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Agenda 04/27/2010 Item #16A 7 Agenda Item No. 16A7 April 27, 2010 Page 1 of 25 EXECUTIVE SUMMARY Recommendation that the County Manager, or his designee, forward the matter of the default of the Impact Fee Deferral Agreement between Collier County and Creative Choice Homes, XIV, Ltd. for the Heron Cove Apartments/Saddlebrook Village Phase II to the Office of the County Attorney to initiate any and all legal action including, but not limited to, lien foreclosure, if necessary OBJECTIVE: That the Board of County Commissioners direct the County Manager, or his designee, to forward the matter of the default of the Impact Fee Deferral Agreement (Deferral Agreement) between Collier County and Creative Choice Homes, XIV, Ltd. for the Heron Cove Apartments/Saddlebrook Village Phase II to the Office of the County Attorney to initiate legal action, up to and including lien foreclosure. CONSIDERATIONS: On March 7, 2003 the Board of County Commissioners entered into a Deferral Agreement (attached) with CEI/Kensington, Ltd. for the deferral of impact fees in the amount of $2,170,855.04 for 298 affordable rental units at Heron Cove Apartments/Saddlebrook Village Phase II. In accordance with the Deferral Agreement, the term of the deferral was for a period of 6 years and 9 months from the date of the agreement. Concurrent with the execution of the Agreement, a lien was placed on the subject property in the amount of the deferred impact fees as security for Collier County's interest and is still in place on the property record. On March 18,2003 a Tri-Party Agreement (attached) between Collier County, Creative Choice Homes XIV, Ltd. and The Bank: of New York Mellon Trust Company of Florida was executed. This Tri-Party Agreement provided for an Impact Fee Deposit Amount, paid by Creative Choice Homes to the Bank: of New York Mellon, to be invested in order to guarantee a yield sufficient to increase the Impact Fee Deposit Amount to the full impact fee amount deferred, by the scheduled date of December 7, 2009; these funds being held solely on the behalf of Collier County. On December 7, 2009, Collier County, requested that the amount of $2,170,855.04 be disbursed to Collier County in accordance with the executed Tri-Party Agreement, the Impact Fee Deferral Agreement and Trust Indenture, as the term of the specified Deferral Agreement had concluded. However, on December 15, 2009, Collier County received notification from the Bank: of New York Mellon that the balance of the Impact Fee Account totaled $2,127,384.42, or $43,470.62 less than the total amount of impact fees deferred and due and payable to Collier County under the terms of the executed Deferral Agreement. Funds in the amount of $2,127,384.42 have been transmitted to Collier County leaving the outstanding balance of$43,470.62. Section 2.2 of the executed Tri-Party Agreement provides the following: Agenda Item No. 16A7 April 27, 2010 Page 2 of 25 Section 2.2 Payment of the Impact Fee Amount The O'Wrler agrees and acknowledges that such Impact Fee Deposit shall be nonrefundable to the O'Wrler. The O'Wrler agrees and acknowledges that such Impact Fee Deposit Amount and all investment income thereon will be held solely for the benefit of the County. The Owner agrees that if the moneys in the Impact Fee Account are insufficient to pay the amounts owed under the Deferral Agreement then the Owner shall be responsible for such insufficiency and the O'Wrler further agrees that the County's rights and remedies under the Deferral Agreement shall apply with respect to the Owner's obligation to pay the insufficiency. On January 20, 2010, by way of Certified Mail, Creative Choice Homes, XIV, Ltd. was notified that they are in default of the Impact Fee Deferral Agreement. In accordance with the remedy provisions of the said Agreement the correspondence outlined that payment be remitted to the County, totaling $43,470.62, within 90 days of the date of the notice. In the event the default is not cured within 90 days after mailing written notice the County may bring a civil action to enforce the Impact Fee Deferral Agreement. Additionally, a delinquency fee equal to 10% of the total Impact Fee owed shall be assessed. Once delinquent, the total Impact Fee, plus delinquency fee, shall bear interest at the then applicable statutory rate for final judgments, calculated on a calendar day basis until paid in full. The 90-day period ends on April 20, 2010. To date, payment has not been received by Collier County nor has there been any communications or correspondence from or on behalf of Creative Choice Homes, XIV, Ltd. to Collier County regarding this matter. FISCAL IMPACT: The remaining balance of $43,470.62 is due and payable to Collier County and is the responsibility of the owner, Creative Choice Homes, XIV, Ltd. Upon payment, such funds would then become immediately available to provide funding for growth- related capital improvements. The fiscal impact of the original deferral to the County was the loss of the income to the impact fee trust funds for the term of the Deferral Agreement; however, the Agreement was consistent with the policies and regulations in place at that time. The failure to receive payment after the expiration of the 6 year and 9 month term jeopardizes the County's ability to provide capital improvements, necessitated by growth, in a timely manner. The fo llowing are the amounts, by impact fee type, that remain to be paid: Impact Fee Amount Community Parks $2,882.71 Correctional Facilities 704.03 Emergency Medical Services 554.96 Library 1,277.01 Regional Parks 2,876.74 Road 10,806.87 Agenda Item No. 16A7 April 27,2010 Page 3 of 25 School 4,935.00 Sewer 10,001.79 Water 9,431.51 TOTAL $43,470.62 Filing and other associated fees will be approximately $1,000. As provided in the Deferral Agreement, the County will seek to recover all costs in initiating and pursuing this suit. The litigation relative to Saddlebrook I resulted in attorney's fees of $5,000 being paid to the county from the owner. GROWTH MANAGEMENT IMPACT: Objective 1.2 of the Capital Improvement Element (CIE) of the Collier County Growth Management Plan (GMP) states: "Future development will bear a proportionate cost of facility improvements necessitated by growth. " Additionally, Policy 1.4 of the Housing Element of the Collier County Growth Management Plan states: "Collier County shall seek to distribute afJordable-worliforce housing equitably throughout the county where adequate infrastructure and services are available. Programs and strategies to encourage afJordable-worliforce housing development may include, but are not limited to, density by right within the lmmokalee Urban area and other density bonus provisions, impact fee deferrals, expedited permitting (fast tracking), public-private partnerships, providing technical assistance and intergovernmental coordination. " Impact Fees generate funds to be expended for capital improvements to public facilities necessitated by growth. The deferral of impact fees for the subject property for the initial 6 year and 9 month term was consistent with the Growth Management Plan and the impact fee regulations in place at the time of execution of the Deferral Agreement. However, failure to pay the impact fees that are now due and payable has a direct impact on each of the impact fee trust funds that originally provided a deferral of impact fees. LEGAL CONSIDERATIONS: As of April 20, 2010, this matter may be timely filed in the Collier Circuit Court to enforce the Agreements. Upon recommendation of the Board of County Commissioners, a lawsuit will be drafted and filed with the Court. STW RECOMMENDATION: Recommendation that the Board of County Commissioners direct the County Manager, or his designee, to forward the matter of the default of the Impact Fee Deferral Agreement between Collier County and Creative Choice Homes, XIV, Ltd., for the Heron Cove Apartments/Saddlebrook Village Phase II, to the Office of the County Attorney to initiate legal action, up to and including lien foreclosure. Prepared Bv: Amy Patterson, Impact Fee and Economic Development Manager, CDES Item Number: Item Summary: Meeting Date: Agenda Item No. 16A7 April 27, 2010 Page 4 of 25 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS 16A7 Recommendation that the County Manager, or his designee, forward the matter of the default of the Impact Fee Deferral Agreement between Collier County and Creative Choice Homes, XIV, Ltd. for the Heron Cove Apartments/Saddlebrook Village Phase II to the Office of the County Attorney to initiate any and all legal action including, but not limited to, lien foreclosure, if necessary. 4/27/20109:00:00 AM Prepared By Amy Patterson Community Development & Environmental Services Manager -Impact Fees & EDC Date Business Management & Budget Office 4/8/201011:32:11 AM Approved By Nick Casalanguida Transportation Division Director - Transportation Planning Date Transportation Planning 4/9/20107:54 AM Approved By Judy Puig Community Development & Environmental Services Operations Analyst Community Development & Environmental Services Oate 419/2010 1 :43 PM Approved By Steven Williams County Attorney Assistant County Attorney Date County Attorney 4/12/201010:25 AM Approved By OMB Coordinator County Manager's Office Date Office of Management & Budget 4/12/20102:38 PM Approved By Leo E. Ochs, Jr. County Managers Office County Manager Date County Managers Office 4/17/20103:36 PM . . ~~~cm~~~\I,~! n 13/21/2"1 It It:.'. HI. .. 1IICIi,,5 DC ra 51.H COPIII 11." ........ ~ ...... c. WIIMe AII't. c.-. 0,. AII'1. SJlI ,..... TrII.... III.... n. 34111 .Ita: rtMW um . .11. nnlOr"ea ."': .... lIIlI(tt3-UJlt ...... .- fill' nca,... AGREEMENT FOR 100% DEFERRAL OF COLLIER COUNTY IMPACf FEES FOR MULTI-FAMILY AFFORDABLE HOUSING This Agreement Cor the Deferral ofImpact Fees is entered into this )-11, day of .Jj Q r L t. 200.3, by and between Collier County, a political subdivision oCthe State of Florida, through its Camily, rental dwelling units which WHEREAS, lohn F. Weir, Senior . ent of Creative Choice Homes, XIV, Ltd.; and WHEREAS, Creative Choice Homes, XIV, Ltd., has applied for a deferral of impact fees as.required by the Impact Fee Ordinance for its Saddlebrook Village, Phase 2, hereinafter referred to as "PROJECT, tt and a copy of said application is on file in the Financial Administration & Housing Department; and WHEREAS, the County Manager, or his designee. has reviewed the OWNER'S application for the PROJECT and has found that it complies with the requirements for an - 10f8 OR: >>~aPf$1t~!tb Page 6 of 25 affordable houling deferral of multi-family impact fees as required by the Impact Fee Ordinance; and WHEREAS. the COUNTY desires to issue an impact fee deferral in the amount of Two Million One Hundred Seventy Thousand Eight Hundred Fifty-Five and 041100 (2. I 70,8SS.04} for six years and nine months from the date of the execution of this agreement for the PROJECT; and \.- WHEREAS. the Impact Fee Ordinance requires that the OWNER enter into an Agreement with the COUNTY; and impact fees for OWNER in h ~ i~ Recitals and other good and y mutually acknowledged, the l. The foregoing Recitals are true and correct and are incorporated by reference herein. 2. LEGAL DESCRIPTION. The PROJECT's legal description for the location of the dwelling units (the "Dwelling Units") that will have their impact fees deferred is attached hereto u Exhibit "A," and the PROJECrs site plan is attached as Exhibit "B," and both Exhibits are incorporated by reference herein. 3. TERM. The OWNER agrees that the Dwelling Units shall remain affordable and shall be offered for rent in accordance with the standards set fonh in the Impact Fee Ordinance for a minimum term of fifteen (IS) years commencing from the date a cenificate of occupancy is issued for a particular Dwelling Unit; and that the term of the requirement to pay the PROJECT's 20f8 OR: >>4~~~,i~,~6 Page 7 of 25 impact fees will be deferred for six (6) years and nine months from the date of the impact fees being due and payable. 4. REPRESENTA nONS AND WARRANTIES, The OWNER represents and warrant. the following: A. Each Dwelling Unit will. during the term of the Agreement, be the permanent residence of a qualifying occupant/tenant. B. At the commencement of any leasehold and throughout the duration thereof: the households renting Dwelling Units must have a very low or low C. PAYMENT. If OWNER d then re-rents that Dwelling only to persons or households Ordinance increases by more than forty percent (400fc.) above the maximum low income level described in the Impact Fee Ordinance, then the per unit deferred impact fee on the non- compliant unit shall become immediately due and payable by OWNER or, in the alternative. the OWNER shall have ninety (90) days to comply with the Affordable Housing guidelines set forth in the Impact Fee Ordinance. Assuming the OWNER has not been able to comply with the guidelines, upon the discontinuance of use of a Dwelling Unit as aff'ordable housing. or six years and nine months from the date such impact fees are deferred, whichever occurs tirst, the impact fees deferred shall be immediately repaid to the COUNTY. OWNER agn:es that even though the impact fees may have been repaid to the COUNTY. the OWNER will continue to utilize the - 30f8 OR: m~cPGZn ~598A7 April 27, 2010 Page 8 of 25 Dwelling Units for affordable housing for at least fifteen (15) years from the date the first certificate of occupancy was issued for a Dwelling Unit. 6. ANNUAL REPORT. Annually, OWNER of the Dwelling Unit shall provide to the Financial Administration & Housing Department an Affidavit attesting to compliance with the affordable housing qualification criteria and standards set forth in the Impact Fee Ordinance. Said Affidavit must be filed with the County Manager and is due within thirty (30) days of the anniversary date of the issuance of the first dwelling unit's cenificate of occupancy. Any Dwelling Units monitored by the Florida Housing Finance Corporation or similarly monitored by any other County Manager. 7. LIEN. 0 Seventy Thousand Eight property and Dwelling Units with the requirements of this that all of the COUNTY'S lien rights and any other interests arising under this Agreement are to be considered junior, inferior, and subordinate to each first mortgage on the PROJECT. Except as elsewhere noted in this Agreement, such lien shall be superior and paramount to the interest in ihe Dwelling Unit of any owner, lessee, tenant, mortgages, or other person except that this lien shall be on parity with any lien for County taxes. 8. RELEASE OF LIEN. Upon satisfactory completion of this Agreement's requirements, including payment of the deferred impact fees, the COUNTY shall, at the expense of the COUNTY, record any necessary documentation evidencing such payment, including but not limited to, a releue of lien. 40r8 OR: m(dW~~ill~~6 Page 9 of 25 9. BINDING EFFECT. This Agreement shall be binding upon the Parties to this Agreement. their heirs. successors, and assigns, In the case of sale or transfer by gift of any Dwelling Unit. the original OWNER shall remain liable for the impact fees deferred until said impact fees are paid in full. 10. RECORDING. This Agreement shall be recorded by OWNER at the expense of OWNER in the Official Records of Collier County, Florida within sixty (60) days after execution of this Asreement by the County Manager. 11. DEFAULT. OWNER shall be in default of this Agreement: A. of mailing of B. if 0 criteria in the of written noti C. in default. 12. REMEDIES. The following remedies are cumulative with any other right or remedy available to the COUNTY: A. Should the OWNER of the property: I) fail to comply with the said qualification criteria at any time during the fifteen (IS) year term; or 2) violate any provisions of this Agreement, then the dollar amount of impact fees deferred shall be paid in full by OWNER to the County within thirty (30) days of written notification of said violation. ,,~ Sor8 - '. OR: mfd1t~~,!~~6 Page 1d'~ 25 B. Should the OWNER otherwise be in default of this Agreement, and the default is not cured within ninety (90) days after mailing written notice to the OWNER, the COUNTY may bring a civil action to enforce the Agreement. C. In additio~ the lien may be foreclosed, or otherwise enforced by the COUNTY, by action or suit in equity including the foreclosure of a mortgage on real property. The COUNTY shall be entitled to recover all fees and costs, including attorney's fees, plus interest at the statutory rate for judgments calculated on a calendar day basis until paid. (2) Witnesses: rrat shall likewise be reduced if and beyond the amount of this d IN WITNESS WH reement on the date and WTS I si : Print Name~ -h y,," .5: I WTS 2 sip: W Print Name S"A-J4 r e:-tS '.I . )1, i'"1 AM ~GL-r- By: ~ j~ 1~ lohn Weir, Senior Vice President of Creative Choice Homes XIV, Inc., its General Partner (CORPORATE SEAL) 60f8 " OR: 3'!4t~~11~9A~~ Page 11 of 25 S1 ATE OF FLOR1QA '" ~ . COUNTY OF ~ l..J.l a (l/j S!Eresoina Agreement wu acknowledged before me this :J- day of A,{ a 1 ~ it...- 200 John F. Weir, as Senior Vice President of Creative Choice Homes, XIV, Inc., the rat Partner of Creative Choice Homes XIV, Ltd.. He is personally Imnwn t~~ or uced (type of identification) as identification. At~A_ owledgment +r I {tLl "r < C a l n...-<..: Name of Acknowledger Typed, Printed or Stamped _. 70r8 .. OR: 3aMa~I~!tb Page 12 of 25 BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORID~ BY:~~~ ~ 1 S V. MUDD. COUNTY MANAGER Patrick G. White ~ Assistant County Atto 80f8 Exhibit "A" Agenda Item No. 16A7 April 27, 2010 :13 of 25 LEGAl. DESCRlPnON Ll'tfG IN SECTION 34. TOWNSHIP 4i SOU'TH, RANGE 26 COWER COUNTY FlORIM. (PROPOSED SAODLEBROOIC PHASE twO) EAST, A TltACt 0It "AltCtL or lMD SmMttD It lH[ STAtI OF FlDllDA, COUNTY or COlLO, LYING IN sa:t1ON J4. TOwIdMI" 41 SOUtM. IlANCr U fAST, AND M:INC IIllRf: PAR1lCUIMLY DnCIlIK) AS FOU.Oll'S: AS PMMO[O IT OWNER, 'ItIt: ll'I:S1 lit or TIC SllUnCASf I/Z or SRIlOH )4. 1UMIs.. 41 SOU1H. II'11fCt U [AST, or COWOt COUNTY. 'LlHll.., LEU TIC SOU1H 10' ftlR o.wtS IllUI.WlIlO (stAl[ ROM 14) 100.00 FOOT IIIGHT -Of' _.Y NlD tHE [A$1121 FUT M YMr SAID wrST 'II ANI) Las MID hCtPT TIC Il"'tIISfArt 15 (1-15) (lTArt llOAO 1ftI. U) IIlGH1-W-lMY OIlJ,__ STAlt or n~ ~NlTI<<NT or Jlt.INSI'OIITATION S[CtlOII 1)175-2401 Slt[[T . or 10: IEINC 110M PIoII~1' DnatlIEO AS 1'OU.0lfSl eoMlIOClHQ Al TIt[ SllUfMII[SJ COIIlCII or 1NE SOUttCASt CllMItII (111/4) " SAIO Sf:C'/1OIt .34: THEICt ALOI5 nt[ W[ST LIlE 01 lH[ saunGST GlMIltTtR or SAID 5[C11IlH 3.. IU1lf~4'2rE.. '011 50.00 ruT TO TIC HlIInH "GMT or .., or DoWIS 8OUt.lWlIIO IlLSO IEING TIt[ SOU1JCAST CllIINEll or "AU! SPtIIHC ~ DN[ AS ItU1IlIDED IN 'lAT lIOlIW It ~ 'I -13 01 nE clfflCAL IltCCllOS OF COI.l.IEIt tOUNTT , NCI TIC I'QNf OF 1l'C01IINNG: .' TIf[HC[ CCMNll ALONe 1IC lIUT UI (5[1/4). N.GO',4',rt I'OA 2.5'4.54 ruT TO 'IIC MOItTMwUT COIlICIt or MID SRTOIN J4, ALSO .0Ne TII[ SOU1tC1I\. Y IlIGHT Dr' ., 13) ,[It l'lIE STATE Of' FLOIltlM. OEI'AImmfT or fIWCSl'OInA 10 tHENCE ""ONG SAID IlIGHf 1IOCE ALl_ .. RICHT fNDICE LtA'II1lO II\D 1ICNCE ........)4..... )7 TMENCr N.44")$.34..... rot! 41 IHDCE S.4S"24.tr.... 1 .US FttT TO Tl1ENCt SOUTMlI $I. II MIlIUS or '1.00 lIlttICH lIrNlS S.Il',. rw. ncNCt 1.OO'24'2rw. ,0It TtCNCt 1.14'33'I..r.. _ fHtHCr: s.00'4rsS'w_ ,fJIt ftCNC[ ALCIlIO 1M[ I'OIHI or ItElIllNIIIG. COHtNHIIIC ....fl4 5 I'AllCtL Sul..'Etf TO UHIIlCOR<<O, WM'ItN NtO . 'P IrNIINGS NIt &\SED ON Tit[ WIEST l ~ SOUTH. IWlCt " EAST. COllQ COUNTY. IIw.\ ~. 1<<:. WfO IUlMYOlIS NlO ~ 101O IlOIITM NOMnHClt DRtI[ SUITt no HAPl.ES, n.aAIDt\ 34104 (141) '.'-I~'.lI b.ltr. O'/11.la, .HOT Yam uIii he na.,.en. .... tMI Mftft'.......... IbL . ....... 1.~.... .. m. OI-III1I-PH) l:.11:QZ ~\ C:UENl: _1lIlII-=',:\~1lt 11'11.:1: MX:IN'I~,*' t~____ THOMAS ECKERTY T1l\.!: LEGAL DESCRIPTION SADDLEBROOK VILLAGE PHASE TWO .. _1IIlII: . 01-0191 =,,: I Of 2 ~1I(7:"''''1<--''-' !i .. ~ ....... .... .... ~ .. .... ~ '-0 ~ ,........, Exhibit "B" " I .. OR: 3~~!drg~mU~~A7 April 27, 2010 Page 14 of 25 ~ 'I ' I , 'i. I.t " I t;, ff&~i'U n" ..I f H, (,f~ "1,,, I,' J ! ,. 11,11, I d. r .-! Iii 'IHI ft I f I~~' ~~ ~! 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J." lall "" ,J~ I -1 b 111 ~ ~ , i j, ~ I . . ... . . **t OR: 3NtfGJ;J~h~* Page 15 of 25 Exhibit "e" Saddlebrook Village Phase 2 Collier County Impact Fees Fee Rate Unit Total Community Park $471.00 238 $112,098.00 Community Park $31,860.00 Regional Park $111,860.00 Regional Park $31,800.00 Library $63,772.00 Road $539,678.00 School $246,446.00 EMS $27.714.00 Jail $117.98 298 $35,158.04 Water nJa 6" meter $470,995.00 Sewer n/a 6" meter $499,474.00 Total $2,170,855.04 - ,.jIJ Agenda Item No. 16A7 ~~166h 3 EXECUTION COPY TRI-PARTY AGREEMENT among CREATIVE CHOICE HOMES XIV, LTD. (the "Owner''), COLLIER COUNTY, a political subdivision of the State of Florida, through its Board of Commissioners (the "County''), and THE BANK OF NEW YORK TRUST COMPANY OF FLORIDA, N.A., a national banking association (the "Trustee'') \ ORI.1\CORPSECIoCIl&44O.'" 20019/0014 RMA kl. 317103 9:20 AM Agenda 'i~i3 TRI-PARTY AGREEMENT THIS TRl-P ARTY AGREEMENT ("Agreement") is being executed as of this 18th day of March, 2003, by and among CREATIVE CHOICE HOMES XIV, LTD., a Florida limited partnership (the "Owner"), COLLIER COUNTY. a political subdivision of the State of Florida, through its Board of Commissioners (the "County''). and THE BANK. OF NEW YORK TRUST COMPANY OF FLORIDA, N.A., a national banking association (the "Trustee") (collectively, the "Parties"). RECITALS A. The Owner has contracted to purchase, certain real property (herein referred to as the "Premises") located in Naples, Florida. B. The Owner intends to construct upon the Premises certain improvements and appurtenances (herein referred to as the "Improvements" and together with the Premises referred to as the "Project'') to consist generally of an approximately 298-unit low- to moderate-income apartment project and all other improvements as may be required therewith. C. The Owner and the County have entered into a certain Agreement for 100% Deferral of Collier County Impact Fees for Multi-Family Affordable Housing dated March 7. 2003 (the .'Deferral Agreement") with respect to the deferral of certain impact fees in the amount of $2,170,855.04 (the "Impact Fee Amount"), an executed copy of which Deferral Agreement is attached hereto as Exhibit A and the terms of which Deferral Agreement are fully incorporated by reference. D. The Owner agrees to pay the Impact Fee Amount under the terms of this Agreement to the Trustee as satisfaction of its payment obligation under the Deferral Agreement. E. The Trustee has agreed to hold in the Impact Fees Account (as defined in that certain Trust Indenture dated as of December 1, 2002, by and between the Trustee and the Housing Finance Authority of Collier County, Florida (the "Indenture")) an amount equal to $1,803,882.13 (the "Impact Fee Deposit Amount") received from the Owner for the benefit of the County for the payment of the impact fees pursuant to Sections 5.12 and 6.01 of the Indenture. F. This Agreement is being executed to coordinate the aforesaid financing arrangement. IN ORDER TO IMPLEMENT the above facts and understandings, and for value received, the Parties agree as follows: - ORL lICORPSEC\496440.4 2001910014 RWI. kIa 3fT103 9:20 NIo Agenda Item No. 16A7 April 27, 2010 r68A3 ARTICLE I REPRESENTATIONS AND AGREEMENTS OF THE COUNTY The County represents and agrees that: Section 1.1. FuU Force and Effect. The Deferral Agreement is with the Owner and is in full force and effect. Section 1.2. Deposit of Impact Fee Amount The County agrees that, notwithstanding anything to the contrary contained in the Deferral Agreement, the Impact Fee Deposit Amount shall be deposited into the Impact Fees Account pursuant to Sections 5.12 and 6.01 of the Indenture with the Trustee. The County acknowledges that the Owner shall direct the investment of moneys in the Impact Fees Account in Permitted Investments. The County acknowledges that Owner has directed the Trustee to invest the Impact Fee Deposit Amount in a Permitted Investment that has guaranteed a yield sufficient to increase the Impact Fee Deposit Amount to the Impact Fee Amount by the scheduled due date for the Impact Fee Amount. The County agrees that such Irilpact Fee Deposit Amount and all investment income thereon shall be held solely on the County's behalf and paid to the County in accordance with the written direction of the County as required pursuant to Sections 5.12 and 6.01 of the Indenture. The County shall not request or direct the Trustee to disburse any of the Impact Fee Deposit Amount and all investment income thereon except in accordance with the Deferral Agreement and the County's Code of Laws Chapter 74. Section 1.3. Acceptance of Payment from Owner. The County agrees that once such Impact Fee Deposit Amount has been paid by the Owner to the Trustee the Owner shall have no further duties, rights, or obligations with respect to tbe payment of the deferred impact fees under the Deferral Agreement and that all payment obligations by the Owner have pursuant to the Deferral Agreement been satisfied, except as set forth in Section 2.2, below. ARTICLE n REPRESENTATIONSANDAGREEMENTSOFO~R The Owner represents and agrees that: Section 2.1. Completion ofImproveme"ts. The Owner will promptly commence the construction of the 'contemplated Improvements and agrees to proceed toward the completion thereof with good faith and without undue delay in accordance with the plans and specifications relating to Heron Cove Apartments. Section 2.2. Payment of the Impact Fee Amount The Owner agrees and acknowledges that such Impact Fee Deposit Amount shall be nonrefundable to the Owner. The Owner agrees and acknowledges that such Impact Fee Deposit Amount and all investment income thereon will be held solely for the benefit of the County. The Owner agrees that if the moneys in the Impact Fees Account are insufficient to pay the amounts owed under the Deferral Agreement then tbe Owner shall be responsible for such insufficiency and the Owner further agrees that the County's ORl1\CORPSEC\4ll644O.4 200191OO~4 RMA k1. 3f71C3 9:20 AM 2 Agenda Item No. 16A7 ~~'7S~A 3 rights and remedies under the Deferral Agreement shall apply with respect to the Owner's obligation to pay the insufficiency. Section 2.3. Representations and Covenants Regarding Low-income Housing. The Owner hereby acknowledges and agrees that the County is entering into this transaction for the purposes of facilitating the provision of housing for persons of low and moderate income within Naples, Florida. To this end, the Owner hereby represents and covenants with the County as follows: (a) The Improvements will comprise one or more similarly constructed dwelling units, each of which will contain separate and complete facilities for living, sleeping, eating, cooking and sanitation for a single person or a family, including a living area, a sleeping area, bathing and sanitation facilities and cooking facilities equipped with a cooking range, refrigerator and sink. (b) None of the dwelling units in the Improvements will at any time be utilized on a transient basis or will be used as a hotel. motel, dormitory, fraternity house, sorority house, rooming house, nursing home, hospital. sanitariwn, rest home or trailer court or park. ( c) All of the dwelling units will be rented or available for rent on a continuous basis to members of the general public and the Owner will not give preference to any particular class or group in renting the dwelling units in the Improvements, except to the extent that dwelling units are required to be leased or rented to low-income tenants and persons or families of moderate income. Low-income tenants will have equal access to and enjoyment of all common facilities of the Improvements. ARTICLE In REPRESENTATIONS AND AGREEMENTS OF THE TRUSTEE The Trustee warrants and agrees that: Section 3.1. The Escrow Account The Trustee has agreed to establish the Impact Fees Account pursuant to'the Indenture on behalf of the County. Section 3.2. Acceptance of Perfomumce by the Owner. The Trustee has accepted the Impact Fee Deposit Amount from the Owner. The Trustee agrees and acknowledges that such Impact Fee Deposit. Amount and all investment income thereon shall be nonrefundable to the Owner. The Trustee has deposited such Impact Fee Deposit Amount in the Impact Fees Account. Section 3.3. Disbursements. The Trustee agrees to disburse from the Impact Fees Account to the County solely in accordance with the terms and conditions of Sections 5.12 and 6.0 I of the Indenture. - 3 ORL 1\CORPSEC\491W1O.4 2001ll1OO14 RMA klo 3/7103 9:20 AM Agenda Item No. 16A7 April 27,2010 pagl062A 3 ARTICLE IV MISCELLANEOUS AND GENERAL PROVISIONS Section 4.1. Notices. Any notices, directions, consents or other communications required or permitted to be given hereunder shall be in writing and given by registered or certified mail, addressed to the Parties hereto, at the following addresses or to such other addresses as the Parties may for themselves designate in writing for the purpose of receiving notices hereunder: County: Collier County c/o Ass't. CoIlier Cty. AU'y. 3301 Tamiami Trail East Naples, Florida 34112 Attention: Patrick G. White with a copy to: Creative Choice Homes XIV, Ltd. c/o Creative Choice Homes, Inc. 4243 Northlake Blvd. Palm Beach Gardens, Florida 33410 Attention: Mr. John F. Weir Trustee: The Bank of New York Trust Company of Florida, N.A. 10161 Centurion Parkway Jacksonville, FL 32256 Attention: Ms. Christine A. Boyd Section 4,2. Governing Laws. This Agreement has been negotiated, made, executed and delivered in the State of Florida and shall be construed in accordance with the laws of said state. Section 4.3. Binding Effect This Agreement shall bind and inure to the benefit of the Parties hereto and their successors, heirs, executors, administrators and assigns. Section 4.4. Amendments. This Agreement may not be changed, terminated or modified orally or in any other manner than by agreement, in writing, signed by the parties hereto. Section 4.5. Headings. The headings in this Agreement are for convenience of reference and shall not be construed to modify the terms hereof. Section 4.6. Cou"terptu1s. This Agreement may be signed in separate counterparts and shall be operative when each party has signed a counterpart. [Signature Page Attached Hereto and Incorporated Herein by Reference.] ORl1\CORPSEC\4964<10.4 2001910014 RMA lei. 317103 9:20 IUA 4 Agenda Item No. 16A7 ;2tffN3 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement in manner and form sufficient to bind them, all as of the date first above written. ATTEST: THE BANK OF NEW YORK TRUST COMPANY OF FLORIDA, N.A., a national banking association BY:~~~ ~:~: . Ie ' ( "'de 5 - ORL 1\CORPSEC\496440.4 2001910014 RMA Ida 311103 9:20 AM ~, Agenda Item No. 16A7 April 27, 2010 ret; A23 AlTEST: CREATIVE CHOICE HOMES XIV, LTD., a Florida limited partnership PATRICIAO. LAINE By: By: -PaLw~ €~ Creative Choice Homes XIV, Inc., a Florida corporation, its general partner By: Jw "'VV~ hn F. Weir, Senior Vice President ( ORL 1\CORPSEC\4964<<l.4 2001910014 RIlM Ids 317103 9:20 AM 6 ATTEST: D~GHTE.BROCK.CLERK ,.. ~~. . By:~~~j',~:~ Deputy e~er1c ..' ':': J /l Attest:4s,to Ch&t...~t/ s1gnati"\onl,y_ . .;,"/ -r;; . ,,~ Approved as'~1 fonn ant\~. legal sufficiency:' [;t:;.'o. ~ . . ~. l' ORlllCORPSEC\496440.4 2001910014 RMA ~I. 3/7103 9;20 AM 7 Agenda Item No. 16A7 ft;3A?3 . By: TOM HENNING, CRAI 4-It...JZ.J~ , COLLIER COUNTY BUSlNESS MANAGEMENT AND BUDGET OFFICE IMPACT FEE SECTION 2800 N. Horseshoe Drive · Naples, Florida 34104 · (239) 403-2369 . Fax (239) 403-2405 CERTIFIED MAIL #7008 2810 000129637259 RETURN RECEIPT REQUESTED Agenda Item No. 16A7 April 27, 2010 Page 24 of 25 January 20,2010 Ms. Andrea Czarnecki, Registered Agent 2200 NW Corporate Blvd., Suite 302 Boca Raton, FL 33431 RE: Creative Choice Homes XIV, Ltd. (Heron Cove Apartments/Saddlebrook Village Phase 2) Collier County Impact Fee Deferral Agreement/Tri-Party Agreement Dear Ms. Czarnecki: On March 7, 2003, an Agreement for 100% Deferral of Collier County Impact Fees for Multi-Family Affordable Housing (Impact Fee Deferral Agreement - attached) was executed between Collier County and Creative Choice Homes, XIV, Ltd. The Agreement stood in lieu of payment of impact fees totaling $2,170,855.04 for a period of six years and nine months from the date of the Agreement. At the conclusion of the Agreement, December 7, 2009, the impact fees became immediately due and payable to Collier County. On March 18, 2003, a Tri-Party Agreement (attached) between Collier County, Creative Choice Homes XIV, Ltd. and The Bank of New York Mellon Trust Company of Florida was executed. This Tri-Party Agreement required that the Impact Fee Deposit, paid by Creative Choice Homes to The Bank of New York Mellon, be invested in order to guarantee a yield sufficient to increase the Impact Fee Deposit Amount to the full impact fee amount deferred, by the scheduled December 7,.2009 date; these funds being held solely on the behalf of Collier County. On December 7, 2009, Collier County, requested payment of $2,170,855.04 in accordance with the executed Tri-Party Agreement, tpe Impact Fee Deferral Agreement and Trust Indenture, as the term of the specified Impact Fee Deferral Agreement had concluded. However, on December 15,2009, Collier County received notification from The Bank: of New York Mellon that the balance of the Impact Fee Account totaled $2,127,384.42, which was $43,470.62 less than the total amount of impact fees deferred and due and payable to Collier County under the terms of the executed Impact Fee Deferral Agreement. Collier County has received funds in the amount of $2,127,384.42, leaving the outstanding balance of$43,470.62. . c o ~~ e c o ... " to y Creative Choice Homes XIV, Ltd. Page 2 Agenda Item No. 16A7 April 27, 2010 Page 25 of 25 Section 2.2 of the executed Tri-Party Agreement provides the following: Section 2.2 Payment of the Impact Fee Amount. The Owner agrees and acknowledges that such Impact Fee Deposit shall be nonrefundable to the Owner. The Owner agrees and acknowledges that such Impact Fee Deposit Amount and all investment income thereon will be held solely for the benefit of the County. The Owner agrees that if the moneys in the Impact Fee Account are insufficient to pay the amounts owed under the Deferral Agreement then the Owner shall be responsible for such insufficiency and the Owner further agrees that the County's rights and remedies under the Deferral Agreement shall apply with respect to the Owner's obligation to pay the insufficiency. Creative Choice Homes, XN, Ltd. is in default of the Impact Fee Deferral Agreement. In accordance with the remedy provisions of the said Agreement please remit payment totaling $43,470.62, within ninety (90) days of the date of this notice, payable to the Collier County Board of County Commissioners to the address listed below. In the event the default is not cured within ninety (90) days after mailing written notice to the Owner, the County may bring a civil action to enforce the Impact Fee Deferral Agreement. Collier County Government Community Development and Environmental Services Division Impact Fee Administration 2800 North Horseshoe Drive Naples, FL 34104 Attn: Amy Patterson If you require any additional information, please feel free to contact me at 239.252.5721 or via email atamypatterson@colliergov.net. Thank you for your attention to this matter. Sincerely, n 1]M1~L y-/~ ~; ~.~Patt~rson Impact Fee and Economic Development Manager Attachments : 1. Tri-Party Agreement 2. Agreement for 100% Deferral of Collier County Impact Fees fOT Multi-Family Affordable Housing (Impact Fee Deferral Agreement) cc: Leo E. Ochs, IT" County Manager Jeffrey A. Klatzkow, County Attorney Nick Casalanguida, Interim Administrator Community Development & Environmental Services Paula Fleishman, Impact Fee Coordinator Frank Ramsey, Housing Manager, Public Services Division Mr. Daniel Bivens, President, Proxypro Management, Inc. Yash Pal Kakkar, Creative Choice Homes XIV, Ltd, Harvey J. Polly, President, Progression Housing Foundation, Inc. ,-