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Agenda 02/08/2011 Item #16K4 2/8/2011 Item 16.K.4. EXECUTIVE SUMMARY By request of the Collier County School Board, recommendation to amend the Town of Ave Maria Tri-Party Developer Contribution Agreement with Ave Maria Development, LLLP and The School District of Collier County, Florida, to incorporate recent changes to the Collier County Consolidated Impact Fee Ordinance allowing developer contribution impact fee credits to run with the land until used or transferred. OBJECTIVE: That the Board of County Commissioncrs (Board) approves the proposed Amendmcnt to Town of Ave Maria Tri-Party Dcvcloper Contribution Agreernent in ordcr to incorporate revisions to the Collicr County Consolidated Impact Fee Ordinance rclating to developcr contribution credit which allow the impact fee crcdits to run with thc land until uscd or transferrcd. CONSIDERATIONS: On Octobcr 23, 2007, the County entered into a Tri-Party Developcr Agreement with Ave Maria Devclopment, LLLP and The School District of Collicr County, Florida. In exchange for credit against Educational Impact Fees, Ave Maria Development, LLLP, as developer, transferred a 46-acre parcel in the TOWII of Ave Maria to the School District for use as a future elementary and middle school site. This Tri-Party Developer Agreemcnt also provides that the duration of, and availability of these credits, shall not exceed fivc years from the date of the Agreement (October 22, 2012) which was consistent with the 2007 Collier County Consolidated Impact Fee Ordinance, On May 25,2010, the Board adopted Ordinancc No. 2010-22 which amended certain sections of the Consolidated Impact Fee Ordinance including the section relating to developer contribution credit. As amended, "Impact fee credits shall run with the land in perpetuity interest free until used or assigned," The Collier County School Board has requested that the Developer Agreement be amended to conform to this change, The proposed Amendment, which was approved by the School Board at its January 18, 201 I rcgular meeting, incorporates this language. FISCAL IMPACT: None GROWTH MANAGEMENT IMP ACT: None, LEGAL CONSIDERATIONS: This itcm has been reviewed and approved by the County Attorney and requires a simple majority vote. JAK RECOMMENDATION: That the Board of County Commissioners approves the attached Amendment to Town of Avc Maria Tri-Party Developer Contribution Agreement which incorporates the revisions to the Collier County Consolidated Impact Fce Ordinance relating to developer contribution credit and allows the impact fee credits to run with the land until used or transferred. Prepared by: Jeffrey A. Klatzkow, County Attorney Packet Pa<?:e -697- 2/8/2011 Item 16.K.4. COLLIER COUNTY Board of County Commissioners Item Number: 16.K,4. Item Summary: By request of the Collier County School Board, recommendation to amend the Town of Ave Maria Tri-Party Developer Contribution Agreement with Ave Maria Development, LLLP and The School District of Collier County, Florida, to incorporate recent changes to the Collier County Consolidated Impact Fee Ordinance allowing developer contribution impact fee credits to run with the land until used or transferred. Meeting Date: 2/8/2011 Prepared By Name: CrotteauKathynell Title: Legal Secretary, County Attorney 1/27/20119:19:28 AM Approved By Name: KlatzkowJeff Title: County Attorney, Date: 1/27/201111:16:40AM Name: GreenwaldRandy Title: Management/Budget Analyst,Office of Management & B Date: 1/27/201112:11:20PM Name: OchsLeo Title: County Manager Date: 1/29/20112:39:47 PM Packet Page -698- 2/8/2011 Item 16.K.4. AMENDMENT TO TOWN OF AVE MARIA TRI-PARTY DEVELOPER CONTRIBUTION AGREEMENT THIS AMENDMENT TO TRI-PARTY DEVELOPER CONTRIBUTION AGREEMENT entered into this _ day of , 2011, by and between AVE MARIA DEVELOPMENT, LLLP, a Florida Limited Liability Limited Partnership ("Ave Maria" or "Developer"), THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, AS THE GOVERNING BODY OF COLLIER COUNTY (the "County"), and THE DISTRICT SCHOOL BOARD OF COLLIER COUNTY, FLORIDA (the "District"). WITNESSETH WHEREAS, Developer, the County and the District have previously entered into that certain Town of Ave Maria Tri-Party Developer Contribution Agreement, dated October 23, 2007 and recorded in the Official Records of Collier County, Florida: 4090363 OR: 4298 PG: 0419 (the "Agreement"); WHEREAS, in accordance with the terms and conditions of the Agreement, the Developer has contributed and conveyed to the District, by a Special Warranty Deed recorded in the Official Records of Collier County, Florida: 4195690 OR: 4383 PG: 0114, the Dedicated Land to be used by the District as a future elementary and middle school site; WHEREAS, in accordance with the terms and conditions of the Agreement, the County and the District granted and issued to Developer an Impact Fee Credit in exchange for the conveyance of the Dedicated Land; WHEREAS, Section 7 of the Agreement provides that the duration and availability of the Impact Fee Credit shall not exceed a period of five (5) years from the date of the Agreement and is, therefore, set to expire on October 22,2012; WHEREAS, by Ordinance No, 2010-22, the County has amended Article II, Section 74-205, subsection (f)(4) of the County Code of Laws and Ordinances to allow impact fee credits to run with the land in perpetuity until used or assigned; WHEREAS, the Developer now desires that that Section 7 of the Agreement be amended so that the Impact Fee Credit will run with the land in perpetuity until used or assigned; and WHEREAS, the County and the District are also desirous of amending Section 7 of the Agreement so that the Impact Fee Credit will run with the land in perpetuity until used or assigned. Packet Page -699- 2/8/2011 Item 16.K.4. NOW THEREFORE, in consideration of the covenants and agreements provided within the Agreement and Ten Dollars ($10,00) and other good and valuable consideration (the receipt of which is hereby acknowledged), the Agreement is hereby renewed and amended as follows: Recitals - The above recitals are true and correct and are incorporated herein by reference. Duration and Availabilitv of Imoact Fee Credit - Section 7 of the Agreement is deleted in its entirety and replaced with the following sentence: "The duration of, and availability of the Impact Fee Credit established pursuant to this Agreement shall run with the Development in perpetuity until used or assigned." Except as expressly modified in this Amendment, all defined terms and the terms and conditions contained in the Agreement shall remain in full force and effect the Developer, District and County hereby confirm and accept the terms of the Agreement (as modified herein) as of the execution of this Amendment. The terms and conditions of this Amendment shall govern in the event of a conflict between the terms and conditions of the Agreement and this Amendment. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their appropriate officials, as of the date first above written. ATTEST: DWIGHT E. BROCK, Clerk BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY FLORIDA , Deputy Clerk By: Fred Coyle, Chairman By: rm and legal sufficiency: Jeffre Coun THE SCHOOL DISTRICT OF COLLIER COUNTY, FLORIDA By: ~J1J~,-- Julie rague, ir Attest: iZ-. 2~ Dr. Dennis Thompson, Sup ten dent Fishbane rict General Counsel Packet Page -700- 2/8/2011 Item 16.K.4. AVE MARIA DEVELOPMENT, LLLP a Florida limited liability limit~dpartnership / OJ..(IER CORPORATION, artner ' E, BAIRD By: :pj..A Sig a r Jpf{ SonCAI,'c;. Prioled N'm. ,( ~ ~ mOMAs L. TREADWELL, J~ Printed Name STATE OF FLORIDA COUNTY OF COLLIER .'-. - The foregoing instrume~ , was a~Q,wledged before me this \ 5 day of ,~c.PJ\'Y\\,.,r.--/ ,201D, by ..!::lDI.f:J.CSU'"'o reJ-- , as its President of Ave Maria Development, LLLP, a Florida limited liabfffty limited partnershIp, He is. personally known to me, or he has produced driver's license no, ~ as identification 1./ H G.::tu-~ NOTARYIpU~ " ~,.. ""'~'''''''' 11FFANY MAlTEAU : 'R.;iJ'" ~ MYCOMMISSlON'00 98n16 k.~ . ;'1 EXPIRES: AugU&131,2014 ~.' :.:}...." "~ Bonded ThnJ NotaryPublieUndel'M'il~ '~. ",P.I,,~' ;":,.;.. ._", Tiffany Matteau Printed Name My Commission Expires: SEAL Packet Page -701- 2/8/2011 Item 16.K.4. . ,\rict SchOOl ~~~ <~, a. ~ a ... "'Collier COI1<''' OFFICE OF DIRECTOR INTERAGENCY. REAL PROPERTY & REGULATORY COORDINATION THE DISTRICT SCHOOL BOARD OF COLLIER COUNTY 5775 Osceola Trail, Naples, Florida 34109-0919 (239) 377-0267 Phone (239) 377-0271 FAX January 21,2011 Jeffrey Klatzkow, Esq. Collier County Attorney Collier County Government Center 3301 Tamiami Trail, East Harmon Turner Building, 8th Floor Naples, Florida 34112 RE: Amendment to Town of Ave Maria Tri-Party Developer Contribution Agreement Dear Jeff, Enclosed please find three originals of the Amendment that have been executed by Ave Maria Development, LLLP (the "Developer") and the District School Board of Collier County, Florida. Please process these original documents for consideration by the Board of Collier County Commissioners at the next available regular meeting. In the event that the Amendment is approved and executed by the Board of Collier County Commissioners, please keep one original Amendment for the County's records and return the other two original Amendments to my office. The School District will return one original Amendment to the Developer, record the Amendment and provide a certified recorded copy to all parties. If you have any questions or comments, please call me directly at 377-0245. Thanks, ~/J1)MtA6~ Thomas G. Eastman COLLIER COUNTY CHARACTER EOUCATlON TRAITS Citizenship Cooperation Honesty Kindness Patriotism Perseverance Respect Re:r----'L'.,".. ",,_u ---"Tal Packet Page -702- Tolerance . 2/8/2011 Item 16.K.4. REGULAR BOARD MEETING JANUARY 18, 2011 - 4:30 P.M. - BOARD ROOM DR. MARTIN LUTHER KING, JR. ADMINIsrRATIVE CENTER January 18, 2011 - Regular Board Meeting Agenda Item #33 IitIA Amendment to Town of Ave Maria Tri-Party Developer Contribution Agreement Florida Statute 1001.42 Federal Statute School Board Policy Item Tvoe Action Requested Action Tvoe -1 Executive Summary On October 23, 2007, the District School Board of Collier County, Florida (the "District"), the Board of County Commissioners of Collier County, Florida (the "County") and Ave Maria Development, LLLP (the "Developer") entered into the Town of Ave Maria Tri-Party Developer Contribution Agreement (the "Agreement"). In accordance with the terms and conditions of the Agreement, the Developer conveyed to the District a 46 acre parcel of land located in the Town of Ave Maria that is to be used by the District as a future elementary and middle school site (the "Dedicated Land"). In exchange for the conveyance of the Dedicated Land to the District, the County and the District granted and issued to Developer an Impact Fee Credit. In accordance with the County's 2007 Impact Fee Ordinance, Section 7 of the Agreement provides that the duration and availability of the Impact Fee Credit shall not exceed a period of five (5) years from the date of the Agreement and is, therefore, set to expire on October 22, 2012. This year, however, the County amended and revised its Impact Fee Ordinance to allow impact fee credits to remain active and valid in perpetuity until used or assigned by a developer. The Amendment to Agreement alters the Agreement so that the Impact Fee Credit will not expire on October 22, 2012, but instead will now be active and valid in perpetuity until it is used or assigned by the Developer in accordance with the provisions of the County's recently revised Impact Fee Ordinance. Except for change in the expiration date of the Impact Fee Credit, all other terms and conditions contained in the Agreement shall remain in full force and effect. Leaal ADDroval Packet Page -703- 2/8/2011 Item 16.K.4. REGULAR BOARD MEETING JANUARY 18, 2011 - 4:30 P.M. - BOARD ROOM DR. MARTIN LUTHER KING, JR. ADMINISTRATIVE CENTER Amendment to Town of Ave Maria Tri-Party Developer Contribution Agreement has been approved by Jon Fishbane, School Board Attomey/District General Counsel. . . Recommendation Staff recommends approval of Amendment to Town of Ave Maria Tri-Party Developer Contribution Agreement. District Mission/Belief We believe that we must base all of our decisions on evidence and the best interest of students. Contact Thomas G. Eastman, Director of Interagency, Real Property and Regulatory Coordination, 377-0267. Financial Imoact None Budgeted N/A Recurrina Costs N/A Attachment: AmendTownAveMaria.odf Packet Page -704- 2/8/2011 Item 16.K.4. 'v~ TOWN OF AVE MARIA TRI-PARTY DEVELOPER CONTRIBUTION AGREEMENT THIS TRI-PARTY DEVELOPER CONTRIBUTION AGREEMENT (the "Agreement") is made and entered into this 2-~ ofC>d;-o~~ ,2007, by and between AVE MARIA DEVELOPMENT, LLLP, a Florida Limited Liability Limited Partnership ("Ave Maria" or "Developer"), THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA AS THE GOVERNING BODY OF COLLIER COUNTY (the "County"), and ruE SCHOOL DISTRICT OF COLLIER COUNTY, FLORIDA (the "District"). All capitalized terms not defined herein shall have the same meaning as set forth in the Collier County Consolidated Impact Fee Ordinance, Ordinance No. 2001-13 (the "Impact Fee Ordinance"), codified as Chapter 74 of the Collier County Code of Laws and Ordinances. RECITALS: WHEREAS, Section adopted on June 14,2005 provi Ave Maria to the School District access to the "loop" road and will pr the surrounding neighborhoods"; and 4, 2005, the County adopted (I) ich approved a Development . 2 05-234A, which designated the Town of Ave Maria nt s described and graphically f-, ~ a ~ velopment Order No. 05-01 . lite site of at least 46 acres within ~ school. The site will have direct oth vehicular and pedestrian, from WHEREAS, Section 8B of the Conclusions of Law of Development Order No. 05-01 requires the dedication of a high school site outside of the Town of Ave Maria, which site and dedication will be the subject of a separate, future Tri-Party Agreement after the exact location of the site has been determined; and WHEREAS, Ave Maria, as Developer, in exchange for a credit against Educational Impact Fees as further set forth herein, agrees to transfer the real property deseribed in Exhibit "B" ("Dedieated Land") attaehed herewith, to the District for an elementary and middle school site. WITNESSETH NOW THEREFORE, in consideration of Ten Dollars ($10,00) and other good and Packet Page -705- --n_ ---.. "'==r: --..... ~ co =::<1 - Q;;II - ... ~ -= ;;II ... 8 .. -= -"" -co :::= -- ~'" =: _ ..e:. -.. <:::> _~'-O - =- c.:=> ~Q (,.,.,,) -. _ <::r"-. ::::=: ~ = :J___~, ... co _ .. - .. Jill'; ...'" ...... !-'E f'...) ... co '-0 ~-CX> """" ~l:!~ n:::~ -... .. - .. .. .. 2 c::> 3e _ '-0 ... - ::2= ... .. "" ""- ::::.:: .. -- ~-- ~oc. ~~~ O 2/8/2011 Item 16.K.4. ~: ~l~~ fij: U4lU valuable consideration exchanged amongst the parties, and in consideration of the mutual promises, commitments and covenants contained herein, the parties agree as follows: I. The parties agree and acknowledge that the recitals above are true and correct and that it is the intent of the parties by entering into this Agreement to create a legally binding contract whereby Developer do'nates and conveys land for an elementary and middle school site to the District and the County grants and issues to Ave Maria the Impact Fee Credit. 2. The District shall have a Due Diligence Period of Sixty Five (65) days from the date that this Agreement is fully executed to conduct feasibility studies, environmental assessments, surveys and any other study or report deemed necessary to evaluate the site and determine if it meets all requirements for the construction of an elementary and middle schooL - 3. It is understood that the site will have direct and permanent access from the "loop" road known as Anthem Parkway, pedestrian access, off site storm water management, water and sewer connection availability, and no wetland or environmental impediments or mitigation costs associated with the utilizat' ite. :\:ER COt.;: 4. In accordance wi w, the t !/& Dedicated Land from Coastal Services, Inc. and e state certified appraisers, to sta of onsi consideration of $2,745,000' th averag two a prai of credit available to Develo r t1 the Dedicated Land to Distri t. (j 5. After conduc .~ 'ts Due Diligence, acceptability of the Dedicat d described in acceptable, Developer will co 'd land by W Dedicated Land as prepayment . on of the imposed by the County in connectio iili'if, by the parties that the Dedication shall oc - re November 16, 2007. In the event that the District determines within the Due Diligence Period that that the Dedicated Land is not acceptable, the parties acknowledge and agreed that a document voiding this Agreement shall be executed and recorded in the public records of Collier County, Florida. ined two (2) appraisals for the Realty Resources, independent rati n for the school site. The shall constitute the amount p ct Fees upon conveyance of 6.. Developer agrees that it will not submit its own alternative school impact fee calculation, but instead will abide by the duly adopted school impact fees in effect at the time of Building Pennit applications. 7. The duration of, and availability of credits pursuant to, this Agreement shall not be for a period in excess of five (5) years from the date of this Agreement. 8. The Impact Fee Credit identified herein shall run with the Development. The Impact Fee Credit shall be reduced and exhausted on a unit by unit basis or otherwise expire in accordance with the terms of this Agreement. The Impact Fee Credit set forth herein shall not 2 Packet Page -706- 2/8/2011 Item 16.K.4. OR: 4298 PG: 0421 offset, diminish or redu~ any other charges, fees or other educational impact fees for which Developer, its successors and assigns, are responsible in connection with the development of their other lands. It shall be Developer's, or its successors' and assigns', obligation to notifY the County that the Impact Fee Credit is available each and every time that educational impact fees may become due. 9. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the parties to this Agreement. Developer may freely assign or transfer the Impact Fee Credit to successor owners of all or part of the Development as provided for in the Ordinance, 10. Developer acknowledges and agrees that the failure of this Agreement to address any pennit, condition, tenn or restriction shall not relieve either Developer, or its successors or assigns, of the necessity of complying with any law, ordinance, rule or regulation governing applicable pennitting requirements, conditions, terms or restrictions. I I. At County's option, an ination and audit of compliance may be perfonned by the County to detennin ~ erfonnance under, this Agreement, including whether or not there h monstrate ith compliance with the terms of this Agreement and to review ee of available Impa e Credit. enac d fier the execution of this art he parties' compliance with nt ha be modified or revoked as reflects the intent of this 12. In the event sta Agreement, which are appli the tenns of this Agreement is necessary to comply wi Agreement. r ~ '(<:\ -...; \ .0 f 13. Tbis Agreement t'o1 under the laws of the State 0 Florida. The parties shall attempt spute concerning this Agreement through negotiation between authon. ese efforts are not successful, and there remains a dispute under this Agreem shall first use the County's then current Alternative Dispute Resolution Procedure. Following the conclusion of this procedure, either party may then file an action in the Circuit Court of Collier County, which shall be the exclusive venue with respect to any disputes arising out of this Agreement. Tbis Agreement shall not be construed or characterized as a development agreement under the Florida Local Government Agreement Act. 14. Tbis Agreement shall be recorded by the County in the Official Records of Collier County, Florida, within fourteen (14) days after the County enters into this Agreement. Developer shall pay all costs of recording this Agreement. 15. Tbis Agreement is the entire agreement between the parties, and supersedes all previous oral and written representations, agreements and understandings between the parties, including, but not limited to, the correspondence dated February 9, 2005, between Developer's counsel, George L. Varnadoe and Alvah Hardy, II, Executive Director of Facilities Management, which correspondence is considered by all parties to be mere proposals only and of no legal 3 Packet Page -707- 0, 2/8/2011 Item 16.K.4. K: q,~~ fij: Uqll equitable force or effect. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their appropriate officials, as of the date first above written. BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY FLORIDA (. By'JA>~'~ CT OF COLLIER DOVan, Chairman By:: '4; i~ Attest: Its: Tl-I~Y"m ~0'Y\'lo\tA.<::\.-€N..t Approved as to fonn and ~~' Ricbard Ithers School Board Attorney - 4 Packet Page -708- 2/8/2011 Item 16.K.4. OR: 4298 PG: 0423 A VE MARlA DEVELOPMENT, LLLP a Florida limited liability limited partnership N, ~ Signa' Ut'\lJ ('~(fY'(\Q/}-- ~ f\l ( Tfvf((\O.J1 Printed Name -;;;I: By: u;, . Paul Marinelli Its President Signature .D/~ L Printed Name me this C, ye day of .' nt of Ave Maria Development, SEAL SUSAN L. MATURO Printed Name Q (1- {^ 0 My Commission Expires: ~ Approved as to form and legal sufficiency: George 1. Varnadoe, Esquire J'''' s.-t_ rJ""'. Mycc.mo->OD3QI'. ....J.l e_o-.,5,2aoe 5 Packet Page -709- EXHIBIT A 2/8/2011 Item 16.K.4. OR: 4298 PG: 0424 - , .', a ~ g . ,I - - - ~ - . ,.., - .... , - J j I ~ _I.. _,_. I U . ,1. u L_ r i u i n u . . = . i -. r , _.- :..- . . . . - ~ o --...--- ----- DIU LAND tal: MIIMlINIY ;-..- a- M __ . .~MCIUn' --- II::.... -- --- DIL "".I.L. ROAD -... ....... ...... moO ..... ..... -- ..... ._"" - -......--.- ~ ...IUIMIW..... -"MU .. lIlLMWAtaIU'lD1'lClltMll ~""l""'''''''':-- lOMM . ....- - l~~"f:"~t I , MAP H ..,. ~f""'PLAlI TOWN OF AVE IIAIlIA PlEl'AltlDPOIt:tllWTDMf DIWRJl.I --IT, UJJI U-'" a.. 4:~ ii ~I.' _.- .- -.--=--=---- --- .... ," ": ~; .~.; !! Packet Page -710- 2/8/2011 Item 16.K.4. Exhibit B *** OR: 4298 PG: 0425 *t Legal Description Ave Marie Land Acquisition Commencing at the Northwest comer of Section 32, Township 47 South, Range 29 East, Collier County, Florida. Thence along the west line of said Section 32, South 00"06'58" East 950.41 feet; Thence leaving said west line North 89053 '02" East 2310. I 7 feet to the POrNT OF BEGINNING Thence North 81042'41" East 279.14 feet; Thence South 65"34'43" East 80.72 feet; Thence North 89"59'47" East 219.16 feet; Thence North 82042 '28" East 41.19 feet; Thence North 58"02'38" East 138.72 feet; Thence North 41 "09'18" East 91.38 feet; Thence North 73057'36" East 83.05 feet; Thence North 84<>:51 '58" East 305.34 feet; Thence North 86"38'43" East 343.90 fee . Thence North 87"28'42" East 503. R COu: Thence North 88046'01" East , :,vl> Thence South 00"00'00" , .07 feet; ;; Thence South 86047'52" E t 1 . Thence 79.38 feet along e 0 having a radius of 50.00 t by a chord which bears S u n Thence 838.99 feet along 1,684.00 feet through a bears North 74"07'19" West 830.3 ~ Thence North 59050'57" West CD' Thence 1,204.32 feet along the arc 0 ; t; concave south having a radius of 1,0 16.00 feet through a central angle of 67054' 57" and being subtended by a chord which bears having a radius of tended by a chord which South 8601 I '34" West 1,135.04 feet to a point on the east line of those lands as described in Official Records Book 4109, pages 3337-3376, of the public records ofCoIlier County, Florida; Thence along said east line North 000 00'00" West 847.42 feet to the POINT OF BEGINNING. Packet Page -711-