Agenda 04/14/2009 Item #10C
Agenda Item No. 10C
April 14, 2009
Page 1 of 33
EXECUTIVE SUMMARY
Recommendation to approve a Developers Agreement between Kite Eagle Creek II, LLC,
KRG Eagle Creek IV, LLC, KRG 951 & 41, LLC, ABC Liquors, Inc., ReaItyNet Real
Estate, LLC and Habitat for Humanity of Collier County, Inc. (the "Consortium
Developers") and Collier Connty to help fund the design, permitting, right-of-way
acquisition and construction improvements to the intersection ofUS-41 and SRlCR-9S1.
OBJECTIVE: To obtain BCC approval of a Developers Agreement between the Consortium
Developers and Collier County to provide funding for improvements at the intersection ofUS-41
and SR/CR-951 to include a PD&E reevaluation, design, permitting, right of way acquisition and
construction of at-grade improvements within the footprint of the ultimate grade separated
improvement and by future agreement, incorporate committed Florida Department of
Transportation (FDOT) resurfacing funding for SR-951 from the above intersection south
approximately 3.219 miles into one project (the "Road Project").
CONSIDERATION: On February 24,2009, the BCC terminated a prior amended agreement
relating to this matter due to non payment and directed staff to work with the County Attorney to
review a proposal provided by the remaining Consortium Developers to determine if a viable
solution could be reached. On March 24, 2009 the BCC directed staff to pursue additional
solutions for consideration or provide a new agreement at the next scheduled BCC meeting.
Staff pursued the inclusion of transit subsidies and moved forward with an advancement of the
AUIR update on the US-41 corridor east of SR-95 1. Traffic counts from the prior quarters and
counts within the last few weeks were used to calculate the existing background traffic. The trip
bank was reviewed. projects from existing developed parcels were removed and distribution was
adjusted based on actual driveway connections. A technical memorandum (attached) providing a
midyear AUIR update was prepared by the Consortium Developers' consultant. The technical
memorandum was reviewed by County staff and the County's consultant for accuracy. Staff
concurs that the at-grade improvements and the midyear AUIR update documents that there is
sufficient capacity for the Consortium Developers to proceed with their projects, consistent with
the County's concurrency management system. Additionally the Consortium Developers have
committed to over $500,000 in bus subsidies over a five year period and additional donated right
of way in order to facilitate the Road Project and maintain concurrency. The County will also
include Intelligent Traffic Management Systems (ITMS) at the intersection ofUS41 and CR/SR-
951 and the adjacent southerly intersections with the Road Project.
Stanley Consultants has estimated the at-grade intersection improvement costs at approximately
$18 million dollars. The Consortium Developers have committed $8,265,058.75. The BCC
directed staff to pursue additional funding sources through tax increment financing on the
Consortium Developers parcels or consideration of a concurrency back log authority. While
these options are viable they would require a comprehensive plan amendment and would not
generate the funds within the time needed to construct the improvements. Subsequently staff
contacted the Florida Department of Transportation (FOOT) to solicit additional funding for this
endeavor. FOOT has reviewed the proposed intersection improvement and has concurred that the
Road Project is viable and overlaps with their proposed resurfacing. FDOT is willing to commit
$8,357,718 of resurfacing dollars that is allocated for SR-951 south ofUS-4I, in the year 2013,
Agenda Item No. 10C
April 14, 2009
Page 2 of 33
in order to fund the Road Project (see attached FDOT TIP 2009-2014). The inclusion of donated
right of way, FDOT funding and County-sponsored Construction Engineering Inspection (CEI)
will enable the Road Project to go to construction in the Summer of2013.
The inclusion of the FOOT resurfacing dollars will make the Road Project financially feasible
for inclusion in the county's Capital Improvement Element as a funded project in the County's
FY 2014. FDOT funding will be available in their FY 2013-2014 budget year which begins July
1,2013. The County would advertise the Project in the summer of 2013 and would anticipate
construction to begin in the fall of2013.
FISCAL IMPACT: The County would include the Project within the CIE in FY 2014 and may
be responsible to fund the contingency of 10% in the amount of 1.5 million dollars.
GROWTH MANAGEMENT IMPACT: The County will be required to amend the CIE within
the GMP to identify this project as a financially feasible.
LEGAL CONSIDERATIONS: The County Attorney worked with Mr. Casalanguida on this
proposed Development Agreement, which is legally sufficient for Board action. This is a regular
item requiring simple majority vote. -JAK
RECOMMENDATION: That the Board of County Commissioners (I) approves the Developer
Agreement between the Consortium Developers and Collier County; (2) directs staff to create a
specific Road Project account and amend the CIE to include the Road Project in 2014; and (3)
directs staff to bring back a Joint Participation Agreement (JP A) with FDOT to commit the
resurfacing funding.
Prepared By: Nick Casalanguida, Transportation Planning Director
Attachments: 1) Exhibit A; 2) Exhibit B; 3) Exhibit C; 4) Exhibit D; 5) Exhibit E; 6) Analysis of
Count Station 608, US41 East of 951; 7) FDOT TIP 2009-2014; 8) Peak Hour Traffic
Westbound on US 41 West of Trail Ridge; 9) Traffic Capacity Memo 4-3-09; 10) DCA US 41
Consortium ill 4-3-09
Item Number:
Item Summary:
Meeting Date:
Page I of2
Agenda Item No. 10C
April 14, 2009
Page 3 of 33
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
10C
This item to be heard at 11 :30 a.m. This item requires that all participants be sworn in and ex
parte disclosure be provided by Commission members. Recommendation to approve a
Developers Contribution Agreement (DCA) between Kite Eagle Creek II, LLC, KRG Eagle
Creek IV, LLC, KRG 951 & 41, LLC, ABC Liquors, Inc., RealtyNet Real Estate, LLC and
Habitat for Humanity of Collier County, Inc., (The Developers) and Collier County to fund
construction improvements to the intersection of US-41 and SR/CR-951 (Nick Casalanguida,
Transportation Planning Manager)
4/14/200990000 AM
Prepared By
Nick Casalanguida
Transportation Services
MPO Director
Date
Transportation Planning
416120094:36;44 PM
Approved By
Nick Casalanguida
Transportation Services
MPO Director
Date
Transportation Planning
416120094:36 PM
Approved By
Norm E. Feder, AIC?
Transportation Services
Transportation Division Administrator
Date
Transportation Services Admin.
417120097:08 AM
Approved By
Gloria Herrera
Transportation Services
ManagemenUBudget Analyst
Date
Stormwater Management
4171200910;01 AM
A pproved By
Therese Stanley
Transportation
Grants Coordinator
Date
Transportation Administration
41712009 11; 01 AM
Approved By
Jeff Klatzkow
County Attorney
County Attorney
Date
County Attorney Office
417120091:39 PM
A pproved By
Pat Lehnhard
Transportation Services
Executive Secretary
Date
Transportation Services Admin
417/20092;52 PM
Approved By
OMB Coordinator
County Manager's Office
OMB Coordinator
Date
Office of Management & Budget
41712009 2:56 PM
Approved By
Mark Isackson
County Manager's Office
Budget Analyst
Date
Office of Management & Budget
417/20093:41 PM
Approved By
Leo E. Ochs, Jr.
Deputy County Manager
Date
Page 2 of2
Agenda Item No. 1 DC
April 14, 2009
Page 4 of 33
Board of County
Commissioners
County Manager's Office
417120094:40 PM
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Exhibit "B"
Agenda Item No. 10C
April 14, 2009
Page 6 of 33
Leaal DescriDtion for KRG 951 &. 41 LLC
A PARCEL Of LAND LOCATED IN SECTION 3, TOWNSHIP 51 SOUTH, RANGE 26
EAST, COLLIER COUN1Y, fLORIDA BEING MORE PARTICULARLY DESCRIBED AS
fOLLOWS:
BEGIN AT THE NORTHEAST CORNER Of TRACT "0.5.-3" Of TRAIL RIDGE,
ACCORDING TO THE PLAT THEREOf AS RECORDED IN PLAT BOOK 44 AT
PAGES 71 THROUGH 77 OF THE PUBLIC RECORDS Of COLLIER COUN1Y,
fLORIDA; THENCE RUN NORTH 89055'57" WEST, ALONG THE NORTH LINE Of
SAID TRACT "0.5.-3", fOR A DISTANCE Of 867.07 fEET TO THE NORTHWEST
CORNER Of LANDS DESCRIBED IN OffICIAL RECORD BOOK 3620 AT PAGES
2872 THROUGH 2876 Of THE PUBLIC RECORDS Of COLLIER COUN1Y,
fLORIDA: THENCE RUN SOUTH 04009'46" WEST, ALONG THE WEST LINE Of .
SAID LANDS fOR A DISTANCE Of 163.91 fEET; THENCE RUN SOUTH 02028'03"
WEST, ALONG SAID LANDS fOR A DISTANCE Of 36.59 fEET TO THE
NORTHERL YMOSTWESTERL Y CORNER Of TRACT "C" Of SAID TRAIL RIDGE;
THENCE RUN SOUTH 02030'29" WEST, ALONG THE WESTERLY LINE Of SAID
TRACT "C", fOR A DISTANCE Of 100.09 fEET; THENCE RUN NORTH 90000'00"
WEST, ALONG THE NORTHERLY LINE Of SAID TRACT "C", FOR A DISTANCE Of
100.09 fEET TO A POINT ON THE EAST RIGHT-Of-WAY LINE Of STATE ROAD
#951 (RIGHT-Of-WAY VARIES); THENCE RUN NORTH 02030'29" EAST, ALONG
SAID EAST RIGHT-Of -WAY LINE, fOR A DISTANCE Of 140.20 fEET; THENCE
RUN NORTH 04012'04" EAST, ALONG SAID EAST RIGHT-Of-WAY LINE, fOR A
DISTANCE Of 640.85 fEET; THENCE RUN SOUTH 89042'14" EAST fOR A
DISTANCE Of 264.66 fEET; THENCE RUN NORTH 15042'49" WEST fOR A
DISTANCE Of 320.41 fEET; THENCE RUN NORTH 35039'44" EAST fOR A
DISTANCE OF 200.00 fEET TO A POINT ON THE SOUTHERLY RIGHT-Of-WAY
LINE Of STATE ROAD No. 90 (TAMIAMI TRAIL 200,00 fOOT RIGHT-Of-WAY);
THENCE RUN SOUTH 54020'16" EAST, ALONG SAID SOUTHERLY RIGHT-Of-WAY
LINE, FOR A DISTANCE Of 1,927.32 fEET; THENCE RUN SOUTH 35039'44"
WEST fOR A DISTANCE Of 400,00 fEET TO A POINT ON THE NORTHERLY LINE
Of TRAIL RIDGE ACCORDING TO THE PLAT THEREOf AS RECORDED IN PLAT
BOOK 44 AT PAGES 71 THROUGH 77 Of THE PUBLIC RECORDS Of COLLIER
COUN1Y, fLORIDA; THENCE RUN NORTH 54020'16" WEST, ALONG THE
NORTHERLY LINE Of SAID TRAIL RIDGE, fOR A DISTANCE Of 855.70 fEET TO
THE POINT Of BEGINNING Of THE PARCEL Of LAND HEREIN DESCRIBED,
CONTAINING 24.575 ACRES, MORE OR LESS
Leaal DescriDtion for Kite Eaale Creek II LLC
A PARCEL Of LAND LOCATED IN SECTION 3, TOWNSHIP 51 SOUTH, RANGE 26
EAST, COLLIER COUN1Y, fLORIDA, IN PART BEING LOTS 3 AND 4 Of CAPRI
COMMERCIAL CENTER AS RECORDED IN PLAT BOOK 31, PAGES 52 AND 53 Of
THE PUBLIC RECORDS Of COLLIER COUN1Y, fLORIDA, AND IN PART BEING
PORTIONS OF TRACTS M-1 AND M-2 Of CRYSTAL LAKE TERRACES AT EAGLE
Exhibit "Boo
Agenda Item NO.1 OC
April 14, 2009
Page 7 of 33
CREEK AS RECORDED IN PLAT BOOK 16, PAGES 30 AND 31 OF THE PUBLIC
RECORDS OF COLLIER COUN1Y, FLORIDA, AND BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
COMMENCE ON THE SOUTHWESTERLY RIGHT-OF-WAY LINE OF U.S. HIGHWAY
NO. 41 AT THE NORTHWESTERLY CORNER OF "CAPRI COMMERCIAL CENTER"
AS RECORDED IN PLAT BOOK 31, PAGES 52 AND 53 AND THE
NORTHWESTERLY CORNER OF "LOT 2 CAPRI COMMERCIAL CENTER REPLAT"
ftS RECORDED IN PLAT BOOK 35, PAGE 85 OF THE PUBLIC RECORDS OF
COLLIER COUN1Y, FLORIDA FOR A POINT OF BEGINNING. FROM SAID POINT
RUN SOUTH 35039'28" WEST ALONG THE WESTERLY LINE OF SAID "CAPRI
COMMERCIAL CENTER" AND "LOT 2 CAPRI COMMERCIAL CENTER REPLAT", A
DISTANCE OF 272.94 FEET TO THE SOUTHWESTERLY CORNER OF SAID "LOT 2
CAPRI COMMERCIAL CENTER REPLAT"; THENCE RUN SOUTH 54020'32" EftST
ALONG THE SOUTHERLY LINE OF SAID "LOT 2 CAPRI COMMERCIAL CENTER
REPLAT", A DISTANCE OF 171.00 FEET TO THE SOUTHEASTERLY CORNER OF
SAID "LOT 2 CAPRI COMMERCIAL CENTER REPLAT"; THENCE RUN NORTH
35039'28" EAST ALONG THE EASTERLY LINE OF SAID "LOT 2 CAPRI
COMMERCIAL CENTER REPLAT", A DISTANCE OF 23.00 FEET TO AN
INTERSECTION WITH THE SOUTHERLY LINE OF LOT 1 OF SAID "CAPRI
COMMERCIAL CENTER"; THENCE RUN SOUTH 54020'32" EAST ALONG SAID
SOUTHERLY LINE, A DISTANCE OF 226.05 FEET TO THE SOUTHEAST CORNER
OF SAID LOT 1; THENCE RUN NORTH 35039'28" EAST ALONG THE EAST LINE
OF SAID LOT 1, A DISTANCE OF 165.15 FEET; THENCE RUN NORTH 31038'24"
EftST ALONG SAID EAST LINE, A DISTANCE OF 43.40 FEET TO AN
INTERSECTION WITH THE WEST LINE OF LOT 5 OF SAID "CAPRI COMMERCIAL
CENTER"; THENCE RUN SOUTH 04013'24" WEST ALONG SAID WEST LINE, A
DISTANCE OF 300.05 FEET TO AN INTERSECTION WITH THE SOUTH LINE OF
SAID "CAPRI COMMERCIAL CENTER"; THENCE RUN SOUTH 87029'51" EAST
ALONG SAID SOUTH LINE, A DISTANCE OF 0.19 FEET TO AN INTERSECTION
WITH THE WESTERLY RIGHT-OF-WAY LINE OF STATE ROAD NO. 951, COLLIER
BOULEVARD, AS DESCRIBED IN THE ORDER OF TAKING AS RECORDED IN
OFFICIAL RECORDS BOOK 2630, PAGE 2773 OF THE PUBLIC RECORDS OF
COLLIER COUN1Y, FLORIDA; THENCE RUN SOUTH 04010'08" WEST ALONG
SAID WESTERLY RIGHT-OF-WAY LINE, A DISTANCE OF 136,65 TO THE NORTH
LINE OF THE PROPER1Y DESCRIBED IN OFFICIAL RECORDS BOOK 2699, PAGE
792; THENCE RUN NORTH 85002'55" WEST ALONG SAID NORTH LINE, A
DISTANCE OF 226.52 FEET TO AN INTERSECTION WITH THE BOUNDARY LINE
OF THE PROPER1Y AS DESCRIBED IN OFFICIAL RECORDS BOOK 3344, PAGE
260 OF SAID PUBLIC RECORDS OF COLLIER COUN1Y, FLORIDA; THENCE RUN
SOUTH 04057'05" WEST ALONG SAID BOUNDARY LINE AND THE WEST LINE OF
SAID PROPER1Y DESCRIBED IN OFFICIAL RECORDS BOOK 2699, PAGE 792, A
DISTANCE OF 78.24 FEET; THENCE RUN SOUTH 35039'28" WEST ALONG SAID
BOUNDARY LINE OF THE PROPER1Y ftS DESCRIBED IN OFFICIAL RECORDS
BOOK 3344, PAGE 260 AND SAID WEST LINE OF THE PROPER1Y DESCRIBED IN
OFFICIAL RECORDS BOOK 2699, PAGE 792, A DISTANCE OF 33.43 FEET;
THENCE RUN SOUTH 54020'32" EAST ALONG SAID BOUNDARY LINE OF THE
Exhibit "B"
Agenda Item No. 10C
April 14, 2009
Page 8 of 33
PROPERTY AS DESCRIBED IN OFFICIAL RECORDS BOOK 3344, PAGE 260 AND
THE SOUTHWESTERLY LINE OF SAID PROPERTY DESCRIBED IN OFFICIAL
RECORDS BOOK 2699, PAGE 792, A DISTANCE OF 175.20 FEET TO THE POINT
OF CURVATURE OF A CURVE OF SAID BOUNDARY LINE OF THE PROPERTY AS
DESCRIBED IN OFFICIAL RECORDS BOOK 3344, PAGE 260 AND SAID
SOUTHWESTERLY LINE OF THE PROPERTY DESCRIBED IN OFFICIAL RECORDS
BOOK 2699, PAGE 792, SAID CURVE BEING CONCAVE NORTHEASTERLY AND
HAVING A RADIUS OF 50.00 FEET, A CENTRAL ANGLE OF 33010'23" AND A
CHORD BEARING AND DISTANCE OF SOUTH 70055'44" EAST, 28.55 FEET,
RESPECTIVELY; THENCE RUN EASTERLY ALONG SAID CURVE, AN ARC
DISTANCE OF 28.95 FEET TO THE POINT OF TANGENCY OF SAID CURVE;
THENCE RUN SOUTH 87030'55" EAST ALONG SAID BOUNDARY LINE OF THE
PROPERTY AS DESCRIBED IN OFFICIAL RECORDS BOOK 3344, PAGE 260 AND
THE SOUTHERLY LINE OF SAID PROPERTY DESCRIBED IN OFFICIAL RECORDS
BOOK 2699, PAGE 792, AND ALONG THE SOUTH LINE OF THE PROPERTY
DESCRIBED BY THE ORDER OF TAKING RECORDED IN OFFICIAL RECORDS
BOOK 2605, PAGE 3232 OF SAID PUBLIC RECORDS OF COLLIER COUNTY,
FLORIDA, A DISTANCE OF 68.63 FEET TO THE POINT OF CURVATURE OF A
CURVE OF SAID BOUNDARY LINE OF THE PROPERTY AS DESCRIBED IN
OFFICIAL RECORDS BOOK 3344, PAGE 260 AND SAID PROPERTY DESCRIBED
BY THE ORDER OF TAKING AS RECORDED IN OFFICIAL RECORDS BOOK 2605,
PAGE 3232, SAID CURVE BEING CONCAVE NORTHERLY AND HAVING A RADIUS
OF 50.00 FEET, A CENTRAL ANGLE OF 12059'48" AND A CHORD BEARING AND
DISTANCE OF NORTH 85059'11" EAST, 11.32 FEET, RESPECTIVELY; THENCE
RUN EASTERLY ALONG SAID CURVE, AN ARC DISTANCE OF 11.34 FEET TO AN
INTERSECTION WITH SAID WESTERLY RIGHT-OF-WAY LINE OF STATE ROAD
951, COLLIER BOULEVARD; THENCE RUN SOUTH 04057'05" WEST ALONG SAID
WESTERLY RIGHT-OF-WAY LINE AND SAID BOUNDARY LINE OF THE PROPERTY
AS DESCRIBED IN OFFICIAL RECORDS BOOK 3344, PAGE 260, A DISTANCE OF
75.88 FEET TO A POINT ON A CURVE BEING CONCAVE SOUTHERLY AND
HAVING A RADIUS OF 100,00 FEET, A CENTRAL ANGLE OF 22008'22" AND A
CHORD BEARING AND DISTANCE OF NORTH 65010'10" WEST, 38.40 FEET,
RESPECTIVELY; THENCE LEAVING SAID WESTERLY RIGHT-OF-WAY LINE RUN
WESTERLY ALONG SAID CURVE AND SAID BOUNDARY LINE OF THE PROPERTY
AS DESCRIBED IN OFFICIAL RECORDS BOOK 3344, PAGE 260, AN ARC
DISTANCE OF 38.64 FEET TO THE POINT OF REVERSE CURVATURE OF A CURVE
BEING CONCAVE NORTHERLY AND HAVING A RADIUS OF 62.00 FEET, A
CENTRAL ANGLE OF 21053'50" AND A CHORD BEARING AND DISTANCE OF
NORTH 65017'26" WEST, 23.55 FEET, RESPECTIVELY; THENCE RUN WESTERLY
ALONG SAID CURVE AND SAID BOUNDARY LINE OF THE PROPERTY AS
DESCRIBED IN OFFICIAL RECORDS BOOK 3344, PAGE 260, AN ARC DISTANCE
OF 23.70 FEET TO THE POINT OF TANGENCY OF SAID CURVE; THENCE RUN
NORTH 54020'32" WEST ALONG SAID BOUNDARY LINE OF THE PROPERTY AS
DESCRIBED IN OFFICIAL RECORDS BOOK 3344, PAGE 260, A DISTANCE OF
236.49 FEET; THENCE RUN SOUTH 02029'06" WEST ALONG SAID BOUNDARY
LINE OF THE PROPERTY AS DESCRIBED IN OFFICIAL RECORDS BOOK 3344,
PAGE 260, A DISTANCE OF 174,68 FEET TO THE NORTHEASTERLY CORNER OF
Exhibit "B"
Agenda Item No. 10C
April 14, 2009
Page 9 of 33
"CRYSTAL lAKE TERRACES AT EAGLE CREEK REPlAT" AS RECORDED IN PlAT
BOOK 28, PAGES 72 THROUGH 74 OF SAID PUBLIC RECORDS OF COLLIER
COUNTY, FLORIDA; THENCE RUN NORTH 54020'32" WEST ALONG SAID
BOUNDARY LINE OF THE PROPERTY AS DESCRIBED IN OFFICIAL RECORDS
BOOK 3344, PAGE 260 AND THE NORTHEASTERLY LINE OF SAID "CRYSTAL
lAKE TERRACES AT EAGLE CREEK REPlAT", A DISTANCE OF 1052.44 FEET;
THENCE RUN NORTH 35039'28" EAST, A DISTANCE OF 100.00 FEET; THENCE
RUN NORTH 80000'15" EAST, A DISTANCE OF 63.72 FEET; THENCE RUN NORTH
35039'28" EAST, A DISTANCE OF 260.11 FEET; THENCE RUN SOUTH 54020'32"
EAST, A DISTANCE OF 33.46 FEET; THENCE RUN NORTH 35039'28" EAST, A
DISTANCE OF 360.81 FEET; THENCE RUN SOUTH 54015'18" EAST, A DISTANCE
OF 26.69 FEET; THENCE RUN NORTH 35044'42" EAST, A DISTANCE OF 34.06
FEET TO AN INTERSECTION WITH SAID SOUTHWESTERLY RIGHT-OF-WAY LINE
OF U.s. HIGHWAY NO. 41; THENCE RUN SOUTH 54020'32" EAST ALONG SAID
SOUTHWESTERLY RIGHT-OF-WAY LINE, A DISTANCE OF 374.76 FEET TO THE
SAID POINT OF BEGINNING.
CONTAINING 646,291 SQUARE FEET OR 14,84 ACRES OF lAND, MORE OR
LESS.
Leaal Descriotion for KRG Eaale Creek IV LLC
BEING A PART OF THE NORTHWEST V4 OF SECTION 3, TOWNSHIP 51 SOUTH,
RANGE 26 EAST, COLLIER COUNTY, FLORIDA. (THE SHOPS AT EAGLE CREEK
PAD #5 DESCRIPTION)
ALL THAT PART OF SAID SECTION 3, BEING MORE PARTICUlARLY DESCRIBED
AS FOLLOWS: COMMENCING AT THE EASTERLYMOST CORNER OF THE PlAT
OF THE SHOPS AT EAGLE CREEK, UNIT ONE, ACCORDING TO PlAT BOOK 25,
PAGES 44 THROUGH 45, OF THE PUBLIC RECORDS OF COLLIER COUNTY,
FLORIDA. THENCE ALONG THE SOUTHWESTERLY RIGHT-OF-WAY LINE OF
TAMIAMI TRAIL (U.s, 41) SOUTH 54020'32" EAST 185,50 FEET TO THE POINT
OF BEGINNING; THENCE CONTINUE ALONG SAID RIGHT-OF-WAY LINE SOUTH
54020'32" EAST 193.09 FEET; THENCE LEAVING SAID LINE SOUTH 35039'28"
WEST 123.00 FEET; THENCE NORTH 54020'32" WEST 193.09 FEET; THENCE
NORTH 35039'28" EAST 123.00 FEET TO THE POINT OF BEGINNING.
CONTAINING 0.55 ACRES MORE OR LESS, BEING 23,749 SQUARE FEET MORE
OR LESS. SUBJECT TO EASEMENTS AND RESTRICTIONS OF RECORD.
BEARINGS ARE BASED ON THE EASTERLY LINE OF SAID PlAT OF THE SHOPS
AT EAGLE CREEK, UNIT ONE, BEING SOUTH 54020'32" EAST.
Exhibit "B"
Agenda Item NO.1 OC
April 14, 2009
Page 10 of 33
Leaal DescriDtion for RealtvNet Real Estate LLC
PIN number 00726724107
351 26 COMM AT NE CNR TR M-1, N87DEG W 248.62FT, N02DEG E 271.35FT,
N02DEG E 35.84FT, S54DEG E 236.49FT, ELY 23,70FT, ALG ARC OF CURVE 2 TT
OF REVERSE CURVE, EL Y 38.64FT, S04DEG W 154.42FT TO POB.
Leaal DescriDtions for Habitat for Humanitv of Collier County
Parcell:
Commencing Clt the Southeast corner of Section 12, Township 51 South, Range
26 East, Collier County Florida, thence along the East line of said Section 12,
North 00011'20" East 2743,15 feet to the East % corner of said Section 12;
thence continue along said East line of Section 12, North 00027'50" East 894.35
feet; thence North 89056'55" West, 443,00 feet for a Place of Beginning; thence
North 89056'55" West, 475.53 feet; thence North 00034'06" East, 490.97 feet;
thence South 89056'55" East, 474.64 feet; thence South 00027'50" West, 490.97
feet to the Place of Beginning; being in the Southwest % of the Northeast % of
Section 12, Township 51 South, Range 26 East, Collier County Florida.
AND Parcel 2;
Commencing at the Southeast corner of Section 12, Township 51 South, Range
26 East, Collier County, Florida, thence along the East line of said Section 12,
North 00011'20" East, 2743.15 feet to the East % corner of said Section 12;
thence continue along said East line of Section 12, on a bearing of North
00027'50" East, 894.35 feet to a set tack; thence run North 89056'55" West for
918.53 feet to a set iron pin with survey cap #LS 4273 which is the Point of
Beginning; thence run North 89056'55" West for 443,98 feet to the West line of
the Southeast % of the Northeast % of said Section 12 which is marked by a set
iron pin with Survey Cap #LS 4273; thence along said West line run North
00034'06" East for 490.98 feet to the North line of the southeast % of the
Northeast % of said Section 12 which is marked by a iron pipe with Survey Cap
#LS 4273; thence along said North line run South 89056'55" East, 443.00 feet to
a set iron pin with Survey Cap #LS 4273; thence South 00026'50" West for
490,08 feet to the Point of Beginning; being in the Southeast % of the Northeast
% of Section 12, Township 51 South, Range 26 East Collier County Florida.
AND Parcel 3:
TOGETHER WITH A Non-exclusive access easement for the benefit of Parcel 1
over and across the Southerly thirty (30) feet of the following described
property:
Exhibit "B"
Agenda Item No. 10C
April 14, 2009
Page 11 of 33
Commencing at the Southeast corner of Section 12, Township 51 south Range
26 East, Collier Count, Florida; thence along the East line of said Section 12,
North 00011'20" East, 2743,15 fee to the East 114 corner of said Section 12;
thence continue along said East line of Section12, North 00027'50" East, 894.35
feet for a Place of Beginning; thence North 89056'55" West, 443,00 feet; thence
North 00034'06" East, 490.97 feet; thence South 89056'55" East, 443.00 feet to
the East line of sais Section 12; thence along said East line of Section 12 South
00027'50" West 490.97 feet to the Place of Beginning; Being in the Southeast
quarter of the Northeast quarter of Section 12, Township 51 South, Range 26
East, Collier County, Florida.
AND
The West V2 of the East V2 of the East V2 of the Northwest 114 of the Northeast
114 of Section 12, Township 51, South, Range 26 East excepting the North 30 feet
thereof, which is reserved for road purposes, and The East '12 of the East V2 of
the East V2 of the Northwest 114 of the Northeast 114 of Section 12, Township 51,
South, Range 26 East, excepting the North 30 feet thereof, which is reserved for
road purposes, of the Public Records of Collier County, Florida.
Leaal Description for ABC Liauors Inc.
PROPERlY DESCRIPTION A PARCEL OF LAND LYING IN THE NORTH WEST
QUARTER OF SECTION 3, TOWNSHIP 51 SOUTH, RANGE 26 EAST,COLLIER
COUNIY FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS.
COMMENCE AT THE NORTHEAST CORNER OF THE NORTHWEST
QUARTER OF SECTION 3, TOWNSHIP 51 SOUTH, RANGE 26 EAST,
COLLIER COUNTY FLORIDA, THENCE RUN N 89 DEGREES 23' 53" W,
ALONG THE NORTH LINE OF THE NORTHWEST QUARTER OF SAID
SECTION 3, FOR A DISTANCE OF 324.27 FEET TO A POINT ON THE
EASTERLY RIGHT OF WAY LINE OF COUNTY ROAD 951 (C.R.. 951);
THENCE RUN S 35 DEGREES 40'08" W, ALONG SAID EASTERLY RIGHT OF
WAY LINE, FOR A DISTANCE OF 887.72 FEET TO THE POINT OF
BEGINNING OF THE PARCEL OF LAND HEREIN DESCRIBED; THENCE RUN
S 54 DEGREES 20'16" E FOR A DISTANCE OF 439 .95FEET; THENCE RUN
S35 DEGREES 39'44"W FOR A DISTANCE OF 190.00 FEET; THENCE RUN N
54 DEGREES 20'16" W FOR A DISTANCE OF 151.29 FEET THENCE RUN N
02 DEGREES 12'01" E FOR A DISTANCE OF 24.75 FEET; THENCE RUN N 54
DEGREES 33'42" W FOR A DISTANCE OF 201.10 FEET; THENCE RUN N 35
DEGREES 40'36"E FOR A DISTANCE OF 18.22 FEET; THENCE RUN N 54
DEGREES 19'24" W FOR A DISTANCE OF 73.95 FEET TO A POINT ON SAID
EASTERLY RIGHT OF WAY LINE OF COUNTY ROAD 951; THENCE RUN N
35 DEGREES 40'08" E, ALONG SAID EASTERLY RIGHT OF WAY FOR A
DISTANCE OF 148.39 FEET TO THE POINT OF BEGINNING OF THE PARCEL
OF LAND DESCRIBED HEREIN.
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EXHIBIT E
Agenda Item No. 10C
April 14, 2009
Page 13 of 33
DEVELOPER CONTRIBUTION AGREEMENT
ROAD IMPACT FEE LEDGER
Sample Impact fee ledger
I Beginning Balancel'
DATE PERMIT # CREDIT AMT BALANCE COMMENTS
Beoinnino Balance'
*Each Developer shall receive Road Impact Fee Credits as set forth in attached Exhibit "D"
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Agenda Item No. 10C
(""'\ ~riI14, 2009
~ ~m e ~€l5 of 33
Consulting Group
Technical Memorandum
Date:
Re:
Nick Casalanguida, Director, Collier County
Transportation Planning
Reed Jarvi, P.E.
Pramod Choudhary, P.E., P.T.O.E., CH2MHiII, Consultant to the
Collier County Transportation Planning Deparbnent
Eric Strickland, P.E., KRG Development, LLC
4/3/2009
US 41 DCA Consortium
To:
From:
CC:
This is a technical memorandum that will review and make recommendations in regards to
the traffic and service volume of the roadway link of US 41 from Collier Boulevard (SR 951)
to San Marco Drive (CR 92). In accordance with the latest concurrency segment table dated
April], 2009, the Capacity or Maximum Service Volume for this roadway segment is 1,075
vehicles per hour (vph), the PM Peak Hour volume is 672 vph and the trip bank is 474 vph.
In accordance with the concurrency table, the total traffic on this link is 1,146 vph which is
71 vph over capacity (V/C = 1.07).
The trip bank infonnation within the Collier County Transportation Concurrency
Management System (TCMS) for this link was reviewed with staff the morning of April 2,
2009. Several issues were noted during this review that leads us to believe the trip bank
information needs to be revised within the TCMS, Of these, we have been able to resolve
two of the items with staff. First, it was noted that all the PM Peak Hour Directional Traffic
for the Fiddler's Creek project was coded to the link of US 4] east of SR 951 and none was
coded to SR 951 from the Fiddler's Creek access to US 41. It is felt that at least 40% of the
Fiddler's Creek trip bank traffic should be coded to SR 951. The trip bank traffic currently
attributed to Fiddler's Creek is 269 vph. Therefore, 108 vph (40%) should be coded from
US 41 to SR 951. In addition, it was noted that for the Trails Ridge Subdivision (Habitat for
3365 Woods Edge Circle. Unit 101. Bonita Springs, Florida 34134
Technical Memorandum
US41 DCA
April 2, 2009
Page 2
Agenda Item NO.1 OC
April 14, 2009
[26 of 33
Humanity development to the east of the new Wal-Mart), 0% of the project was completed
in accordance with the TCMS. From discussion with the Director of Construction for
Habitat for Humanity, approximately 80% of the subdivision is occupied with the remaining
20% currently under construction. Therefore, the trip bank attributable for the Trails Ridge
Subdivision should be reduced by 80% from 13 vph to 3 vph on this link.
Lastly, the current PM Peak Hour traffic was reviewed. When staff completed the Peak
Hour traffic calculation for the 2008 AUIR, they used the year 2007 3'd and 4th quarter traffic
count along with the year 2008 I ~ and 2nd quarter traffic counts. These counts were
translated to Annual Average Daily Traffic (AADT) by using the appropriate FDOT
Seasonal Factor (SF) then converted to PM Peak Hour traffic by using the appropriate K and
D factors. For this link, Collier County calculated the 2008 PM Peak Hour traffic to be 672
vph. Since the 2008 AUIR was approved in OctoberlNovember 2008 the 3'd and 4th quarter
traffic counts were not available to Collier County staff. Using the same methodology as
Collier County staff, but using all four quarters of 2008 traffic counts, the PM Peak Hour
traffic calculates to approximately 598 vph (see attached calculation sheet). Additionally, the
US 41 DCA consortium completed a 72 hour traffic count the week of March 16, 2009.
Using this count along with 2nd, 3'd and 4th quarters of 2008, the PM Peak Hour traffic
calculates to 604 vph or if just the March 2009 count is used, the PM Peak Hour traffic
calculates to 595 vph. Within the 72 hour count, there were actually four (4) PM peak hour
periods counted (see attached). When these four counts were averaged, the PM Peak Hour
was calculated to be 587 vph. This data was corrected to a PM Peak Season Peak Hour
count by utilizing the FOOT PSCF factor of 0.95, which changes the PM Peak Hour count to
558 vph. From this analysis, the PM Peak Hour on this link of US 41 should be between 558
and 604 vph. If we average these four methods, the existing traffic on this link of US 41
should be reduced from the 672 vph of the 2008 AUIR and the recent Concurrency Segment
table to 589 vph.
In summary, currently the Concurrency Segment tables show that with a capacity of 1,075
vph, a current PM Peak Hour traffic volun1e of 672 vph and a trip bank of 474 vph, the link
C:\Docs\Projects\2009\R9007-US 41 DCA\April 2009 DCA\R9007 Transportation Memorandum 2009-04-02_doc 2
Technical Memorandum
US41 DCA
April 2, 2009
Page 3
Agenda Item NO.1 OC
April 14, 2009
nOf33
of US 41 is 71 vph over capacity. From the above analysis, the capacity of this link of US 41
should be 1,075 vph, the PM Peak Hour traffic volume should be 589 vph and the trip bank
should be reduced 118 vph to 356 vph. The concurrency analysis will then show total traffic
volume of945 vph with a reserve or under capacity volume of 130 vph (V/C = 0.88).
In accordance with the Operational Analysis report completed as a separate document, the
US 41 DCA Consortium westbound traffic at the US 41/SR 951 intersection is 107 vph in
the PM Peak Hour. Therefore, the projected total traffic (current traffic, trip bank and project
traffic) with the US 41 DCA Consortium traffic is 1,052 vph (V/C = 0.98) and the US 41
DCA Consortium development projects are within the requirements of the Collier County
Transportation Concurrency Management System for this roadway link of US 4].
End ofMenwrandum
Attachments:
I) Analysis of Count Sta 608, US 41 east ofCR 951
2) Peak Hour Traffic westbound on US 41 west of Trail Ridge
C:\Docs\Projects\2009\R9007-US 41 DCA\.A.pri12009 DCA\R9007 Transportation Memorandum 2009-04-02.doc 3
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Agenda Item NO.1 OC
April 14, 2009
Page 20 of 33
DEVELOPER AGREEMENT
US 41 DEVELOPERS' CONSORTlLM III
THIS DEVELOPER AGREEMENT (hereinafter referred to as the "Agreement") is made and
entered into this of April, 2009, to be effective as of the date upon which this Agreement is
approved by the Board of County Commissioners of Collier County (the "Effective Date"), by and
among KITE EAGLE CREEK II, LLC, an Indiana limited liability company, KRG EAGLE CREEK IV ,
LLC, an Indiana limited liability company, KRG 951 & 41, LLC, an Indiana limited liability
company, ABC LIQUORS, INC., a Florida corporation, REALTYNET REAL ESTATE, LLC, a Florida
limited liability company, and HABITAT FOR HUMANITY OF COLLIER COUNTY, INC., a Florida non-
profit corporation, each a "Developer" and, collectively, the "Consortium Developers" or the .1Consortium")
and COLLIER COUNTY, FLORIDA, a political subdivision of the State of Florida (hereinafter referred
to as "County"), All capitalized terms not defined herein shall have the same meaning as set forth in
Ordinance No. 2001-13, the Collier County Consolidated Impact Fee Ordinance, as amended,
RECITALS:
WHEREAS, the Consortium Developers each own or control portions of the development
projects (each a "Development" and collectively, the "Developments"), identified graphically in
Exhibit "A" and by legal descriptions in Exhibit "B" and located in unincorporated Collier County,
Florida; and
WHEREAS, LDC Section 1O.02.07.CA. provides that "Upon approval by the Board of
County Commissioners, any applicant shall enter into an enforceable development agreement with
Collier County pursuant to the provisions of F.S. ~~163.3220--163.3242 or other agreement
acceptable to the Board of County Commissioners, in conjunction with the approval of a
development order and/or a certificate of public facility adequacy. The effect of the development
agreement shall be to bind the parties pursuant to the terms and conditions of the development
agreement and the certificate of public facility adequacy in order to insure that adequate public
facilities are available to serve the proposed development concurrent with when the impacts of the
development occur on the public facilities;" and
WHEREAS, the Consortium Developers are wish to enter into this Agreement as they are
presently unable to move forward with these Developments due to concurrency constraints at and
around the intersection of CR Route 951 and SR Route 41 ; and
WHEREAS, the County is willing to enter into this Agreement in order to help fund and
accelerate the design, permitting, construction and right-of-way acquisition necessary for the at
grade improvement at the intersection of US41 and SR-CR951 that would also be the footprint for
the ultimate grade separated improvement; and
WHEREAS, it is the intent of this Agreement to grant to each Developer vested concurrency
rights with respect to the Development owned or controlled by it, in exchange for certain
commitments set forth below by the Consortium Developers to help the County fund all costs
associated with the design, permitting, land acquisition and construction for the at grade intersection
improvements at the intersection of CR Route 951 and SR Route 41, as generally depicted on the
Project Overview Map attached as Exhibit "C" (the "Road Project" or "Proposed Plan"); and
DCA US Consortium 2-23-09
-1-
Agenda Item No.1 OC
April 14. 2009
Page 21 of 33
WHEREAS, the Transportation Administrator of the County has recommended to the Board
of County Commissioners that the Road Project is in the conformity with the contemplated
improvements and additions to the County's transportation network and is consistent with the
County's transportation concurrency requirements; and
WHEREAS, after reasoned consideration by the Board of County Commissioners, the Board
[mds and reaffirms that:
a. The Proposed Plan is in conformity with the contemplated improvements and
additions to the County's transportation system;
b. The Proposed Plan, viewed in conjunction with other eXlstmg or other
proposed plans, including those from other developers, will not adversely impact the cash
flow or liquidity of the County's road impact fee trust accounts in such a way as to frustrate
or interfere with other planned or ongoing growth-necessitated capital improvements and
additions to the County's transportation system; and
c. The Proposed Plan is consistent with both the public interest and with the
comprehensive plan, the Long Range Transportation Plan and complies with the
requirements of the Collier County Consolidated Impact Fee Ordinance.
WITNESSETH
NOW, THEREFORE, in consideration of Ten Dollars (10.00) and other good and valuable
consideration exchanged amongst the parties, and in consideration of the covenants contained herein,
the parties agree as follows:
I. . All of the above RECITALS are true and correct and are hereby expressly
incorporated herein by reference as if set forth fully below.
2. The County agrees that it will provide a PD&E reevaluation, design, permit, acquire
right-of-way and construct the at grade improvement at the intersection ofUS41 and SR-CR95I that
would also be the footprint for the ultimate grade separated improvement as shown on Exhibit "C"
(the "Road Project") with Consortium Developers committed advanced impact fee funds of
$8,265,058.75 and FDOT committed funds of $8,357,718. It is understood by all parties that this
Project is subject to FDOT funding and approval, and requires an acceptance of the reevaluated
PD&E, all permitting approvals, and the inclusion of this Project into the County's five-year plan.
Construction is expected to begin summer of 20 13. If FDOT funding or approval is not received, the
County, in its sole right and discretion, is entitled to scale back or otherwise amend the Road Project.
3. The County will install Intelligent Traffic Management Systems (ITMS) signalization
ofthe following traffic signals with the Project.
a. SR9511US-41
b. SR951IWalmart
c. SR95 I /Manatee Road
DCA US Consortium 2-23-09
- 2 -
Agenda Item No.1 OC
April 14. 2009
Page 22 of 33
4. Habitat will provide each homesite in its Regal Acres Developments with an annual
CAT pass for a five year period prior to the certificate of occupancy of each homesite.
5. KRG Eagle Creek II, LLC and KRG 951 & 41, LLC shall provide all employees
working more than twenty hours per week at the Developments with an annual CA T pass for a five
year period after the issuance of each certificate of occupancy and prior to opening.
6. Within one hundred twenty (120) days of request by the County, KRG 951 & 41 LLC
shall convey to the County a right-of-way parcel in fee simple, free and clear of all liens and
encumbrances, by statutory warranty deed( s) approved by the County Attorney, suitable for
recording. KRG 951 & 41 LLC shall pay all costs to County associated with this conveyance,
including recording fees. The right-of-way dedication along SR-951 shall be the minimum amount
needed for the construction and widening approaching the intersection of SR-95 I and USAI per
Stanley Consultants Exhibit "C". KRG 951 & 41 LLC agree to provide at their sole cost and
expense any temporary construction and slope easements necessary to facilitate the construction.
The width of the right way dedication shall not exceed 15 ft. KRG 951 & 41 LLC shall be
responsible at their sole cost and expense for the removal of any improvements made by KRG 951 &
41 LLC within the parcel prior to dedication.
7. Not later than the business day following the Effective Date, the Consortium
Developers shall pay to the County in cash the sum of $3,000,000. The County will use these funds
to proceed with a PD&E update, design, and right of way acquisition for the Project.
8. As set forth in Exhibit "D" (the "Milestone Schedule"), the Consortium Developers
shall pay County an additional $5,265,058.75 in Anticipated Road Impact Fees towards the Project.
Impact Fees must be paid in accordance with the Collier County Consolidated Impact Fee
Ordinance, however, each Developer shall be required to fully pay to the County its Anticipated
Road Impact Fee Amount (or the applicable portion thereof) no later than the dates set forth in the
Milestone Schedule. If Road Impact Fees are increased, then the amount to be paid shall be based
on the then current road impact fee rate. Each Developer's actual payment for Road Impact Fees
shall be credited against the Anticipated Road Impact Fee Amount. If Road Impact Fees are reduced
or eliminated entirely, no credit will be granted against the Anticipated Road Impact Fee Amount for
such reduction. Nothing contained herein or in the Milestone Schedule shall prohibit a Developer
from paying its Anticipated Road Impact Fee Amount or portions thereof earlier than the dates set
forth in the Milestone Schedule or prohibit a Developer from receiving certificates of occupancy,
site development plan approvals, plat approvals or building permits in connection with such early
payment.
9. As security for each Developer's payment of its Anticipated Road Impact Fee
Amount, each Developer (other than Developers making the initial payment contemplated in Section
7 above) hereby submits to the County a payment bond, letter of credit or other payment security,
each of which is acceptable to and hereby approved by the County in the amount of its Anticipated
Road Impact Fee Amount totaling $5,265,058.75 no later than the business day following the
effective date of this Agreement. Upon payment of the Anticipated Road Impact Fee Amount by a
Developer, that Developer's letter of credit payment bond or other payment security shall be
returned to the Developer.
10. Ifthe Consortium Developers fail to submit payment bonds, letters of credit, or other
approved payment security totaling in the aggregate $5,265,058.75 by the close of business of the
DCA US Consortium 2-2)--{J9
- 3-
Agenda Item No.1 OC
April 14. 2009
Page 23 of 33
first business day following the effective date of this Agreement, the County shall terminate this
Agreement, in which event, the $3,000,000 cash payment and any other cash payment made by a
Developer shall be returned within thirty (30) days by the County to the Developer that paid the
same, the payment bonds, letters of credit and other payment security (if applicable) that were
submitted by the Consortium Developers shall be released within thirty (30) days by the County, this
Agreement shall be null and void, and the parties shall be relieved from any and all further
obligations hereunder which do not survive termination of this Agreement.
II. This is a form of "Pay and Go" Agreement. The County will be utilizing all of the
$8,265,058.75 to help fund the Road Project, which Project is being done at the Consortium
Developers' request. Upon commencement of the Road Project, the $8,265,058.75 shall become
nonrefundable, and thereafter in no event will the County be responsible for returning any part of the
$8,265,058.75, including but not limited to any Developer's failure or inability to utilize all or a
portion of their Impact Fee Credits. Following each Developer's submittal of cash payment, the
payment bond, letter of credit, or other approved payment security for its Anticipated Road Impact
Fee Amount, as applicable, (1) each Developer shall receive Road Impact Fee Credits for the Total
Anticipated Road Impact Fee Amount as set forth in Exhibit "0". A sample copy of the Impact Fee
Ledger, utilized by the County to administer Road Impact Fee Credits for each Developer is attached
as Exhibit "E"; and (2) each Developer shall also receive Certificates of Adequate Public Facilities
("Certificates") from the County which immediately and fully vest each of the respective
Consortium Developers with the right to roadway capacity in connection with their respective
Developments as set forth in the Milestone Schedule; and (3) each Developer's Development shall
be entitled to obtain certificates of occupancy, site development plan approvals, plat approvals and
building permits for its Development (or portions thereof, as applicable) subject to the normal
permitting and review process. Issuance of these Certificates, however, will not relieve the
respective Developers from their respective obligation to pay road impact fees for their respective
Developments. The credit for Road Impact Fees identified herein shall run with each of the
respective Developments and shall be reduced by the entiTe amount of each Road Impact Fee due for
each Building Permit issued thereon until the respective 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 the respective
Developer, its successors and assigns are responsible in connection with the development of the
respective Developer's Development.. It is expressly understood that the Impact Fee Credits will be
utilized in the order in which the Building Permits are reviewed by the Impact Fee Administration,
irrespective of whether Developer assigns all or part of its respective Development. The County will
apply all road impact fees paid for any portion of a Development whether paid by the respective
Developer or another developer towards the Anticipated Road Impact Fee Amount.
12. If a Developer fails to pay its Anticipated Road Impact Fee Amount (or a portion
thereof) as required herein and such failure continues for a period of thirty (30) days after written
notice of such failure from the County, the County, as its sole remedy hereunder shall have the right
to draw upon such defaulting Developer's letter of credit or exercise the County's rights under the
payment bond or other payment security submitted by such defaulting Developer in order to fund
such Developer's Anticipated Road Impact Fee Amount (or the applicable portion thereof then due
and payable hy the Developer). In no event shall a default by one of the Consortium Developers of
DCA US Consortium 2-23-09
-4 -
Agenda Item NO.1 OC
April 14, 2009
Page 24 of 33
its obligations under this Agreement cause the other Consortium Developers to be in default of this
Agreement.
Le!!al Matters
13. This Agreement shall not be constructed or characterized as a development agreement
under the Florida Local Government Development Agreement Act.
14. 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. Upon giving
written notice to the County, each of the Developers may assign all or part of the Road Impact Fee
Credits to which they are entitled utilizing the County's then current form of assignment, to
successor owners of all of part of the Developments, or as otherwise provided for in the Collier
County Consolidated Impact Fee Ordinance. A Consortium Developer may transfer or assign all or
a portion of the approved density or square footage to another project on the same roadway r that
directly impacts the intersection ofUS41 with SR-CR951 as shown on Exhibit "C", whether owned
by that Consortium Developer or owned by another developer.
15. Developer acknowledges that the failure of this Agreement to address any permit,
condition, term or restriction shall not relieve either the applicant or owner or its successors or
assigns, of the necessity of complying with any law, ordinance rule or regulation governing said
permitting requirements, conditions, terms or restrictions.
] 6, In the event state or federal laws are enacted after the execution of this Agreement,
which are applicable to and preclude in whole or in part the parties' compliance with the terms of
this Agreement, then in such event this Agreement shall be modified or revoked as is necessary to
comply with such laws, in a many which best reflects the intent of this Agreement.
17, Except as otherwise provided herein, this Agreement shall only be amended by
mutual written consent of the parties hereto or by their successors in interest. All notices and other
communications required or permitted hereunder shall be in writing and shall be sent by Certified
Mail, return receipt requested, or by a nationally recognized overnight delivery service, and
addressed to the parties at the addresses set forth in Schedule I to this Agreement, or such other
address of which a party hereto shall give notice. Notice shall be deemed to have been given on the
next successive business day to the date of the courier, if sent by nationally recognized overnight
delivery service, or if delivered by Certified Mail, upon actual receipt.
18, Each 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 Effective Date.
Developers shall pay all costs of recording this Agreement. The County shall provide a copy of the
recorded document to the Developers upon request.
19. In the event of any dispute under this Agreement, the parties shall attempt to resolve
such dispute first by means of the County's then-current Alternative Dispute Resolution Procedure,
if any. Following the conclusion of such procedure, if any, either party may file an action for
injunctive relief in the Circuit Court of Collier County to enforce the terms of this Agreement, and
remedy being cumulative with any and all other remedies available to the parties for the enforcement
of the Agreement.
DCA us Consortium 2-2]..{J9
- 5-
Agenda Item No. 10C
April 14, 2009
Page 25 of 33
20. This Agreement constitutes the entire agreement between the County and the parties
with respect to the activities noted herein and supersedes and takes the place of any and all previous
agreements entered into between the parties hereto relating to the transactions contemplated herein,
All prior representations, undertakings, and agreements by or between the parties hereto with respect
to the subject matter of this Agreement are merged into, and expressed in, this Agreement, and any
and all prior representations, undertakings, and agreements by and between such parties with respect
thereto hereby are canceled.
2 L The individuals signing this Agreement on behalf of each party represents and
warrants that he or she has the full power and authority to execute this Agreement for the party upon
whose behalf he or she is executing same and that upon such execution, such party shall be fully
bound by each and every provision of this Agreement.
22. Nothing contained herein shall be deemed or construed to create between or among
any of the parties any joint venture or partnership nor otherwise grant to one another the right,
authority or power to bind any other party hereto to any agreement whatsoever.
23. This Agreement may be executed in separate counterparts, each of which when so
executed shall be an original, but all of which together shall constitute but one and the same
instrument.
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
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
By:
By:
, Deputy Clerk
DONNA FIALA, Chairman
Approved as to form
and legal sufficiency:
Jeffrey A. Klatzkow
County Attorney
REMAINING SIGNATURE PAGES TO FOLLOW
DCA US Consortium 2-23-09
- 6-
Agenda Item NO.1 OC
April 14, 2009
Page 26 of 33
SIGNATURE PAGE TO
AMENDED DEVELOPER CONTRIBUTION AGREEMENT
US 41 DEVELOPERS CONSORTIUM III
WITNESSES:
KITE EAGLE CREEK II, LLC, an Indiana
limited liability company
Signature
By:
Name:
Printed Name
Title:
of Kite Realty Group Trust, the General
Partner of Kite Realty Group, L.P" the
Managing Member of KITE EAGLE CREEK
II, LLC .
Signature
Printed Name
Dated:
STATE OF
COUNTY OF
)
) SSe
)
Before, a Notary Public in and for said County and State, personally appeared
. the of Kite Realty Group
Trust, the General Partner of Kite Realty Group, L.P., the Managing Member of KITE EAGLE
CREEK II, LLC, an Indiana limited liability company. who acknowledged the execution of the
foregoing instrument as such officer for and on behalf of said limited liability company.
Witness my hand and Notarial Seal this _ day of
.2009.
(signature)
(printed name)
Notary Public
My Commission Expires:
County of Residence:
- 7-
Agenda Item No. 10C
April 14, 2009
Page 27 of 33
SIGNATURE PAGE TO
AMENDED DEVELOPER CONTRIBUTION AGREEMENT
US 41 DEVELOPERS CONSORTIUM III
WITNESSES:
KRG EAGLE CREEK IV, LLC, an Indiana
limited liability company
By:
Signature
Name:
Printed Name
Title:
of Kite Realty Group Trust, the General
Partner of Kite Realty Group, L.P., the
Managing Member of KRG EAGLE CREEK
IV, LLC
Signature
Printed Name
Dated:
STATE OF
COUNTY OF
)
) SS:
)
Before, a Notary Public m and for said County and State, personally appeared
, the of Kite Realty Group
Trust, the General Partner of Kite Realty Group, L.P" the Managing Member of KRG EAGLE
CREEK IV, LLC, an Indiana limited liability company, who acknowledged the execution of the
foregoing instrument as such officer for and on behalf of said limited liability company,
Witness my hand and Notarial Seal this _ day of
,2009.
(signature)
(printed name)
Notary Public
My Commission Expires:
County of Residence:
- 8-
Agenda Item No.1 OC
April 14. 2009
Page 28 of 33
SIGNATURE PAGE TO
AMENDED DEVELOPER CONTRIBUTION AGREEMENT
US 41 DEVELOPERS CONSORTIUM III
WITNESSES:
KRG 951 & 41, LLC, an Indiana limited
liability company
Signature
By:
Name:
Printed Name
Title:
of Kite Realty Group Trust, the General
Partner of Kite Realty Group, L.P., the
Managing Member of KRG 951 & 41,
LLC
Signature
Printed Name
Dated:
STATE OF
)
) SS:
)
COUNTY OF
Before, a Notary Public in and for said County and State, personally appeared
, the Kite Realty Group Trust,
the General Partner of Kite Realty Group, L.P., the Managing Member of KRG 951 & 41, LLC,
an Indiana limited liability company, who acknowledged the execution of the foregoing
instrument as such officer for and on behalf of said limited liability company.
Witness my hand and Notarial Seal this _ day of
,2009.
(signature)
(printed name)
Notary Public
My Commission Expires:
County of Residence:
- 9-
Agenda Item No. 1 DC
April 14, 2009
Page 29 of 33
SIGNATURE PAGE TO
AMENDED DEVELOPER CONTRIBUTION AGREEMENT
US 41 DEVELOPERS CONSORTIUM III
WITNESSES:
ABC LIQUORS, 1Nc., a Florida corporation
By:
Signature
Name:
Printed Name
Title:
Dated:
Signature
Printed Name
STATE OF
)
) SS:
)
COUNTY OF
Before, a Notary Public In and for said County and State, personally appeared
, the of ABC LIQUORS, INC., a
Florida corporation, who acknowledged the execution of the foregoing instrument as such officer
for and on behalf of said limited liability company.
Witness my hand and Notarial Seal this _ day of
,2009.
(signature)
(printed name)
Notary Public
My Commission Expires:
County of Residence:
- 10-
Agenda Item NO.1 OC
April 14, 2009
Page 30 of 33
SIGNATURE PAGE TO
AMENDED DEVELOPER CONTRIBUTION AGREEMENT
US 41 DEVELOPERS CONSORTIUM III
WITNESSES:
REALTYNET REAL ESTATE, LLC, a
Florida limited liability company
Signature
By:
Name:
Printed Name
Title:
Dated:
Signature
Printed Name
STATE OF
COUNTY OF
)
) SS:
)
Before, a Notary Public m and for said County and State, personally appeared
, the of REAL TvNET REAL
ESTATE, LLC, a Florida limited liability company, who acknowledged the execution of the
foregoing instrument as such officer for and on behalf of said limited liability company.
Witness my hand and Notarial Seal this _ day of
,2009.
(signature)
(printed name)
Notary Public
My Commission Expires:
County of Residence:
- 11-
Agenda Item No. 10C
April 14, 2009
Page 31 of 33
SIGNATURE PAGE TO
AMENDED DEVELOPER CONTRIBUTION AGREEMENT
US 41 DEVELOPERS CONSORTIUM m
WI1NESSES:
HABITAT FOR HUMANITY OF COLLIER
COUNTY, INC., a Florida Non-Profit
Corporation
Signature
By:
Name: Samuel J. Durso. MD.
Printed Name
Title: President
Signature
Dated:
Printed Name
STATE OF
)
) SS:
)
COUNTY OF
Before, a Notary Public in and for said County and State, personally appeared Samuel J.
Durso, MD., the President of HABITAT FOR HUMANITY OF COLLIER COUNTY, INC., a Florida
Non-Profit Corporation, who acknowledged tbe execution of the foregoing instrument as such
officer for and on behalf of said limited liability company.
Witness my hand and Notarial Seal this _ day of
,2009.
(signature)
(printed name)
Notary Public
My Commission Expires:
County of Residence:
- 12-
SCHEDULE I
Notice Addresses
Kite Eagle Creek II, LLC
c/o Kite Realty Group
Attn: Eric Strickland
30 South Meridian, Suite 1100
Indianapolis, TN 46204
With a Copy to: Kite Realty Group
Attn: Robert G. Solloway, Esq.
30 South Meridian, Suite 1100
Indianapolis, IN 46204
KRG 951 & 41, LLC
c/o Kite Realty Group
Attn: Eric Strickland
30 South Meridian, Suite 1100
Indianapolis, TN 46204
With a Copy to: Kite Realty Group
Attn: Robert G. Solloway, Esq.
30 South Meridian, Suite 1100
Indianapolis, TN 46204
KRG Eagle Creek IV, LLC
c/o Kite Realty Group
Attn: Eric Strickland
30 South Meridian, Suite 1100
Indianapolis, TN 46204
\\fith a Copy to: Kite Realty Group
Attn: Robert G. Solloway, Esq.
30 South Meridian, Suite 1100
Indianapolis, IN 46204
ABC Liquors, Inc.
Attn: Tom Hartmann
P.O. Box 593688
Orlando, FL 32859Habitat for Humanity of Collier County, Inc.
Attn: Samuel J. Durso
1145 Tamiami Trail East
Naples, FL 34113
Rea1tyNet Real Estate, LLC
Attn: Cory Maile
1330 Forrest Court
Marco Island, FL 34145
- 13 -
Agenda Item No. 10C
April 14, 2009
Page 32 of 33
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