Agenda 07/27/2010 Item #16K 2Agenda Item No. 16K2
July 27, 2010
Page 1 of 6
EXECUTIVE SUMMARY
Recommendation to the Board of County Commissioners to execute a Settlement
Agreement with CREATIVE CIIOICE HOMES XIV, LTD. (Saddlebrook II) that settles in
full the litigation styled as Board of County Commissioners v. Creative Choice Homes XIV,
Ltd., et al., 10- 3308 -CA, now pending in the Circuit Court for the Twentieth Judicial
Circuit in and for Collier County, Florida, and direct all the documents to be recorded in
the Official Records of Collier County, Florida.
OBJECTIVE: For the Board of County Commissioners to execute a Settlement Agreement,
which is attached hereto, with and to CREATIVE CHOICE HOMES XIV, LTD. that settles in
full the litigation styled as Board of County Commissioners v. Creative Choice Homes XIV,
Ltd., et al., 10- 3308 -CA, now pending in the Circuit Court for the Twentieth Judicial Circuit in
and for Collier County, Florida, and direct all the documents to be recorded in the Official
Records of Collier County, Florida.
CONSIDERATIONS: On March 7, 2003, the Board of County Commissioners entered into an
Agreement for 100% Deferral of Collier County Impact Fees with Creative Choice Homes XIV,
Ltd., a Florida Limited Partnership, the developer of Saddlebrook Phase II, affordable housing
units. This Agreement was recorded and became a lien on the subject property on March 20,
2003, in OR Book 3244, Page 1587. The amount of the impact fees deferred was $2,170,855.04,
and by Ordinance would become due and payable by December 7, 2009. The impact fees were
not paid in full as Creative Choice's investment of the deferral fees only yielded $2,127,384.42,
leaving a $43,470.62 deficit. On January 20, 2010, the County sent out the required notices to
Creative Choice Homes XIV, Ltd, for payment and interest. The impact fees were not paid, and
by Agenda Item 16A7 on April 27, 2010, the Board authorized the County Attorney to file suit
for the money and to foreclose on the subject property. Suit was filed on May 24, 2010, seeking
money damages of the impact fees due ($43,470.62), the 10% penalty mandated by Ordinance,
plus interest of $235.84 due as of May 20, 2010, with accruing interest of $7.86 per day
thereafter, and foreclosure of the County's lien on the subject property. The County was
approached by counsel for Creative Choice who offered to make monthly payments for one year
in the total amount of the deficiency, without penalty or fees being assessed. This offer was
made prior to Creative Choice filing an Answer to the Complaint. Creative Choice has agreed
that, in the event of a single missed payment, the County may obtain Judgment against Creative
Choice, without need of a hearing via the filing of an Affidavit with the Court.
FISCAL IMPACT: The County will capture the entirety of the impact fees due in the amount
of $43,470.62.
GROWTH MANAGEMENT IMPACT: There is no growth management impact associated
with this item.
LEGAL CONSIDERATIONS: Both the County Attorney and the Growth Management
Division believe that it is prudent to accept this cash offer of settlement and execute the attached
documents. STW.
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Agenda Item No. 16K2
July 27. 2010
Page 2 of 6
RECOMMENDATION: That the Board of County Commissioners executes a Settlement
Agreement, which is attached hereto, with CREATIVE CHOICE HOMES XIV, LTD., that
settles in full the litigation styled as Board of County Commissioners v. Creative Choice Homes
XIV Ltd., et al., 10- 3308 -CA, now pending in the Circuit Court for the Twentieth Judicial Circuit
in and for Collier County, Florida, and direct all the documents to be recorded in the Official
Records of Collier County, Florida.
PREPARED BY: Steven T. Williams, Esq., Assistant County Attorney
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Agenda Item No. 16K2
July 27, 2010
Page 3 of 6
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
Item Number:
16K2
Item Summary:
Recommendation to the Board of County Commissioners
to Settlement
execute a Agreement
with CREATIVE CHOICE HOMES XIV, LTD.
(Saddlebrook II) that settles in full the litigation
styled as Board of County Commissioners v.
Creative Choice Homes XIV, Ltd., et al.. 10-
3308-CA, now pending in the Circuit Court for
the Twentieth Judicial Circuit in and for Collier
County. Florida, and direct all the documents
to be recorded in the Official Records of Collier
County, Florida.
Meeting Date:
7/27/2010 9 :00 00 AM
Prepared By
Steven Williams
Assistant County Attorney
Date
County Attorney
County Attorney
7/6/2010 12:04:02 PM
Approved By
Steven Williams
Assistant County Attorney
Date
County Attorney
County Attorney
71612010 2:02 PM
Approved By
Jeff Klatzkow
County Attorney
Date
716;2010 2:07 PM
Approved By
Amy Patterson
Manager - Impact Fees & EDC
Date
Community Development &
Environmental Services
Business Management & Budget Office
7/912010 2:47 PM
Approved By
OMB Coordinator
Date
County Manager's Office
Office of Management & Budget
7;1212010 9:27 AM
Approved By
Susan Usher
NlanagementlBudget Analyst, Senor
Date
Office of Management &
Budget
Office of Management & Budget
711512010 6:07 PM
Approved By
Mark lsackson
Management /Budget Analyst, Senior
Date
Office of Management &
Budget
Office of Management & Budget
7116"2010 11:16 AM
AgendaI
SETTLEMENT AGREEMENT
July 27, 2010
Page 4 of 6
THIS SETTLEMENT AGREEMENT (hereinafter referred to as the "Agreement ") is made
and entered into this _ of , 2010, by and between Creative Choice Homes XIV,
LTD. ( "Creative Choice ") and Collier County, Florida, a political subdivision of the State of
Florida (the "County ").
WHEREAS, Creative Choice is the owner of the premises described in Exhibit A attached
hereto located within the unincorporated area of Collier County, Florida, within which it operates
a residential subdivision known currently as "Tuscan Isle;" and
WHEREAS, Creative Choice and the County entered into an Agreement on March 7, 2003,
allowing Creative Choice to defer payment of its impact fees to the County; and
WHEREAS, the County brought suit against Creative Choice (Board of County
Commissioners v. Creative Choice Homes XIV, Ltd., et al., 10- 3308 -CA) now pending in the
Circuit Court for the Twentieth Judicial Circuit in and for Collier County, Florida, as Creative
Choice's payment of its impact fees from an investment with Co- Defendant, The Bank of New
York Trust Company of Florida, N.A., fell $43,470.62 dollars short of fulfilling its obligation
under the Agreement; and
WHEREAS, the remaining named Defendants in this action are believed to have an interest
in the property described in Exhibit A and said interests will remain unaffected by this
Agreement; and
WHEREAS, the County asserts that it is also entitled to a delinquency assessment of 10% of
the remaining balance; and
WHEREAS, the County asserts that it is entitled to the payment of its reasonable attorney's
fees and costs in this matter; and
WHEREAS, the County acknowledges that Tuscan Isle provides a valuable community
service by providing affordable housing to the residents of Collier County; and
WHEREAS, the parties agree that Creative Choice will pay Collier County the unpaid
impact fee balance of $43,470.62; and
WHEREAS, the County agrees to accept the $43,470.62 in the form of 12 equal payments
of $3,622.55 due and payable on the 8a' of each month, with the first payment due August 8,
2010; and
WHEREAS the parties agree that there will be no late payment penalties or interest due
upon the $43,470.62 and each party shall bear their own attorney's fees.
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:
Prolaw: 72489
Age
July 27, 2010
Page 5 of 6
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. Attorneys' Fees. All parties shall pay their own attorneys' fees and costs associated
with this matter.
4. Judgment via Affidavit. Creative Choice agrees that, in the event a single payment is
missed or late to the County, the County may obtain a Judgment pursuant to the Complaint filed
in Collier County Case No. 10- 3308 -CA against Creative Choice by the filing of a sworn affidavit
from the County's Impact Fee Coordinator, Amy Patterson, or her designee, stating that Creative
Choice has failed to make a timely payment. Any Judgment obtained pursuant to this provision
shall include a 10% delinquency provision and shall include attorney's fees and costs to be
assessed against Creative Choice.
5. 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.
6. 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.
7. 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.
8. Entire Settlement Agreement. This Agreement contains the entire agreement between
the parties and all prior or contemporaneous negotiations or representations arc merged into this
Agreement. This Agreement may not be amended or modified except in a written document
signed by the parties.
9. Execution. Creative Choice 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
County enters into this Agreement. Creative Choice shall pay all costs of recording this
Agreement. The County shall provide a copy of the recorded document to the Developer upon
request.
10. Aoolicability. This Agreement shall be binding on Creative Choice's successors,
heirs, and assigns.
Proiaw: 72489
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July 27, 2010
Page 6 of 6
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
M
, Deputy Clerk
Signed, sealed and
delivered in the presence oL
i ature
GW�et
Printed Name
Signature
( Sew
Printed Name
STATE OF FLORIDA
COUNTY OF PALM BEACH
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
In
FRED W. COYLE, Chairman
CREATICE CHOICE HOMES XIV, LTD.,
a Florida limited partnership
By: Creative Choice Homes XIV, Inc., a Florida
corporatio % eneral partner
By:
Yashpal akkar, as Pre-s-icTent
The foregoing instrument was acknowledged before me this � day of June, 2010,
by Yashpal Kakkar, as President of CREATIVE CHOICE HOMES XIV, INC., general partner of
CREATIVE CHOICE HOMES XIV, LTI�.; who #s personally known Yr has produced
as identification.
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Approved as to form
and legal sufficiency:
Steven T. Williams
Assistant County Attorney
Drotary Public
(Print Name:
My Commission Expires: