Agenda 07/24/2012 Item #12A7/24/2012 Item 12.A.
EXECUTIVE SUMMARY
Recommendation to approve settlement prior to trial in the lawsuit entitled G.L. Homes of
Naples Associates H, Ltd. v. Collier County, a political subdivision of Florida through its
governing body, Board of County Commissioners of Collier County, Case No. 09- 2451 -CA,
filed in the Twentieth Judicial Circuit in and for Collier County, Florida, and authorize the
Chairman to execute the Settlement Agreement. Companion to Items 8A, 9B and III
OBJECTIVE: To settle a lawsuit brought by G.L. Homes of Naples Associates II, Ltd. (G.L.
Homes) with respect the reimbursement of Road Impact Fee Credits.
CONSIDERATIONS: This lawsuit stems from a May 9, 2006 Agreement for Road Impact
Fees with G.L. Homes. The Agreement provided that in exchange for transportation
concurrency vesting, G.L. Homes would construct the Logan Boulevard extension between
Vanderbilt Beach Road and Immokalee Road. G.L. Homes would then be reimbursed for its cost
of constructing Logan Boulevard through Road Impact Fee Credits. The Agreement
contemplated the construction of 850 units, but none were built. In its Complaint, G.L. Homes
sought a cash reimbursement in the amount of $10,060,515.96 for the costs it incurred in this
completed road project.
In recognition of the construction of the project, the proposed Settlement Agreement vests G.L.
Homes, with respect to Transportation Concurrency, in perpetuity, 850 residential dwelling units
in and for the Terafina Development. G.L. Homes would be entitled to $10,060.515.96 in Road
Impact Fee Credits which will be reduced as building permits are issued. In the event Road
Impact Fee Credits remain unspent upon build -out, G.L. Homes could either transfer the credits
to another permitted project within the same or adjacent transportation impact fee district, or
receive a cash reimbursement pursuant to the terms set forth in the Settlement Agreement.
FISCAL IMPACT: None.
GROWTH MANAGEMENT IMPACT: None.
LEGAL CONSIDERATIONS: The Settlement Agreement was prepared by the County
Attorney, is legally sufficient, and requires majority vote for approval. -JAK
RECOMMENDATION: That the Board of County Commissioners approves and authorizes its
Chairman to sign the attached Settlement Agreement relating to the lawsuit entitled G.L. Homes
of Naples Associates H, Ltd. v. Collier County, a political subdivision of Florida through its
governing body, Board of County Commissioners of Collier County, Case No. 09- 2451 -CA.
PREPARED BY: Jeffrey A. Klatzkow, County Attorney
Page 1 of 1
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7/24/2012 Item 12.A.
COLLIER COUNTY
Board of County Commissioners
Item Number: 12.A.
Item Summary: Recommendation to approve settlement prior to trial in the lawsuit
entitled G.L. Homes of Naples Associates ll, Ltd. v. Collier County, a political subdivision of
Florida through its governing body, Board of County Commissioners of Collier County, Case No.
09- 2451 -CA, filed in the Twentieth Judicial Circuit in and for Collier County, Florida, and
authorize the Chairman to execute the Settlement Agreement.
Meeting Date: 7/24/2012
Prepared By
Name: CrotteauKathynell
Title: Legal Secretary,County Attorney
7/12/2012 11:09:03 AM
Approved By
Name: GreenwaldRandy
Title: Management/Budget Analyst,Office of Management & B
Date: 7/12/2012 4:12:08 PM
Name: KlatzkowJeff
Title: County Attorney
Date: 7/16/2012 10:27:32 AM
Name: PriceLen
Title: Administrator, Administrative Services
Date: 7/16/2012 12:12:56 PM
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7/24/2012 Item 12.A.
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR
COLLIER COUNTY, FLORIDA
CIVIL ACTION
G.L. HOMES OF NAPLES ASSOCIATES II,
LTD., a Florida Limitied Patnership,
Plaintiff,
V. Case No. 09- 2451 -CA
COLLIER COUNTY, a political subdvision of
Florida through its Governing Body, BOARD
OF COMMISSIONERS OF COLLIER
COUNTY,
Defendant.
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (hereinafter referred to as the "Agreement ") is made
and entered into this _ of ' 2012, by and between G.L. Homes of Naples Associates
II, Ltd. (the "Developer ") and Collier County, Florida, a political subdivision of the State of
Florida (the "County ").
WHEREAS, on December 17, 2002, Developer and County entered into that certain
Standard Form Collier County Contribution Agreement for Road Impact Fees (No. 2002- 009 -TR-
GL Homes), hereinafter referred to as the "Original Agreement;" and
WHEREAS, on May 9, 2006, Developer and County entered into that certain Amended
and Restated Standard Form Collier County Contribution Agreement for Road Impact Fee Credits
recorded in OR Book 4034, Pages 1820 -1860, Official Records of Collier County, Florida
hereinafter referred to as the "Amended Agreement; "and
WHEREAS, the roadway improvements contemplated in the Amended Agreement have
been completed by Developer and accepted by County; and
WHEREAS, the Amended Agreement granted cash and credits for road impact fees and
certain vesting rights for road concurrency, in exchange for the Developer's contribution of
advanced off -site roadway construction improvements consisting of the extension of Logan
Boulevard as a two (2) lane roadway between Vanderbilt Beach Road and Immokalee Road
(hereinafter described as the "Project"); and
WHEREAS, Developer is the fee owner of certain lands, (hereinafter referred to as
"Terafina "), described and graphically rendered in Composite Exhibit "A", attached hereto and
incorporated herein by reference, which upon development in the near future will be subject to the
imposition of an estimated $5,528,476.50 in Road Impact Fees; and
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7/24/2012 Item 12.A.
WHEREAS, the parties agree that based on the actual cost of construction of the Project
that Developer has Road Impact Fee Credits in the amount of Ten Million Sixty Thousand Five
Hundred Fifteen and 96/100 Dollars (510,060,515.96); and
WHEREAS, subsequent to the County's acceptance of Developer's completion of the
Project a dispute arose between the parties concerning the Amended Agreement which resulted in
litigation wherein the Developer brought suit against Collier County (G.L. Homes of Naples
Associates II, LTD. v. Collier County Board of County Commissioners., 09- 2451 -CA) now
pending in the Circuit Court for the Twentieth Judicial Circuit in and for Collier County, Florida,
as the Developer asserted it is entitled to the reimbursement of $10,060,515.96 in earned Road
Impact Fee Credits; and
WHEREAS the parties wish to settle this dispute on the terms and conditions set forth
below.
NOW, THEREFORE, in consideration of the foregoing premises and the following mutual
promises (the receipt and sufficiency of such consideration being acknowledged by all parties),
the parties agree as follows:
1. Recitals. The foregoing recitals are true and correct and are incorporated herein by
reference.
2. Denial of Liability. No party is admitting wrongdoing, fault, or liability of any nature
by entering into this Agreement.
3. Vesting of Terafina. In exchange for the advanced construction of the Project,
Developer is vested in perpetuity for eight hundred and fifty (850) residential dwelling units in
and for the Terafina Development as the construction of the Project has been deemed a
prepayment of Road Impact Fees. Said vesting shall be evidenced in a duly authorized Certificate
of Public Facilities Adequacy issued by the County. Developer shall apply for the Certificate of
Public Facilities Adequacy by way of written letter and a copy of this Agreement fully executed
and the County shall issue such Certificate based on the same within thirty [30] days of the
execution of this Agreement.
4. Road Impact Fee Credits. The amount of Road Impact Fee Credits to which Developer
is entitled to under this Agreement is Ten Million Sixty Thousand Five Hundred Fifteen and
96/100 Dollars ($10,060,515.96). The credit for Road Impact Fees identified herein shall run
with the Development and shall be reduced by the entire amount of each Road Impact Fee due for
each Building Permit issued thereon until the Development project is either completed or the
credits are exhausted or otherwise no longer available, or have been assigned by operation of or
pursuant to an assignment agreement with County. The foregoing reduction in the Road Impact
Fees shall be calculated based on the amount of the Road Impact Fees in effect at the time the
Building Permit is issued. The credits set forth herein shall be applied solely to Road Impact
Fees, and shall not offset, diminish or reduce any other charges, fees or other Impact Fees for
which Developer, its successors and assigns are responsible in connection with the development
of their lands. It shall be Developer's obligation to notify the County that a Road Impact Fee
Credit is available each time a building permit is ready for issuance. Final calculation of the
remaining road and other impact fees due will be based on the impact fee schedule in effect at the
time of the submittal of the building permits and shall be paid in full prior to issuance of each
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7/24/2012 Item 12.A.
building permit. These Road Impact Fee Credits shall in no event be subject to forfeiture,
reduction, rescission or diminishment.
5. Reimbursement of Excess Road Impact Fee Credits. In the event that upon build -out of
the Development the Road Impact Fee Credits are still unspent, the remaining balance shall, at
Developer's sole election, (1) be transferred to another permitted project within the same or
adjacent transportation impact fee district, or (2) be reimbursed to Developer. Any
reimbursement for excess Road Impact Fee Credits shall come from future receipts by the County
of Road Impact Fees, and shall be paid over a period of five years from the date of completion of
the Development as determined by the County, subject to annual appropriation by the County. It
is specifically understood and agreed that Developer may assign these Impact Fee Credits, in
whole or in part, and at any time, to the development known as "Parklands." Nothing in this
paragraph shall be deemed to be a limitation or prohibition of the Developer's right to assign and
transfer Road Impact Fee Credits at anytime, including but not limited to, an assignment prior to
the build -out of the Development, as permitted by the County's Consolidated Impact Fee
Ordinance.
6. Road Impact Fee Ledger. The County shall on a current basis maintain on the Road
Impact Fee Credit Ledger written evidence of the Road Impact Fee Credits earned, used by and
available to Developer until such time the Road Impact Fee Credit Ledger reflects a zero balance.
Developer shall have the right to rely upon the Road Impact Fee Credit Ledger for confirmation
of the Road Impact Fee Credits remaining to Developer under the terms of this Agreement.
7. Attorneys' Fees. All parties shall pay their own attorneys' fees and costs associated
with this matter.
8. Execution of Other Documents. The parties agree that they will execute any other
documents as are necessary to effectuate or carry out the intent of this Agreement.
9. Governing Law and Venue. This Agreement and all other documents executed in
connection with this Agreement shall be governed by and interpreted under Florida law. The sole
and exclusive venue for any litigation between the parties arising out of or related to this
Agreement or any documents executed in connection with this Agreement shall be in the Circuit
Court in and for Collier County, Florida.
10. Enforceability. In the event that any provision of this Agreement is found to be void
or unenforceable by a court of competent jurisdiction, the remaining provisions, in whole or in
part, shall continue to be enforceable to the greatest extent allowed by law and to the same extent
as if the void or unenforceable provision were omitted from this Agreement. This Agreement shall
be binding on Developer's successors, heirs, and assigns.
11. Entire Settlement Agreement. This Agreement contains the entire agreement between
the parties and all prior or contemporaneous negotiations or representations are merged into this
Agreement. This Agreement may not be amended or modified except in a written document
signed by the parties.
12. Execution. The Developer shall execute this Agreement prior to it being submitted for
approval by the Board of County Commissioners. This Agreement shall be recorded by the
County in the Official Records of Collier County, Florida, within fourteen (14) days after the
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County enters into this Agreement. The Developer shall pay all costs of recording this
Agreement. The County shall provide a copy of the recorded document to the Developer upon
request.
13. Dismissal of Liti ation. The County shall file the fully executed Agreement with the
Court in Case No. 09- 2451 -CA within ten (10) business days of the Agreement being recorded.
The Developer shall file an aYp cp --=' +P without prejudice of the litigation within five (5)
business days thereafter indicating that each Party shall bear its own attorneys' fees and costs.
Provided that County satisfies and complies with all the terms of this Settlement Agreement,
Developer shall be barred from recommencing this action, or any compulsory claim which could
have been asserted in this action.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their appropriate officials, as of the date first above written.
Attest:
DWIGHT E. BROCK, Clerk
LIZ
, Deputy Clerk
STATE OF FLORIDA
COUNTY OF BROWARD
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
FRED W. COYLE, Chairman
G.L. HOMES OF NAPLES ASSOCIATES II, LTD.,
a Florida Iimited partnership
By: G.L. Homes of Naples 11 Corporation, a Florida
corporation, its general partner
By: f/
A&I*J AW7 , as Vice President
The foregoing instrument was acknowledged before me this /�- day of °JN
2012, by Alan Fant, as Vice President of G.L. Homes of Naples II Corporation, lorida
corporation, as General Partner of G.L. HOMES OF NAPLES ASSOCIATES II, LTD., a Florida
limited partnership, on behalf of such limited partnership,-,He is personally known to me.
A �' d Ito -'form
and 1
iency:
3effrey
Ia kow
Collier o
ty Attorney
Notary Public
.1� Print Name: _
My Commission
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"FERRY KAPLAN t.Id:Lf11N
•. •': MY OOMMOSK M # E UM&
EXPIRES September 47, ZOl4
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