naples, Florida 34112
239-252-5841
Original Message
From: KlatzkowJeff
Sent: Monday, March 31, 2014 2:21 PM
To: ArnoldMichelle
Cc: CarnellSteve; TeachScott; SellsHarry
Subject: La Peninsula
Michelle: As discussed, I recommend that the Advisory Board hold a meeting
and then advise us of their recommendation before we go to the Board. We can
either rescind the Ordinance, or keep it in abeyance until there is clear
community direction. The one thing I believe no one wants to see is the
Ordinance rescinded, then brought back a short time later.
Jeffrey A. Klatzkow
County Attorney
(239) 252-2614
Original Message
From: ArnoldMichelle
Sent: Monday, March 31, 2014 2:06 PM
To: KlatzkowJeff
Cc: CarnellSteve
Subject: FW: MSBU
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Jeff,
Please see email from Dick Van Deelan, the Master Association President for
La Peninsula, below.
Apparently the Master Board met and decided below but I don't believe they
held a meeting with the community members.
Michelle Edwards Arnold, Director
Alternative Transportation Modes Department
3299 Tamiami Trail East, Suite 103
Naples, Florida 34112
239-252-5841
Original Message
From: SellsHarry
Sent: Monday, March 31, 2014 7:54 AM
To: ArnoldMichelle
Subject: MSBU
I don't think I ever forwarded this to you. . .
Harry
Original Message
From: Dick Van Deelen [mailto:vandeer02 @comcast.net]
Sent: Monday, March 24, 2014 2:41 PM
To: SellsHarry
Subject: MSBU
Mr. Sells,
This is to inform you that at a special meeting today, March 24, of the La
Peninsula Master Board the Board voted 5-2 to:
1. Rescind the December 17, 2013 authorization to advance
payment of $65,000 to the county for the MSBU.
2. Advance no more funds to the county for an MSBU.
3. Inform the board of Commissioners that La Peninsula no
longer wishes to pursue an MSBU, but instead will move
forward immediately with private planning, executing,
and financing repairs and/ or replacement of our seawall.
Thanks you for your help.
Dick Van Deelen, President
La Peninsula Master Board of Directors
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Under Florida Law, e-mail addresses are public records. If you do not want
your e-mail address released in response to a public records request, do not
send electronic mail to this entity. Instead, contact this office by
telephone or in writing.
Under Florida Law, e-mail addresses are public records. If you do not want
your e-mail address released in response to a public records request, do not
send electronic mail to this entity. Instead, contact this office by
telephone or in writing.
Under Florida Law, e-mail addresses are public records. If you do not want
your e-mail address released in response to a public records request, do not
send electronic mail to this entity. Instead, contact this office by
telephone or in writing.
Under Florida Law, e-mail addresses are public records_ If you do not want your e-mail address released in response to a public
re-ponds request. not send elactronic may!to This entity.instead; contact Shia o:i e by telephone or in writing.
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From: HenninuTom
To: Klatzkowieff
Subject: Fwd: La Peninsula MSBU
Date: Tuesday,April 15,2014 10:35:22 AM
Sent from my iPad
Begin forwarded message:
From: Dick Van Deelen <vandeer02Ca�comcast.net>
Date: April 14, 2014 at 9:40:02 PM EDT
To: HenningTom <TomHenning( colliergov.net>
Cc: FialaDonna <DonnaFialaCacolliergov.net>, HillerGeorgia
<GeorgiaHiller( colliergov.net>, CoyleFred <FredCoyle(acolliergov.net>,
NanceTim <TimNancecolliergov.net>
Subject: La Peninsula MSBU
Chairman Henning, and Commissioners Coyle, Fiala, Hiller, and Nance,
Today, April 14, 2014, the Master Board of The Club at La Peninsula
voted 5 to 1 to request that you as the Collier County Board of
Commissioners rescind the ordinance establishing an MSBU for La
Peninsula.
On March 24, 2014, the Master Board in a special Board meeting
voted to:
- Rescind the Dec. 17, Master Board authorization to advance payment of
$65,000 to the county
- Advance NO more funds for the MSBU
- Inform the Board of Commissioners via email communication to
Commissioner Fiala and Project Manager Harry Sells that La Peninsula
no longer wished to pursue an MSBU, but instead wanted to move
forward immediately with private planning, executing, and financing
repairs and/or replacement of the seawall
The decision of the LaP Board to 'defund' the MSBU and
proceed with private planning for the seawall repair and
financing happened because what we had been led to believe
were the advantages of the MSBU evaporated.
-25-30 amortization of the cost we learned from
a county finance committee that financing would be for 10
years, a bank loan and not bond financing.
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-A November general election vote as a 'backstop' vote in
the event of broad owner dissatisfaction with the county plan
and cost. Only a few weeks ago Attorney Klatzkow confirmed
that there would be no such vote.
-Then the citizen petition opposing the LaP MSBU on
constitutional grounds first there was approval for
an AG opinion, but then Klatzkow changed his willingness to
proceed with this, and instead recommended proceeding right
to the bond validation hearing in Circuit court more
costs and delays 3-4 months if no appeal of a Circuit
Court decision, and 12-18 months more if appealed to the
Florida Supreme court.
- The final blow was the appointment of the Advisory Board.
From 16-17 applicants, 5 were selected who are a small but
determined group who want an entire new steel seawall
installed using a specific engineering firm. This selection
happened in Commissioner Fiala's office through the influence
of two of the persons now on the committee. These persons
presently have their own units listed for sale; yet they remain
on the Advisory Board, one as committee chairperson.
There went any hope for a truly representative and 'objective'
committee.
In the meantime our board went ahead with exploring private
funding. We now have letters of commitment from two
banks, and expect a Terms and Conditions proposal from a
third bank. (It has arrived, and offers an attractive fixed rate
for ten years.) The terms are 10 year financing with 20 year
amortization and with balloon payments after 10 years, but
refinancing assured at that time based on current interest
rates.
It is also important to know that we polled the community
regarding whether or not to proceed with the MSBU before we
voted on March 24 to end it.. That vote was 81 favoring Plan
B (private plan) and 30 favoring continuing with the MSBU.
The polling letter also stated that those not responding to the
poll would be considered deferrals to the decision off the
Board. There are 176 units at LaPeninsula. 81 + 30= 111
responses. 65 did not respond. (considered deferring to the
Board's decision.) The "bottom line" is that the vast majority
of LaPeninsula owners want the MSBU ended.
We informed Commissioner Fiala of this Board decision the same day,
March 24, 2014. She responded thanking us for the information and
wished us well. Likewise, we informed Harry Sells, and that email to him
is/was posted on the county website. He acknowledged receipt of the
informing email. We assumed that informing them that our master board
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had voted to defund the MSBU would settle the matter as we had been
told that funding the MSBU had to be "revenue neutral." . It did not
settle the matter.
There was a meeting held by the LaPeninsula Advisory Board the
morning of April 10, 2014 on the grounds of La Peninsula in the
clubhouse. The gate was opened, and there were signs for a "Public
Meeting" on our property. Including 4 Advisory Board members,
Michelle Arnold, Harry Sells, and 3-4 LaPeninsula owners, there were
about 10 persons present. Permission to hold the meeting on our private
property had not been requested, nor were our residents notified of the
time and place on the property bulletin boards; nor was the time of the
meeting listed on the county website.
Following this meeting and in an ensuing telephone call to Michelle
Arnold, I was told that the LaPeninsula Board needed to inform the BCC
that LaPeninsula Master Board wanted the LaPeninsula MSBU rescinded.
Days earlier I had been told by Ms. Arnold that if the Board wanted to
end the MSBU we only needed to tell them. (We took"them" to mean
Michelle Arnold and Commissioner Fiala.)
This Board action happened today. At the same meeting we also had
presentations from two engineering firms. We want to move forward
with retaining one of them and getting on with developing a final design
for permitting and bidding. Time is of the essence.
We request that the Board of Commissioners rescind the LaPeninsula
MSBU at the next BCC meeting.
Following within this email is the motion approved today 5:1 (1 member
not present). A hard copy will follow by registered US mail.
We are also asking for a personal meeting with you at your earliest
convenience,
Respectfully,
Richard Van Deelen, Pres.
The Club at LaPeninsula
MOTION
WHEREAS, on March 24, 2014 at a special meeting the Board of Directors of The Club
at La Peninsula (Master Board) voted to:
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5/13/2014 11.B.
• Rescind the Dec. 17, 2013 Master Board authorization to advance payment of
$65,000 to the county
• Advance NO more funds for the MSBU
_ Inform the Board of Commissions via email communication to Commissioner Fiala and
Project Manager Harry Sells that La Peninsula no longer wishes to pursue an MSBU, but
instead will move forward immediately with private planning, executing, and financing
repairs and/or replacement of the seawall
NOW THEREFORE, on April 14, 2014 at a special meeting of the Board of Directors
the following motion is brought forward:
• To inform the Collier County Board of Commissioners that the Master Board of La
Peninsula asks the Board of Commissioners to rescind the LaPeninsula MSBU
ordinance, and
• Cease all further county administrative and staff activities on an MSBU for
LaPeninsula
Motion made: Wilcox
Motion supported: Benedetti, White
Voting in favor: Benedetti, Loth, White, Wilcox, Van Deelen
Voting opposed: Pierpaoli
Vote outcome: Motion passed
Signed: Richard Van Deelen, Pres.
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5/13/2014 11.B.
The Club at LaPeninsula
Date: April, 14, 2014
Under Florida Law, e-mail addresses are public records. If you do not want your e-mail address released in response to a public
records request, do not send electronic mail to this entity. Instead,contact this office by telephone or in writing,
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