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Agenda 04/13/2010 Item #16K 1 Agenda Item No. 16K1 April 13, 2010 Page 1 of 10 EXECUTIVE SUMMARY Recommendation to authorize the County Attorney to file a lawsuit, on behalf of the Collier County Board of County Commissioners, against the Collier County Housing Development Corporation, now known as the Housing Development Corporation of Southwest Florida, for failure to comply with the grant agreement to develop Cirrus Pointe. OBJECTIVE: That the Board of County Commissioners (Board) authorizes the County Attorney to file a lawsuit in the 20'" Judicial Circuit to recapture HUD grant funding provided to the Collier County Housing Development Corporation, now known as the Housing Development Corporation of Southwest Florida ("HDCSWFL") pursuant to the grant agreement dated December 14, 2005 and amended on July 1,2007. CONSIDERATIONS: Collier County Department of Housing and Human Services awarded a Home Investment Partnership Program (HOME) Grant to HDCSWFL in the amount of $320,000 for land acquisition and the development of affordable housing units in Collier County. The agreement was effective on December 14, 2005 and amended on July I, 2007 to provide additional time for completion. The date for final completion was December 31, 2009. To date, HDCSWFL has failed to materially comply with the terms of the agreement. HDCSWFL received $320,000 in grant funds from Collier County which was used for land acquisition. No homes were ever built. Section VI (A) of the grant agreement provides: "All HOME funds are subject to repayment in the event the PROJECT does not meet the Project Requirements as outlined above." In the event the subreeipient fails to perform, the agreement provides financial protection to Collier County by requiring repayment of funds. Furthermore, the subrecipient secured a mortgage against the subject property. This mortgage is recorded in Official Records Book 4137 Page 0159 of the public records of Collier County. At its February 9, 2010 regular meeting, the Board authorized the Department of Housing and Human Services to work with the County Attorney to take all efforts to recapture the grant funding provided to the Collier County Housing Development Corporation to develop Cirrus Pointe. Efforts to resolve this issue with the subrecipient have been unsuccessful, and the County Attorney is seeking the Board's authorization to file the lawsuit. FISCAL IMPACT: Filing fees and service are approximately $400, Legal costs should be minor. The case will be handled by the County Attorney's Office. GROWTH MANAGEMENT IMPACT: None. LEGAL CONSIDERATIONS: This item and related contract documents have been reviewed by the County Attorney's Office. Based on information available to date, Collier County Housing Development Corporation is in breach of the grant agreement with Collier County. HUD regulations require the County to attempt to recapture the funds for material non- compliance. This item is legally sufficient for Board action. - STW Agenda Item No. 16K1 April 13, 2010 Page 2 of 10 RECOMMENDATION: That the Board of County Commissioners authorizes the County Attorney to file a lawsuit in the 20th Judicial Circuit to recapture HUD grant funding provided to the Collier County Housing Development Corporation, now known as the Housing Development Corporation of Southwest Florida, pursuant to the grant agreement dated December 14, 2005 and amended on July 1,2007. Prepared by: Steven T. Williams, Assistant County Attorney Item Number: Item Summary: Meeting Dale: Agenda Item No. 16K1 April 13, 2010 Page 3 of 10 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS 16K1 Recommendation to authorize Ihe County Attorney 10 file a lawsuil, on behalf of the Collier County Board of County Commissioners, againsl the Collier County Housing Development Corporation, now known as the Housing Development Corporation of Southwest Florida, for failure to comply with the granl agreement to develop Cirrus Pointe. 4/13/2010 g:OO:OO AM Date Prepared By Steven Williams County Attorney Assistant County Attorney County Attorney 3/30/201011 :58:40 AM Date Approved By Jeff Klatzkow County Attorney 3/30/2010 2: 05 PM Date Approved By Steven Williams County Attorney Assistant County Attorney County Attorney 3/30/20102:12 PM Date Approved By OMS Coordinator County Manager's Office Office of Management & Budget 4/1/20109:20 AM Date Approved By Randy Greenwald Office of Management & Budget ManagemenUBudget Analyst Office of Management & Budget 4/1/2010 11:08AM Approved By Date Leo E. Ochs, Jr. County Managers Office County Manager County Managers Office 4/4/20102:01 PM Agenda Item No. 16K1 April 13, 2010 Page 4 of 10 Office of the Connty Attorney Deputy Couaty A.ttamq &olt R. Teach hsiJIt2t1t CoUDly Alto.meys Collccn M. Greene .Jclmiler B. Wlrile Ste\'en T. \\'illiams .JefT E. Wright Rohcn ]I;, 7..adL1I)' SeaioD au..fj Heidi F. Aihton-Cicko' Jacqueline W. Hubhard' . !loan! Catif...J City, County il.nd Local GO\lcnUllcnt l..-aw Jeffrey A. Klatzkow County Attorney March 29, 2010 Collier County Housing Development Corporation 4779 Enterprise Avenue Naples, FL 34104 ATIN: Kathy Patterson Via Certified Mail, Return Receipt Requested Collier County Housing Development Corporation c/o W. Jeffrey Cecil, Registered Agent 580 I Pelican Bay Boulevard, Suite 300 Naples, FL 34] 08 Housing Development Corporation of SW Florida, Inc. c/o Susan Golden, Registered Agent 2264 Clipper Way Naples, FL 34104 RE: Agreement with Collier County-Cirrus Pointe Notice of Termination and Default TO WHOM IT MA Y CONCERN: Please be advised that notice is being provided to you that on or before December 31, 2009, you were to acquire land and develop affordable housing units with eligible beneficiaries in place. Despite receiving $320,000 in grant funds from Collier County, you have failed to materially comply with both the original Agreement dated December 14, 2005 and an Amendment thereto on July I, 2007. It is the understanding of this office that you have not even broken ground on this project. The Agreement and its Amendment are hereby temlinated and you are declared in default. Although there is no likelihood of compliance, tbe County is providing you a 5-day Notice to comply with all terms in your Agreement(s) with Collier County as to the Cirrus Pointe project. If you are unable to bring the project into compliance pursuant to Section VI.A of the Agreement, please return the grant funds of $320,000 to my office within five (5) days. The 3301 East Tamiami Trail - Naples, Florida 34112-4902 - Phone (239) 252-8400 - Facsimile (239) 252-6300 Agenda Item No. 16K1 April 13, 2010 Page 5 of 10 check is to be made payable to Collier County Board of County Commissioners. Concurrent with this demand for full compliance or reimbursement of all funds, the County elects to exercise its rights under Section lV.C. of the Agreements. The County hereby requests access to all XVTII project files in this matter. Please deliver each and every document in your possession concerning the Cirrus Pointe project to my office ~ithin ten (10) days of the date of this letter. Please deliver all documents related to the distribution of the $320,000 in county funds, if not maintained as cash on hand, including any documents related to the closing held on real property located at: All of Lot 103, Naples Groves and Truck Company's Little Farms No.2, according to the Plat thereof, as recorded in Plat Book I at Page 27-A of the Public Records of Collier County, Florida within five (5) days of receipt of this demand. Your failure to either comply with the Agreement via performance or reimbursement of county funds wiIl result in immediate action being taken in the Collier County Circuit Court. The County will take all measures necessary, both legal and equitable, to protect its substantial interest in this matter. Please do not hesitate to contact me with any questions you may have in this matter. Sincerely, OFFICE OF THE COl.rNTY ATTORNEY ~7.L5~ Steven T. Williams Assistant County Attorney CP\ I 0-000-00 116\5 3301 East Tamiami Trail- Naples. Florida 34112-4902 - Phone (239) 252-8400 - Facsimile (239) 252-6300 Agenda Item No. 16K1 April 13, 2010 Page 6 of 10 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CIVIL ACTION COLLIER COUNTY, FLORIDA, a political subdivision of the State of Florida, Plaintiff, CASE NO.: 10- v. COLLIER COUNTY HOUSING DEVELOPMENT CORPORATION, a Florida not-for profit corporation; and HOUSING DEVELOPMENT CORPORATION OF SOUTHWEST FLORIDA, a Florida not-for-profit Corporation, as successor corporation Defendants. COMPLAINT COMES NOW, Plaintiff, COLLIER COUNTY, by and through its undersigned counsel, and sues Defendants, COLLIER COUNTY HOUSING DEVELOPMENT CORPORATION ("CCHDC") and HOUSING DEVELOPMENT CORPORA nON OF SOUTHWEST FLORIDA ("HDCSWFL"). JURISDICTION 1. Jurisdiction is properly before the Circuit Court of the Twentieth Judicial Circuit in Collier County, Florida. The amount at issue exceeds $15,000.00. VENUE 2. Venue is proper in Collier County, Florida pursuant to 947.011, F.S. 3. Defendant, CCHDC, was a Florida not-for-profit corporation authorized and doing business in the City of Naples, Collier County, Florida from 2003 to 2009. lof5 Agenda Ilem No. 16K1 April 13, 2010 Page 7 of 10 4. On January 23, 2009, CCHDC submitted a name change to the Florida Secretary of State's Office and changed its name to HOUSING DEVELOPMENT CORPORATION OF SOUTHWEST FLORIDA, ("HDCSWFL"). (See Exhibit "A"). 5. HDCSWFL is a private Florida non-profit corporation located at 4779 Enterprise Avenue, Naples, Florida 34104. 6. Plaintiff, COLLIER COUNTY, is a political subdivision of the State of Florida. 7. On December 14, 2005, Plaintiff, COLLIER COUNTY, entered into a written contract, ("Agreement"), with Defendant, CCHDC (see attached Exhibit "B"). 8. Pursuant to the terms of Exhibit "B", Defendant, CCHDC, was awarded $320,000 in grant funds by COLLIER COUNTY for land acquisition and the development of affordable housing units in the county. 9. The term of the original agreement between COLLIER COUNTY and CCHDC called for one hundred percent (100%) project completion by May 30, 2007. 10. On July I, 2007, Plaintiff, COLLIER COUNTY, and Defendant, CCHDC, entered into "Amended Agreement #1 Between Collier County and Collier County Housing Development Corporation" (see attached Exhibit "C"). II. The terms of Exhibit "c" are nearly identical to the terms of Exhibit "B" with only the project deadlines of Section II being lengthened to December 31, 2009. 12. During the term of Exhibit "C", Defendant, CCHDC, changed its name to HDCSWFL. COUNT I: BREACH OF CONTRACT 13. Plaintiff, COLLIER COUNTY, hereby adopts and realleges Paragraphs 1 through 12 as though fully set forth herein. 20f5 Agenda Item No. 16K1 April 13, 2010 Page 8 of 10 14. Paragraph "J" of Section XIX of Amended Agreement #1 precludes the obligations of the Defendants from being delegated or assigned to others unless Co1\ier County first consents. 15. Plaintiff, COLLIER COUNTY, did not consent to Defendant's name change. 16. The terms of both the Agreement and the Amendment have expired. 17. Defendants have failed to construct a single building and have also failed to obtain qualified residents for the contemplated affordable housing units. 18 Defendants have accepted Plaintiffs funds, yet failed to comply with the conditions associated with said funds as set forth in Exhibits "B" and "C", 19. Defendants have breached the agreements with Plaintiff by failing to perform any and all portions of the agreements that call for the construction of 32 affordable housing units. 20. The only portions of the Agreements Defendants have performed involved the acquisition of certain real property. 21. Defendants have refused to return the $320,000 in grant funds to the County, despite a Notice of Termination and Default being provided to Defendants, (see attached Exhibit "D"). 22. COLLIER COUNTY has suffered damages as a result of Defendants' breach in the amount of $320,000 plus allowable interest, costs, and attorney fees. WHEREFORE, Plaintiff, COLLIER COUNTY, requests that Defendants, CCHDC and HDCSWFL, be found in breach of the Agreement with Collier County dated December 14, 2005 and of the Amendment thereto dated July I, 2007 and that damages be awarded to Collier County along with all associated costs and fees. 30f5 Agenda Item No. 16K1 April 13, 2010 Page 9 of 10 COUNT II: SPECIFIC PERFORMANCE 23. Plaintiff, COLLIER COUNTY, hereby adopts and realleges Paragraphs I through 12 as though fully set forth herein. 24. Section XVI of both the original Agreement and Amendment #1, provide that, in the event of default, the County is explicitly granted rights "compelling the AWARDEE (CCHDC) to complete the project in accordance with the terms of this amended agreement, in a court of equity." 25. Plaintiff, COLLIER COUNTY, seeks specific performance of Exhibits "B" and "C" with CCHDC and its successor, HDCSWFL. 26. Plaintiff, COLLIER COUNTY, has fully performed all of its obligations under both Exhibits "B" and "C" and did provide the $320,000 in grant funds to CCHDC on December 21, 2005 (see attached Exhibit "E"). 27. Both the original Agreement and the Amendment thereto were valid and binding, as against both Defendants, with Defendant, CCHDC, partially performing under the terms of the Agreement by acquiring real property with county funds. 28. Plaintiff has no adequate remedy at law given the unique and complex nature of the particular circumstances surrounding the federal funds used to secure the grant funds and the structure of the entities involved in the actual construction of units. 29, As evidenced by the explicit contract language allowing specific performance and Defendants' definite breach, Plaintiff is clearly entitled to specific performance, WHEREFORE, Plaintiff, COLLIER COUNTY, seeks an order against Defendants, CCHDC and HDCSWFL, compelling them to erect 32 affordable housing units and further compelling them to place qualified residents within those units. 40f5 Agenda Item No. 16K1 April 13, 2010 Page 100f10 JURY DEMAND PLAINTIFF hereby demands that this matter be tried by jury. DATED this _ day of March, 2010. OFFICE OF THE COUNTY ATTORNEY Hannon Turner Building 3301 East Tamiami Trail Naples, Florida 34112 (239) 252-8400 - Telephone (239) 252-6300 - Facsimile BY: STEVEN T. WILLIAMS, ESQUIRE Florida Bar No, 740101 ATTORNEY FOR PETITIONER CPIl 0-000-00 116114 50f5