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Agenda 04/14/2009 Item #16K 4 Agenda Item No. 16K4 April 14. 2009 Page 1 of 39 EXECUTIVE SUMMARY Recommendation that the Board of County Commissioners accept a Settlement Offer in the sum of $840,125.04, and authorize the Chairman to execute a Settlement Agreement, Release and Satisfaction, a Release of Lis Pendens, and a Conveyance of Contract Rights with and to LEHMAN HOUSING TAX CREDIT FUND VII, L.P., that settles in full the litigation styled as Board of County Commissioners v. CEI/Kensington, et al. 08-07625-CA, now pending in the Circuit Court for the Twentieth Judicial Circuit in and for Collier County, Florida, direct all the documents to be recorded in the Official Records of Collier County, Florida, and direct the County Attorney to take whatever additional action is necessary to implement this Settlement. OBJECTIVE: To settle a suit brought by Collier County with respect to obtaining payment of $666,675.28, plus interest, in past-due deferred impact fees owed by the Saddlebrook Phase I affordable housing development for a cash settlement of all claims in the amount of$835,125.04 plus $5,000 towards the County's attorneys' fees and costs. CONSIDERATIONS: On December 16, 1997 the Board of County Commissioners entered into an Agreement for with CEI/Kensington, Ltd., for the deferral of impact fees in the amount of $666,675.28 for 140 affordable rental units at SaddlebrookiPelican Point Phase I. In accordance with the Deferral Agreement, the tenn of the deferral was for 6 years from date of issuance of the first building pennit, which was October 9, 1998. This Agreement was duly recorded and became a lien on the subject property, Despite demand, the impact fees were not paid, and on September 23, 2008 the Board authorized the County Attorney to initiate any and all legal action including, but not limited to, lien foreclosure. A copy of the September 23, 2008 Executive Summary, back-up and transcript is included with this item, Suit was filed on October I, 2008 seeking payment for the impact fees due ($666.675.28) and foreclosure of the County's lien on the subject property. Nine defendants were named and served, including Lehman Brothers, who was and is currently in Chapter I 1 Bankruptcy. An equity partner in CEI/Kensington, Ltd., LEHMAN HOUSING TAX CREDIT FUND VII, L.P., who was not a named defendant, came forward, and after negotiations with the County Attorney, made an offer of cash settlement of $835,125,04 plus $5,000.00 towards attorneys' fees and costs. The County Attorney has been assured that a check in this amount will be forwarded to him no later than the Friday beforc this Board meeting. If the check is not receiyed, this item will be continued. Including the legal rate of interest (which has varied between 7% and 1 1 % from 2004 through 2009), if taken to final judgment, as of today's datc thc total sum due the County is $1,040,775.22. It is the opinion of the County Anorney, howeyer, that accepting the sum certain of $840,125.04 (which calculates to a compound interest rate of approximately 5.5% per year on the deferred impact fees since the default date) represents a fair settlement for the County, in that it avoids the County having to complete the foreclosure proccss and attempt to collect the Page I of2 .L\genda Item r'~o_ ~ El!\4 /',pcil 14. 2009 P(Cl~V? 2 'Jf 39 obligation through a Court-ordered auction during these difficult and uncertain economic times. Staff has reviewed and concurs with accepting this offer. FISCAL IMPACT: The County will capture the entirety of the impact fees due plus an additional $168,449.76 in interest, with an additional $5,000.00 towards attorneys' fees and costs, for a total cash inflow to the Impact Fee Trust Accounts in the sum of$840,125.04. GROWTH MANAGEMENT IMPACT: None. LEGAL CONSIDERATIONS: This item is legally sufficient for Board action. This is a regular agenda item requiring simple majority vote. -JAK RECOMMENDATION: That the Board of County Commissioners accept a Settlement Offer in the sum of $840,125.04, and authorize the Chairman to execute a Settlement Agreement, Release and Satisfaction, a Release of Lis Pendens, and a Conveyance of Contract Rights with and to LEHMAN HOUSING TAX CREDIT FUND VII, L.P., that settles in full the litigation styled as Board of County Commissioners v. CEIlKensington, et al. 08-07625-CA, now pending in the Circuit Court for the Twentieth Judicial Circuit in and for Collier County, Florida, direct all the documents to be recorded in the Official Records of Collier County, Florida, and direct the County Attorney to take whateyer additional action is necessary to implement this Settlement. PREPARED BY: Jeffrey A. Klatzkow, County Attorney RECOMMENDATION AGREED TO BY: Amy Patterson, Impact Fee and Economic Development Manager, CDES Page 2 of2 Page 1 of 1 Agenda Item No. 16K4 April 14, 2009 Page 3 of 39 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: Item Summary: 16K4 Meeting Date: Recommendation that the Board of County Commissioners accepts a Settlement Offer in the sum of $840,125.04, and authorize the Chairman to execute a Settlement Agreement, Release and Satisfaction, a Release of Lis Pendens, and a Conveyance of Contract Rights with and to LEHMAN HOUSING TAX CREDIT FUND VII. L P., that settles In full the litigation styled as Board of County Commissioners v, GEl/Kensington, et al. 08-07625-CA, now pending in the Circuit Court for the TWentieth JudicIal Circuit in and for Collier County, Florida, direct alllhe documents to be recorded In the Official Records of Collier County, Flonda, and direct the County Attorney to take whatever additional action is necessary to Implement this Settlement. 4/14/200990000 AM Prepared By Jeff Klatzkow County Attorney Date County Attorney County Attorney Office 4/8/20098:48:19 AM Approved By Jeff Ktatzkow County Attorney Date County Attorney County Attorney Office 4/8/20099:13 AM Approved By Leo E. Ochs, Jr. Board of County Commissioners Deputy County Manager Date County Manager's Office 4/8/2009 9:26 AM . Auenda :t~il1 ~~o. 16f<4 ~ April 14 2009 Page 4 of 39 Aereement Between: Board of County Commissioners of Collier County, Florida, a political subdivision of the State of Florida ("Collier County"). Lehman Housing Tax Credit Fund VII L.P, (the "Fund"), It is agreed as follows: 1, Capitalized terms are defined in Exhibit A, 2. At a Closing on or before April 14, 2009, the Fund will pay Collier County in cash an amount equal to $835,124.04 plus an additional $5,000 towards attorneys' fees and costs. 3, Effectiye at the Closing, Collier County will sign and deliyer to the Fund legal documents sufficient to: a) release all liens against the Property arising under the Impact Fee Agreement; b) discontinue the Impact Fee Action with prejudice; c) convey to the Fund such rights ofCollicr County under the Impact Fee Agreement as Collier County may lawfully convey. 4. Collier County makes no representations or warranties with respect to the rights conveyed or whether the rights conyeyed will be of value to the Fund, However Collier County confirms that effcctive upon receipt of the amount in Section 2, Collier County will haye no further claims against CEI/Kensington under the Impact Fee Agreement or the Impact Fee Action. 5, The Fund recognizes that the terms of this Agreement are not confidential. 6, Each Party makes the representations and warranties on Exhibit B, 7, The terms contained in this Agreement are binding upon the parties, This Agreement shall be governed by the law of the state of Florida without reference to the principles thereof respecting [The Next Page is the Signature Page] I W4455082 Agenda Item No. 16K4 April 14, 2009 Page 5 of 39 conflicts oflaw. This Agreement constitutes the entire understanding ofthe parties. Any amendment to this Agreement must be in writing. Lehman Housing Tax Credit Fund VII L.P. By: LHCI GP VII Inc., General Partner G/f) ~d D P'et'olo.;e Authorized SlgnatOl y By; Accepted: Board of County Commissioners of Collier County, Florida By: Date: s to form & legal sufficiency 80445508,2 ?,(~ei-i.ja item No. i 61<4- - /\priI14.2009 FJS;18 6 'Jf 39 Exhibit A Defined Terms "Agreement" means this agreement between Collier County and the Fund. "CEVKensington" means CEI/Kensington, Ltd., a Florida limited partnership. "Closing" means the date of the payment of the amounts described in Section 2 and the delivery of the documents described in Section 3, "Collier County" means the Board of County Commissioners of Collier County, Florida, a political subdivision of the State of Florida. "Fund" means Lehman Housing Tax Credit Fund VII L.P., a Delaware limited partnership, "Governmental Authority" means any agency, authority, body, board, commission, court, instrumentality, legislature, officer or representative of any nature whatsoeyer of any federal, state, county, district, municipal, city, or other governmental or quasi-governmental unit or political subdivision, and private arbitration panels or dispute resolution bodies having jurisdiction over or affecting a matter involving a party. "Impact Fee Action" means the legal action entitled Board of Co un tv Commissioners of Collier Countv v. CEI/Kensington, et al.. No.: 08-7625-CA, "Impact Fee Agreement" means the agreement executed on December 16, 1997 between Collier County, CEl/Kensington and Colonial Equities, Inc" which is the subject of the Impact Fee Action "Law" means any statute, law, rule, regulation ordinance, command or provision enacted by a legislature, "Order" means any judgment, decree, order, writ, permit, license, ruling or command made by a competent administrative authority. "Property" means the property referenced in the Impact Fee Agreement and the Impact Fee Action, which is owned by CEI Kensington, 804455082 Agenda Item No. 16K4 April 14, 2009 Page 7 of 39 EXHIBIT B Representations and Warranties of Parties Capitalized terms appearing below shall have Ihe meanings ascribed to Ihem in Exhibit A to the Agreement. The Fund represents and warrants to Collier County: I. Organization. The Fund is a limited partnership duly organized, validly existing and in good standing under the laws of its state of formation, with the full corporate power and authority to own and operate its properties and to conduct its business, all as and in the places where such properties are now owned or opcrated or such business is now being conducted. The Fund is duly qualified, licensed or admitted to do business under the laws of the state of its formation, 2, Powers, Absence of Conflicts, Non-Contravention, The Fund has the requisite corporate power and authority to enter into the Agreement and to perform its obligations thereunder. The execution, deliyery and performance by the Fund of the Agreement, the performance by the Fund of its obligations thereunder, and the consummation of the transactions contemplated therein (a) are not in contravention of the terms of its certificate of limited partnership, bylaws or other governing documents, as amended to date, (b) will not result in the yiolation by the Fund of any Law, or Order, of any Goyemmental Authority applicable to the Fund or any of its assets or properties, and (c) do not conflict with or result in any breach or contravention (whether with the giving of notice, the passage of time, or both) of the lerms of (i) any indebtedness or other obligation for money borrowed or owed, or (ii) any contract, commitment or other arrangement (or series of related or similar contracts, commitments or other arrangements taken as a whole) that is material to its operation, 3. Authorization, The execution and delivery of the Agreement and the transaction documents, has been duly and validly authorized, adopted and approyed by all requisite corporate and partner action, The Fund has receiyed (or has no reason to believe it will not receive on or before the Closing, as applicable) all approvals, authorizations and clearances from applicable Goyemmental Authorities, and such other consents, approvals or authorizations as may be required in order to freely and lawfully consummate the transactions contemplated by the Agreement. The Agreement has been duly and yal idly executed and del ivered by the Fund and assuming due authorization, execution and delivery by the other party, constitutes (and, effective upon the Closing, the balance of the transaction documents will constitute) legal, valid and binding obligations of the Fund, enforceable against the Fund in accordance with their terms, except as enforceability may be restricted, limited or delayed by applicable bankruptcy or other laws affecting creditors' rights generally and except as enforceability may be subject to general principles of equity, 4, Aoorovals and Consents, No consent, approyal, authorization or action of, registration Dr filing with, or notice to any Governmental Authority or other public Dr private third party is necessary or required under any of the terms, conditions or provisions of any Law, or any Order of any Governmental Authority or any instrument to which the Fund is a party or 80445508.2 " r :t0iT1 i'~o. 15K4 /\prll ~ 4, 2U09 ?age 8 of 39 the Fund's assets or properties are bound in connection with the execution and delivery by the Fund of the Agreement, the performance by the Fund of its obligations thereunder or the consummation of the transactions contemplated thereby, Collier County represents and warrants to the Fund: 1, Organization - Collier County. Collier County is a political subdivision of the state of Florida and is duly organized, validly existing and in good standing under the laws of the state of Florida, with full power and authority to own and operate its properties and to conduct its business, ail as and in the places where such properties are now owned or operated or such business is now being conducted. Collier County is duly qualified, licensed or admitted to do business under the laws of the state of its formation, 2, Powers. Absence of Conflicts. Non-Contravention. Collier County has the requisite power and authority to entcr into the Agreemcnt and to perform its obligations thereunder, The execution. delivery and performance by Collier County of the Agreement and the transaction documents. the performance by Collier County of its obligations thereunder, and the consummation of the transactions contemplated therein (a) are not in contravention of the terms of its formation documents, bylaws or other goyerning documents, as amended to date. (b) will not result in the violation by Collier County of any Law, or Order, of any Goyernmental Authority applicable to Collier County or any of its assets or properties, and (c) do not conflict with or result in any breach or contrayention (whether with the giving of notice, the passage of time, or both) of the terms of (i) any indebtedness or other obligation for money borrowed or owed, or (ii) any contract, commitment or other arrangement (or series of related or similar contracts, commitments or other arrangements taken as a whole) that is material to its operation. 3, Authorization. The execution and delivery of the Agrecment and the transaction documents, has been duly and validly authorized, adopted and approyed by all requisite corporate and member action, Collier County has received (or has no reason to believe it will not receive on or before the Closing, as applicable) all approvals, authorizations and clcarances from applicable Governmental Authorities, and such other consents, approvals or authorizations (including without limitation those of its board of directors) as may be required in order to freely and lawfully consummate the transactions contemplated by the Agreement. The Agreement has been duly and yalidly executed and delivered by Collier County and assuming due authorization, execution and delivery by the other party, constiMes (and. effectiye upon the Closing, the balance of the transaction documents will constitute) legal, valid and binding obligations of Collier County, enforceable against Collier County in accordancc with their terms, except as enforceability may be restricted, limitcd or delayed by applicable bankruptcy or other laws affecting creditors' rights generally and except as enforceability may be subject to general principles of equity. 4. Approyals and Consents. No consent, approval, authorization or action of, registration or filing with, or notice to any Govcrnmental Authority or other public or private third party is necessary or required under any ofthc terms, conditions or provisions of any Law, or any Order of any Governmental Authority or any instrument to which Collier Count is a party or Collier County's assets or properties are bound in connection with the execution and deliyery 80445508 :: Agenda Item No. 16K4 April 14, 2009 Page 9 of 39 by Collier County of the Agreement, the performance by Collier County of its obligations thereunder or the consummation of the transactions contemplated thereby, . . . 804455082 ,:..genc.ia Item No. 16b\4 .L\priI14.2009 PaJ8 10 of 39 RELEASE AND SATISFACTION COMES NOW the BOARD OF COUNTY COMMISSIONERS, COLLIER COUNTY, FLORIDA, and does hereby waiYe, remise, relinquish, quit claim, and release any and all right to claim any liens, lien rights, or claims or demands of any kind whatsoeyer it may posesses or might have against the real property located in Collier County, Florida, currently owned by, CEI/Kensington, Ltd., a Florida limited liability company, and known as Saddlebrook Village' Phase I, as more particularly described in Exhibit "A" attached hereto and incorporated herein, for deferred impact fees, interest, penalties, attorneys' fees and costs, for consideration, the receipt of which is hereby acknowledged, of the sum of $835,125.04 plus $5,000.00 for attorneys' fees and costs, which is the subject matter of cause No. 08-7625-CA in the Circuit Court of the Twentieth Judicial Circuit in Collier County, Florida and arising in and out of the Agreement for the 100% Deferral of Collier County Impact Fees dated December 16, 1997, recorded in the Official Records of Collier County, Florida in OR Book 2372, Page 2289, Amendment to the Agreement for 100% Deferral of Collier County Impact Fees dated December 4,2002, recorded in Official Records of Collier County, Florida in OR Book 3171, Page ]425, and the Board of County Commissioners, Collier County, Florida, Resolution No. 97-165 dated December 16, 1007. DATED TIllS DAY OF ,2009. BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA By: DONNA FIALA CHAIR.i\1AN ATTEST: DWIGHT E. BROCK, CLERK OF COURTS By: Deputy Clerk Approyed as to legal sufficiency: Jeffrey A. Klatzkow, Esq. Counf.y Attorney LEGAL DESCRIPTION LYING IN SECTION 34, TOWNSHIP 49 SOUTH, RANGE 26 EAST, COLLIER COUNTY FLORIDA. A TRACT OR PARCEL OF LAND SITUATED. IN THE STATE OF FLORIDA. COUNTY OF COLLIER, LYING IN SECTIO~ 34, TOWNSHIP 49 SOUTH, RANGE 26 EAST, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT A NAIL AND DISK MARKING THE SOUTHWEST CORNER OF THE 80UTHEAST QUA.~TER (SE1/4) OF SAID SECTION 34; THENCE ALONG THE WEST LINE OF THE SOUTHEAST QUARTER OF SAID SECTION 34, N.OO'24'26"E. FOR 50,00 FEET TO THE NORTH RIGHT OF WAY OF DAVIS BOUlEVARD; THENCE ALONG THE SAID NORTH RIGHT OF WAY, 8.88'55'22"E FOR 94.33 FEET; THENCE N.OO"49'55"E, FOR 60.92 FEET; THENCE N.14"33'64"E, FOR 153.96 FEET; THENCE N.00"24'2l1"E. FOR 608.86 FEET TO A POINT OF CURVATURE; THENCE NORTHEASTERLY 58.90 FEET ALONG THE ARC A TANGENTIAL CIRCUlAR . CURVE TO THE RIGHT HAVING A RADIUS OF 75,00 FEET, THROUGH A CENTRAL ANGLE OF 45"00'00" AND BEING SUBTENDED H BEARS N.22054'26"E FOR .fH~~~~:45024'26"E, FOR 113, Wl' THENCE S.44 "35'340E, FOR 0 TO THE POINT OF THENCECONTINUES.44035 " THENCE 8.89035'34"E., FO 374 THENCE S.OO021'36"W., FO 5. THENCE N.B8"5T11"W., FO 3 .0 THENCE N.42000'40"W., FO HEREI~ DESCRIBED. G OF THE PARca ~ ~ CONTAINING 1,303 SQUARE F SOHJECI'TO I!ASEMIlNTS AND BEARINGS ARE BASED ON THE WEST EAST QUARTER (8E1/4) OF SECTION 34, TOWNSHIP 49 SOUTH, RANGE 26 EAST, COWER COUNTY, FLORIDA AS BEING N.OO'24'26"E. RWA CONSI,JL TlNG, INC. LAND SURVEYORS AND MAPPERS 8050 NORTH HORSESHOE DRIVE SUITE 270 NAPLES, FLORIDA 34104 (941) 84g.1509 D E: 05113102 LSfI 6278 EXHIBIT "A" Aaenda Item No. 16K4 - ApM114.2009 Page 1 i of 39. G SADO!.EIIROClK WJ.Ai::E PHASE TWO ,AgE:n~ -...- ~ ...... IICUGM1' 1M: N 18"&1.' . 78.07 __I _MY lIC THIS /S NOT A SURVEY SKETCH OF If:GAl DrsCR/PT/ON " E .. 1~ Ie 18 '" ~ ~ w z !!l ! ,. 8 ! z CUR\1!: UNOll< R Cl ..... 1 !I ~~ jl LZ . ~ :>1 UN[ LI 12 U L' U LI L1 SAODl.EBROOK WJ.ACl: PHASE GHE 114>lS BUD. (100' R/W) OF 'DiE SOlJ1HEAST 0lWfIER OF SCCT10H .u D~"S 80UUVAIIll - SA 1M (100' R/W) POC SOllJHltEST CORNER 01' SOIIlIIEAST CIlMRIER s[c1ION J4, IllII'HSHIP .9 SOlIIH. RANOC 28 CAST ~. IWt\ :*~~ ClIENT: THOMAS ECKERTY Tn\t, SADDLEBROOK VIllAGE .. SKETCH OF LEGAL DESCRIPTION :' :.: r:= 01-0191 =- 1 or 2 ~..... EXHIBIT "A" item !\Jo. 16K4 I',p,il 14. 2Cl09 Page '12 of 39, --- ,nu" 1ICnCIHM. ~4ttoUlH,lWDIalMf. CllJUJIRexumR.CMM. fPN:ll'OMDltl\tltallfOlI'-~.......tlCl A I'MCf OR PMCS. 01 UIOIIIUUI!D II" ITAlI CF f"t.OM>>. CXlUNf'rQf 0ClU.B. L1NJINIIC7ION~. ftIWNMll'..IJQUftl.IWIOI2I.....,..AHD....UOPII!~y -..- CCUIENCIIII M ANAlMD IIIIKIMIICIG 1M! IOIJIIMD1' CCl'lHO CI' 'Mi DITMEAST ...... .......IAID IICIIII It; 'n-.cI......._........ m'1HI~CIlJlR1IROF _8IC11ON:N. NlllI'MW'I..~_,.,TD'IMIIlClA1MQH'OIWA.YOl'MW.1OUU!YMD; neaM.ClMtTHlUDI<<IRIMIIIClHJDPWAT.IJI'II1Z'f..FCIt'UIF&1'lOTttEK*n ..- 1Ma..............JI:lf._~ =:::='===\aAPOIII'ala.RVAn.: 1ItIHCINOImUIIIILY_PSII.OGNMlCCF" TMDIH1W.CltQAMQIMI tDM_ItAWaAIWII.IICf_fIE1'lIIQIQHAe&mW.NfCUDF4&"IDIlrMO .....M1IfaDtrAOIlIDIIIIICItIlMlIUl'lC'lrl.ICIII"....1FIl!l': ,.................ftIIIl,..fBn ==~::I:=='=b 1MINIZ~W'W~fal '-.zr....lO,..NQMMRDn'~...TarlYMa -. iMhDl 1HIIa:1UlMI_UlJ....,.IIIH'I'.......,.II.II'WUW~Ra..FIlII'101M1 -..- c:oHDrIMIIIlli............1lIR: 1IAf............ -..c:r1'O........_......_~NlJIlIlIMI'SOIIWJ.Y1MIlONlIO MD" ~'MInIII"\NMI1'1BII :=:=':=-T=~"::=:m.1lCIICH ..l\.A..... --.... INIJ......-........ _tamt.......I*Mlwre.1N .......~.... ,,"1-- z. 'Z. ~ )> "" CD :0 Q. <ll "1J)>;;C 0.::"'0 w ",,~3 CD ~7- ~-+>- ON .........OUj wc7 (C<D~ EXHIBIT" A" Agenda item ~~o. 16K4 April 14. 2009 Pa;;e ~i4 of 39, THIS IS NOT A SURVEY ~ N ssrJS'J4"'r J74.'''' "~'I'IINIEJ l"'OC-lI'C*I'ot~oIlWI' POt - ..., tw ..-c IVW-...tIf_ CI - aIM: ...... Rr laa( II . IN" IMIIEW srr Pal o ow - i ....... ..... . r.2ClO' ., A ;, ~~ iii I~'& ... I~I ~ . 8 ~ ',U5 ACRt'S ~ i k ~ i M H'fKII"W lJ .. u ...( 51' """, 2..2. 2. .(l~ FOR LE:GAL DESCRIPTION .. ~ ..- .. .lHOl.IAS..ECKERTY - acJOf I'" 1- ....,;,;;; fit ,- IIUoC. ..... CIt 01-0111 III. z Z;:.. 2SPHl , , EXHIBIT "A" Agenda Item No. ,16K4 IN TIlE CIRCUIT COURT OF TIlE TWENTIETH JUDICIAL CIRCUIT April 14, 2009 Page 15 of 39 IN AND FOR COLLIER COUNTY, FLORIDA - CIVIL DIVISION BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, a political subdiyision of the State of Florida, Plaintiff, vs. NO.: 08-07625-CA CEI/KENSINGTON, LTD., a Florida Limited Partnership; COLONIAL EQUITIES, INC.; DYNEX CAPITAL, INC.; TEXAS COMMERCE BANK N.A.; CHASE BANK OF TEXAS N.A.; LEHMAN HOUSING LENDING, CORP.; DYNEX COMMERCIAL, INC.; HOUSING FINANCE AUTHORITY OF COLLIER COUNTY, FLORIDA; LEHMAN HOUSING CAPITAL, INC.; LYNN CONSTRUCTION OF NAPLES, INe.; ANY AND ALL UNKNOWN CLAIMANT(S) THAT MAY CLAIM AN INTEREST BY, THROUGH, UNDER OR AGAINST ANY NAMED DEFENDANT(S), WHETHER SAID CLAIMANTS ARE DEVISEES, GRANTEES, OR ASSIGNEES; ANY NUMBER OF TENANTS, the name(s) being fictitious to account for unknown parties in possession of the subject property, Defendants / RELEASE OF LIS PENDENS COMES NOW the Plaintiff BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA (hereinafter the "COUNTY"), and hereby release the Lis Pendens Notice filed in connection with these proceedings and recorded in the Official Records of CoIlier County, Florida on October 2,2008 in OR Book 4397, Page 3524. DATED TillS DA Y OF ,2009. ATTEST: DWIGHT E. BROCK, CLERK OF COURTS BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA By: Deputy Clerk By: DONNA FIALA CHAIRMAN Approyed as to legal sufficiency: Jeffrey A. K1atzkow, Esq. County Attorney Agenda Item No. i6K4 .'<pril 14. 2009 Page 16 of 39 CONVEYANCE AND ASSIGNMENT OF CONTRACT RIGHTS COMES NOW the BOARD OF COUNTY COMMISSIONERS, COLLIER COUNTY, FLORIDA and hereby conyeys, assigns and transfers oyer any and all rights it may now or in the future legally possess in a certain agreement entitled Agreement for 100% Deferral of Collier County lmpact Fees dated on December 16, 1997, and recorded in the Official Records of Collier County, Florida in OR Book 2372, Page 2289, to LEHMAN HOUSING TAX CREDIT FUND VII L.P. The Board of County Commissioners, and Collier County, docs not, in any manner, make any representations or warranties with respect to these rights conveyed or whether the rights conveyed will be of any value to the recipient. DATED THIS DAY OF ,2009. BOARD OF COUNTY COMMISSIONERS COllIER COUNTY, FLORIDA By: DONNA FIALA CHAIRMAN ATTEST: DWIGHT E. BROCK, CLERK OF COURTS By: Deputy Clerk Approyed as to legal sufficiency: Jeffrey A. K1atzkow, Esq. County Attorney manatt I phelps I phillips Agenda Item No. 16K4 April 14. 2009 Peter~ilYIbY!pf 39 Manatt, Phelps & Phillips, LLP Direct Dial: (212) 830-7217 E-mail: po/berg@manatt.com manatt April _, 2009 Client-Matter: 57367-036 BY HAND DELIVERY Thomas C. Baratta, Esq. Office of the County Attorney Collier County Hannon-Turner Building - Eighth Floor 3301 Tamiami Trail East Naples, Florida 34112 Re: Lehman Housing Tax Credit Fund VII L,P.: Agreement with Board of County Commissions of Collier County Dear Mr. Baratta, As you know, this finn represents Lehman Housing Tax Credit Fund VII L.P. (the "Fund"), which has tendered to the Board of County Commissioners of Collier County (the "County") three executed copies of a proposed agreement (the "Agreement") pursuant to which the Fund would pay to the County an aggregate amount equal to $840,124.04 (the "Payment Amount") and the County would conyey certain rights to the Fund and take certain other actions as described in the Agreement. A copy of the Agreement is attached hereto as Exhibit A. We understand that the Agreement is scheduled to be considered at a meeting of the Board of County Commissioners on April 14,2009, and that if the Agreement is approved, the Agreement would be countersigned by the County at the conclusion of sueh meeting. The Agreement contemplates that, upon its execution, (a) the Fund is obligated to tender a check in the amount of the Payment Amount, and (b) the County is obligated to execute and deliver to the Fund (i) a conyeyance instrument in the form attached hereto as Exhibit B, (ii) a release in the form attached hereto as Exhibit C and (iii) a dismissal with prejudice of an action brought by the County against CEI/Kensington Apartments L.P. in the fonn attached hereto as Exhibit D. In order to facilitate the transactions that are contemplated to take place upon approYal and countersignature of the Agreement by the County, we are on behalf of the Fund herewith deliyering to you in escrow a check (the "Payment Check") in the amount of the Payment Amount. The County Attorney's Office is instructed to hold the Payment Check in escrow until: 7 Times Square, New York, New York 10036 Telephone: 212.790.4500 Fax: 212.790.4545 Albany I Los Angeles I New York I Orange County I Palo Alto I Sacramento I San Francisco I Washington. D,C, 80447211.1 manatt J phelps I phillips AGen(~a Item (\)0. 16K4 - ApMi 14. 2009 Page '18 of 39 manatt Thomas C. Baratta, Esq. April_.2009 Page 2 1. The County has countersigned the Agreement; 2. Exhibit B, The County has signed a conycyance instrument in the form attached hereto as 3. The County has signed a release in the form attached hereto as Exhibit C attaching the legal description that is attached as Exhibit D. 4. The County has signed and filed in the Circuit Court of the Twentieth Judicial Circuit in and for Collier County Florida a dismissal with prejudice of an action brought by the County against CEl/Kensington Apartments L.P. in the form attached hereto as Exhibit E. 5. The County has signed and filed with the County Recorder for Collier County a release of its lis pendens attaching the legal description that is attached as Exhibit D. 6. The County has delivered at least one manually executed counterpart of each document listed in #1 - #3 above to the representative of Cummings & Lockwood who will be in attendance at the April 14 meeting of the Board. If the Board does not approye the Agreement or if any of the conditions listed in #1-#6 aboye is not met by the close of business on April 17, 2009, the County Attorney's Office is instructed to return the Payment Check and the copies of the Agreement executed on behalf of the Fund to the undersigned. Please confirm the acceptance by the County Attorney's Office of the terms of this escrow by signing in the space provided below and returning a copy of this letter to me by fax or pdf. Thank you for your assistance. Very truly yours, Peter F. Olberg 80447211.1 Agenda Item No. 16K4 April 14, 2009 Page 19 of 39 Item # 10N September 23, 2008 Page 1 of 18 EXECUTIVE SUMMARY 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 hetween Collier County and CEI/Kensington, Ltd., for the SaddlebrooklPeUcan Pointe Phase I Apartments, to the Office of the County Attorney to inItiate any and aU legal action including, but not limited to, lien foreclosure, if necessary OBJECTIVE: Recommendation that the Board of County Commissioners direct the COWlty Manager, or his designee, to forward the maner of the default of the Impact Fee Deferral Agreement between Collier COWlty and CEl/Kensington, Ltd., for the SaddlebrookfPelican Pointe Phase I Apartments, to the Office of the County Attorney to initiate legal action, up to and including lien foreclosure. - CONSIDERATIONS: On December 16, 1997, the Board of County Commissioners entered into an Agreement with CEl/Kensington, LId. for the deferral of impact fees in the amount of $666,752.80 for 140 affordable rental units at SaddlebrookIPe1ican Pointe Phase I. In accordance with the deferral agreement, the tcrm of the deferral was for a period of six (6) years from the date of deferred impact fees for SaddlebrooklPelican Pointe Phase I. The first building permit for the subject development, for which impact fees would be due and payable but for the deferral agreement, was issued on October 9, 1998. Therefore the term of the deferral expired on October 9. 2004 and was not subsequently extended. In addition, concurrent with the execution of the deferral agreement, a lien was placed on the subject property in the amount of the defcrred impact fees as security for Collier County's interest and is still in place on the property record, On June 17, 2008. staff from the Housing and Human Services sent correspondence notifying the representatives of CEI/Kensinb'lOn, Ltd, of the past due status of thc impact fee deferral. Additionally, between the first correspondellce and the Final Notice of Impact Fee Statement prepared on August 27, 2008, staff from the Housing and Human Services Department and the Business Management and Budget Office have made repeated efforts to contact the company representatives and have been unsuccessful. The Final Notice of Impact Fee Statement was prepared and sent August 27, 2008 via certified mail, with a return receipt requested, As required by Section 74-501 (a) of the Collier County Code of Laws and Ordinances, the past due impact fees are required to be paid in full within thirty (30) calendar days of the effective date of service of the Final Notice of Impact Fee Statement. In the eyent that payment is not received, 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. ,',GB,lCa [tem t~o. 'I '3K4 - April 14,2009 Page 20 of 39 Item # 10N September 23, 200" Page 2 of 18 To date, payment has not been receiyed by Collier County nor has there been any communications or correspondence from or on behalf of eEl/Kensington, Ltd. to Collier County regarding this matter. FISCAL IMPACT: Upon reaching the term of the Deferral Agreement, $666,752.80 became due and owing to Collier County, 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 six- year tenn jeopardizes the County's ability to provide capital improvements, necessitated by growth, in a timely manner. Filing and other associated fees will be approximately $1,000. The County will seek to recover all costs in initiating and pursuing this swt. GROWTH MANAGEMENT IMPACT: Objective 1.2 of the Capital Improvement Element (CIE) of the Collier County Growth Management Plan (GMP) stales: "Future development will bear a proportionate cost a/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 offordahle-worliforce housing equitablv throughout the county where adequate i/~/rastructure and services are available. Programs and strategie.'1 to encourage affordable-u'orliforce housing development may include, but are not limited 10, density by right within the Immokalee Urban area and olher density banus provisions, impact fee deferrals, cxpeditl!d permitting (fast tracking), public.pril'Ule partnerships, prol'iding technical assistance and intergovernmental coordhwtion. " 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 term was consistent with the Growth Management Plan and the impact fee regulations in place at the time of execution of the Agreement. However, failure to pay the impact fees that arc now due and owing has a direct impact on each of the impact fee trust funds that originally provided a deferral of impact fees. LEGAL CONSIDERATIONS: The County Attorney's office requests immediate approval by the Board of County Commissioners so as not to jeopardize any and all legal and equitable remedies the County may have availabie. - WEM RECOMMENDATION: Recommendation that the Board of County Commissioners direct the County Manager, or his designee, to forward the maner of the default of the Impact Fee Deferrdl Agreement between Collier County and CEI/Kensington, Ltd" for the SaddlehrookIPelican Pointe Phase I Apartments, to the Office of the County Attorney to initiate any and all legal action including, but not limited to, lien fOicclosure, if necessary. PREPARED BY: Amy Patterson. Impact Fee and Economic Development Manager Business Management and Budget Office, CDES p,genda Item No. 16K4 .I\pril 14. 2009 Page 21 of 39 Item # 10N September 23, 2008 Page 3 of 18 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 CEl/Kensington, Ltd., for the SaddlebrookiPelican Pointe Phase I Apartments, to the Office 01 the County Attorney to Initiate any and all legal action Including, but not limited to, lien loreclosure, II necessary_ (Amy Patterson, Impact Fee Manager) Prepared By: Department Date CDES Budget 9/9/200812:15:41 PM Approved By: Department Approval Date CDES Budget Approved 9/9/2008 3:14 PM Approved By: Department Approval Dale County Attorney Approved 9/9/2008 4:53 PM Approved By: Department Approval Date CDES Approved 9/11/20083:52 PM Approved By: Department Appreval Date Office of Management Approved 9/13/20082:33 PM and Budget Approved By: Depanment Approval Dale County Approved 9/14/200812:59 PM Manager's Office r- A.TIACHMENTS; Name; [) ~lollli12L w looar.DOC Q ~QQK Aareement J1d! o Saddlebrook _A.esoh.Jtion 1997 ad! o ~ook NQ.t!ce..DJjf .-- .-- Description: Agenda Item i-4o. 16f\4 April 14. 2009 Page 22 of 39 Item # 10N September 23. 2001' Page 4 of 18 Type: Executive Summary - Delerral Agreement Default Agreement Deferral Agreement Deferral Resolution 1997 Final Notice of Impact Fee Slatemant Executive Summary Backup Malerial Backup Material ';gerida Item i~o. 16K4 April 14. 2009 Page 23 of 39 S~temb~r 23, t'tlJA 5 0' 18 AGREEMENT FOR 100"1. DEn:JtRAL OF COLLIER COUNTY IMP....CT FEES This Agreement for the Defemll oflmpact F.... enter<d into thiJ~ of ~ -. J'. d f 1991, by Illd belw= the Boord of County Commissionera of Collier County. Florida, hereinafter ",fc:m:d to II '"C0I.lN'IY' IIIld CEllKensinJlOl1, Ud.. hereinafter ",ferm! 10 as '"OWNER", WHEREAS, Collier County Ordinance No. 88-91. .. amended. the Collier County Lunary Syllem tmpocl Fee 0rdirwIce; Collier COIUIty Ordinznee No. 88-96, as amended. the Collier County Pai:s soo Ree7eZtionzl Foeilid.. Impoct Fee Ordm-e; Collier County Ordinance No. 91-71, II amenclc:d, lhe Colli... County Emetzency MocIical SetviCCl S)'1lem Impact Fee Ordinznc:e; Collier County Ordi_ No, 92-;z2, II amenclc:d, the Collier County Rold Impact Fee OrdilWlCe; Collier COIInty Ordinance No. 90-86. II amendocl. the Collier County Water System Impact For: Ordinance; Collier county Ordinance No. 90-87. as amended, the Collier eounty Sewer System ImplC! F... OrdilWlee; """ Collier County Ordinance No. 92-33, II amended, the Collier County Eduezlional Foeilili.. S)'1lmlmpact Fee Ordilltll... as they may be flll1her amendocl from time 10 lime hereilllfter col~jvely ",fcmd to IS "Impacl Fee Onlinanoe", provide for defemls of implCt fOOl for newv owncr-oecupiocl dweilinl onits qualifying II a/Tordable housins; and WHEREAS, Coloni.1 Equities. I... is the duly authorized genenol panner of CEIIKensington, LId. with Richarcl Sbpo II President; and WJIEIUU.S. CElIKerWnglOll. Ud. .... opplied for . deferral of impa:1 fees .. requin:d by the Impa<l fee Ordinsn<:e, a copy of ooid opplieotion iJ on liIe i"the Hawing oncI Urban Improvement Deplrlment; and WHEREAS, the County Adminillrator .... his dcoilllee has reviewed the OWNER'. apVlic.alion and has rounc.l that it complies with the requirements for an affordable housinl deferral; orimpacl r..... established in the Impact Fee Ordinance; and "-;:1- ~i!-. ::s=;! --3 -as -I ;Z ~ -= ~I --~ -- ..... - .... =lho :'0:;:: E = .... l! h~ 9ft.. ~I""'" __ c...o S _ .... l!-~ . a n~ I~ . ..0 ~ u ::1 - - -- -- -- /\genda :tem r~(J. 16f<4 April 14. 2009 Page 24 of 39 16A 3 WHEREAS, the implCl fee defem! shall be praentod in lieu of payment of Ibe requisite impact fees subject to .ali.fac:tion of all criteria in the Impact F= OrdilWlCe qu.lifyins Ibc pmjeet IS elil'Dle for an impac:t fee deferral; and wNtW}I,;W:cotlMrY ...' ... ""'jIlf'tIIpIIllftle ..lilt _~ Six Handnd .... Sidjo~"n J ~Sena I' , " 'f\tY1..OoiIanMd 1IJItW'!S66&;'1!2.aOI _.- .., . '....,.,. . -.-- .' '-.'. '. ,,' .' -. ,. , "," ....' ..,......:--,.. ". , ...' ...... . ..._....,"'....'iIl\lI!IIiIt'.._r'<-h'll"dIcMMIlIe,1'IlIlii!'f~ed ,,.,. . ".,," ..' .. , " . ,'. ,. h1~IIIJ~~'~1IlIlIWm. 'I'...til'd='"~'""~,__",,,~, , ",;" .....-; , ..... .... .. ". .... WHEREAS. tbe Impact Fcc Ordinanc:c n:quin:a lba1 the OWNER enter into an Agrmnenl with the COWIY. NOW, THEREFORE, in _"-lioft of the foresoilll rccilah. the p:lrties covenant and .gn:e as follows: I. RECITALS INCORPORATED. The forqoing nx:itals arc",," and =t and shall be incorporated by reference herein. 2, LEGAL DESCRlmOl'I. The I<PI dcocription of lbe dwelling units (the "Dwelling Unil") is IlIaCbaI hereto IS Exhibit "A. ancI incorporated by rcfcn:nc:e bcrcin. 3. TERM. OWNER asroea lbal the Dwtollins Unit shall remain .tTonlable and .hall be offered for rent in accordance wilb the Jtandards let fonh in the appendi. to the Impact Fee Ordinance for a minimum of fifteen (I S) ~ commencing from the Wlte . ccrtificzte of oecupllney i. i..ued for (he Dwelling Unit. 4. REPRESENTATIONS AND WARRANTIES. OWNER "'I'=t. and wanants the following: a. The Dwelling Unit WlI be the permlJlcnl residence of the occupanVtcnant. b. The hollJChold renting tho o..ollilll Unit must have. very low or low income level, Il the c:ommenumenl of the leosehold ancI duration thereof, as !hat term is defined in tho Appendices to Ihc rcspcctivc 1mpac1 Fee Ordinances and the monthly rent must be within the affordable housing suldelineo ertsbliobcd in the Appendi... to the respective Lrnpact Fee Ordinances. 2 o - ~ ... ~ ~ ~ ~ ..... "" c:> I~ .I\genda Item No. 16K4 April 14. 2009 Page 25 of 39 16A - 3 c. The Dwellin. Unit ohIIJ n:main affordable for at 1_ filb:cn (I S) years from the date the ccrtir_e or occupanc:y wa iuued. 5. SUBSEQUENT RENTAL OR TRANSFER. If OWNER rcnllthe Dwcllin. Un;1 oultjcct to the implCl foe clcrcml to . IU~ renier, the Dwe/lin. Unil lIIan be rcnicd only 10 houoeholds meclin.lhe criteria lei rotlh in the Impact Fee Ordinance. The impacl foes defemd """II be immediately repaid to the COUNTY upon the dicmtinu..... or use or the Owclli"l Unit.. alTordable hourina. or ai. )Un ITom the dale such impact fees an: dcremd. whichever _ flTOl. OWNIiR aJll'C'Cl thai even thcuah the implCl roes how been repaid 10 the COUNTY. the OWNER will utilize the Owellina Unit Cor affOrdable housin. ror aI least fift.... (IS) )Un from the date the ecnir..... or occupancy WIS issued ror the OwcIlin. Unit_ 6. LIEN. Tlte dermed impocl r.... """11 be a lien upon the propelly which lien may be foreclosed upon in the event ofnon-cornplianal witll the requircmenll oflhis Agreement. 7, ....NNUAL REPORT. Annually. the OWNIiR of the Dwellin. Unit shall provide 10 the County M.....er an al!ldavil or campli.... with the affordable housin. qualilicali"!'critcria and &l2ndardJ set forth in the Impact Foe OnIinanu. Said .mdavil must be filedwilliin thirty (30) days of Ihc anni....-y dale of Ihc i....... of the ccnificale of occupancy. If the income or any unit renter which orisinally qualified IS very low or low Income 1"",,1 IS defined in the ""J'CClivc Appendi. 10 the Impact Foe 0nIiJlIIlCC i~ by more than rony pcr=ll (40%) above Ihe low income level described in Ihc appendi.. then the per unit defemd impact r~ on Ihc non~mpliance unit IlWI become imn>edWcly due and payable by OWNER or. in the alternalive. the OWNER shall ha.e ninety (90) days 10 comply wilh the A/fordable Housina auidelincs ... follh in Ihc RIpCClive Appendices. 8. RELEASE OF LIEN. Upon aatiafaelOry comp!etion of the Agreement "",uircmcnts. and upon payment of the defaml implCl fea. the COlJ1oITY shall. al th. capen.. of Ihe COUNTY, n:eord any nee...." documenta1ion cvidencins such paymen~ including but not limited to. . "'I.... of lien. 3 ..,~ -" '<10 :"! .... .... -a .... ~ .... .... "" - 16A 9. BINDING EFFECf. This AjI........t ohaIl be binding upon lhe ponies ID lid. Agrccmcnl, their bcil'l, II.. [jJ ,...... _p !Jl!he cue of sale or lnNCcr by gift DC !he o....lIin& Unit, the ori,pnaJ OWNER IIIa1ll'C111llin liable far the illlplld f.... clefcmd IInlil said imp"", rees ""' paid in /bIt 10. RECORDING. Tbio A".........1I11ta11 be rcconlccI by OWNER ot the """"""" of OWNER iD the OfficW Ra:onls of CoUier County, Florida wilbin sixty (60) days aIlcr exccutioa oflhil Aarcemcnt by the ClWTDUIlI oC1he1lolnl of County Commiaioncn. II. DEFAULT. OWNER ohaIl be in defaull oflhd A~t (I) whCR: OWNl!ll flilt 10 =t the ",uj>Wt)' in O(QQjdaliCC with the affordable boasinc Ilmdardo ..... qaaliflCaliDll crilm. ClUblilhcd in the Imp... Fcc OnIin1nce and thcIallcr !lilt 10 pay 1he impact rea dae within Ihirty (30) dayI or notice DC said lI01H:OIIlptianc:e, or (2) wh.... OWNER violates one of the .ffordable housinS quaIific:mon criteria in the Impact Fcc OnIil\lllCe for a periocl of fifteen (IS) dayI aller noeioc or violation. HOW<:YCI'. willi reopccllD the Annual Rcpon, OWNER sball not be in default DC Ihia Apoemcnt lIIIlil . fifteen (IS) day pee perioclli'oln the due dale of the report hu lapsed in lhe """'" the OWJolEJt i. in defaulL 12. REMEDIES. Should tho OWNER of the property Cajllo eomply with tho oaicI qualification mtc:ria at any Ii... durin& lbe fifteen (IS) year period or Ihould OWNER vioJatc any provisions of lbi. Asrocmcnt. tho impoIct C_ dofcmd thalI be poid in full by OWNER within thirty (30) clays of oaicI JlOIl.COIIIpU_. OWNER aa::- lhal the iIIlpIICt fees cIofcmd ohaIl c:onttitutc a lien on lhc JlI'llPC'tY COIIIlIIIIIlCin& on lhe effective date of Ihia asr=nont ..... continuins until paid. Such lien sball be IlIpDrior and JIoo-..:.unt 10 the interest in the Owollins Unit of IOY owner, I...... tenant, monppo, or cro- pcImn Clleq>l the lien for County Uxcs IIIld lhall be on pariI)' willt lhc lien of Ill)' IUC!I CDIlIlty taXell. Shoulcllbc OWNER be in dcr.alt orlhi. Asrecmcnt and lhe dcflllll it DOl cured within thirty (30) days after writlen ootice \0 the OWNER. Ille Board may bring . civil .c:tion ID cnforee the ApccmenL In tddition, the Ii... may' be fcmdOlCd or olhclwiJc cnCon:cd by the COUNTY by ldion or tuit iD equity u for the CorcelOlU/1l or. monpp on roo! property. Thit ranlldy it c:umulllivo wilb 111)' other right or 4 I , I I , i c:> ::a ,. ~ -- ..... ~ ~ .... .. , ~ ..... ..,. OJ-.> /\oenda item No. 16K4 .. April 14, 2009 Page 27 of 39 16A 3 rmnedy available Ie lilt COUNTY, TblI BoanIIhaII .... OIIlilted Ie n:cavor all f_ lIIld COllI, incIudinllltol1lt)". f.... plus in_.lIIt Ilal1IkJcy lite for judgments ealcuIated on . calC1ldar cIsy basil until pilei. IN WITNESS WHEREOF, !be ...m- haw cxocuted Ibis AJI1=lenl ror defeznl or Impact F_ OIl !be date md yat 611I ~ wriUal. (2) Wi........: OWNER: CEIJICENSINGTON, LID. By: COLONIALEQUITIES,INC ITS GI!NJ!RAL PARTNER Yna.n",; .,b,,, ~AA'K.J Prinl NIIIlt /nA-.l Y (;,,-,, ~'" 1M ,d,,~ R./f.,- ~ 'V Prinl Name OJIotu A1 ;<<""KAloe- h~..J JJ.l?m- .t:.>... Jlj_L......~. "--'~-l l' \ \1.1. I,. "'_ R81UiHI&W,~~'uc;q;.."' ....~O..... "~":',"< 11." . \ . . t ,. I~ .... (CORPORATE SEAL) : ,~I._..,-/ )....~. 0</ ....).'_ '. ".J II!", t. I..".f .... .lo: . ,'. . .....,) ...., "i>-...~.:..:../'" i .....:.;J...t.I. ................." '" .... -..: '" .... C> . (;Ji'iI' ". . '~"I) DATEIl:~ ~1''''';, /,'? ." '." .. ..(".... ;:,,:rrur:. :-- '" . ~OKl',I!~~C1m: ::: '.1. I ~.' .0'r..J~/r'~LfJ.r! '': . r!'l""ll\- . COUNTY: <:) ~ BOAJU) OF COUNTY COMMISSIONI!RS OF COUJI!R COUNTY. FLORIDA By:4f~~~ ...., '" u:: c..: Approved II '" farm lIIld lepJ IUffic:ieney tir' rI( . 'I ,Aff1A 4Y eidl F, AlbIon Aslill&llt Caunry Attorney s J.~,genda Item No. 16K4 April 14. 2009 Page 28 of 39 ST ATE OF ~- ttltAS COUNTY OF DALUS The (oresoinl inmumen! WI' acIcnowledaed before me Ihis .s day or ~ 1997 by Ilichanl Shaw. Presidmt CoIonill Equklcs, GencnI Partner of CEJJlCen.inlton. Ltd. on ~ pC the Fip, He it ~Iy known 10 me or hu procluce:l llU~ \, t "tJ ~ 0( IdentifJCUion) IS identifiaJion. ~~~b~ ~ Sip oCpenon . aclalO..led _~21"'_~~"I Mee~ . ~ NlIIlo oC Aebowled.... Typed. Prinrecl or Sumpcd ~~ TEIl!.~ J. 1II110Z ,.r~'f"( pueuc 0..:.'. 01 T~ . t.. 02-D.., ~- > 6 ~ .. ..... c..>> ..... .... ~ u .... ..... .., - Agenda Item No. 16K4 April 14, 2009 Page 29 of 39 218181T 4 TIIEPAU\1S 16A } lLGA.L Df"..sClW'l10N A pared of IUId'IO~. 'm SCClioo 34, ToYo'llShip ~9 # Kalis. 26 F.ut., CoDicc CoW1\y.l"lorida,~ more: poni<uIoulycbaiboclur. wo, . ! Commmce .. tbt s....1.out coma of \he WCSl 1/2 of lhc so.~""o" 114 oCSoc:IJon J~, Tov."llShip ~9 ~0\l.~h.'1WIg. 26 Ed, .ur. "'1I\l"~3'1~ .;diSlllXll: of 726 00 foct; thcooc ruD NOO"2T59'"W. di_ .,()Ooo fcelto","-!,olal OCUq:imiag; Ih...... run Nt9''''30Il''W & cliSW>cc of ~'9 S1 fee\; ~ 1F. NOO"Ol'll"E. . dinanc:c of CiI.U c..!t to the poinI of """""'"' of . ~ Cline 00lIC&"" . Sout"-stc:lr. th.Oa: nin 97.61 foe! along d.e .", or Aiel c:Jm: bning. Dlliu. DC 200.00 foe<. . cC.:tnd ~t of 27.S7'4~", . chor41listm>eG cif96.~ fe.et ....t & chon:! beatUl& lor NU.57'~1"W 10 tho point of ~ lhor1oe lUll Nzr.56"lJ'"W .~..w.ai oC.3U7 (<>elL" & l"""IOfeunoalWO 'oh ~conca.., . Nonhc..,lC'lr. d~ tun 96.12 feel alan,: .he ue o( sai4 """'" ~.. MUS of 200.00 foe<. . <f'4.aI "'Ilk or 27"12') S". . ohord diow>oe or 95.20 feet aod . chon! bco:iD.ll oljNI4"10""l.5""W Lo. paint of!allSCIIl:)'; u.e....""'NOO"2.4.II"W a dilWlc;c of 3~6' '. foOl; ~ nlll NI9"))'42"E. . 4islaDl:C of n:n feci; 1hc:noc run NOO"OO' , ~ c\lst&nt:( at' 79, IJ (eet lhcac:c NIl NS60U'39"E. l distux:e of 51.48 feo<; tJ. ".; run' N1401S'OZ"W ; 4tSllJlCO oC .21.61 fOCli. tl=oe run No\6"19'SJ"E a .itan", of 51.60 fctl, lI>CIlC< run NOO"OO'OO'"W i WtaDCe of 171.15 (OCI; II""';" run NS9"3Z's.c"W . cIUt.&Dee 1~.~6, fecl;"lhcaoe nm N1C1"~O'5n; .Io~ of 37.82 fool, thence run N4Q'~. '~'i1 & diataftc:c of '210.12 {oct; O~ :run &49"44'0I"E . di....anee of 2.4 16 fool; lheDce nul S8\l"~3'2n; . diotmlc:c"or. 305.97 (OC>(, tJccncc lUll S ~9"E . disuDcc: or .1 107.10 fed 10 u.c:Po-O(Besilmina ! . , I I . 'I'&n:d eonJ.inmt\129-1 ""l'eI, mOfe or 10,,,. "'*'" 10 eucmcntl, resuiclio.. end .raecvltimu o{tcoitd ......... -, 1'11'I'"ed 111 l{l~~S.":':'" . i\l~C: McA.~, r.S.M . l'lU1id&,~~~lipll.~O, 1s.c3 . .,' '"' M""'ciy ~'ancl Design, Ine ~IOI F....'I'~...il Tlaii; Surte'202 NllI1les, Florida' 341 n Pale 2 of 3 g .. ..... """ ..... ..... ~ ..... ..... .... ~ Agenda item No. 16K4 April 14, 2009 Page 30 of 39 EIRIBIT A SADDLl:BROOK VIllAGt ruD (A.K.A.. PF.LICAJII ru1l'l..., LEGAL DESCIUPT1Ol'I The WOOl 112 rA die ~.. 1/4 of SccliaD ~ Towasbip 49 South, RIn!e 26 F.ISl. Collior CoI!d1, F1ariola;\yiDg llIUllIarllll_ 75; le.. and .....1lIe "IbMtIa: , Tho SouIh SO.OO ~ r.,.wo RoocI JUaht-Ol'.Way. oncIlhe E.ast 72600 rcd ar ,he W... 112 oftbes....lI_ 1/4 al'aiII s..uan34. Parcel CIlIftI&iaini J:I.79t ICR\o ---....--. P.... 1 of 3 , (,A-3 rOflt. P.Po? o !i) .. ...... .... -... ...... ?? ...... ...... """ .... Agenda Item No. 16K4 April 14, 2009 Page 31 of 39 I, \iE' ,Ct C t ~ $CAU:t, ""-0011' tOO: 200 . r.%lfl lilT ~ J l!l', PALMS 'LEGAL 16A 3 DESCRIPTION tt~ OR: 2372 PG: 2291 trt . . I: R'-lllUS' 200,00 ' 200.00 . . 'r:- R . LEHC"~ QJ.ft\ &6,\2'" l~ CHORD ".64 t ,20 j' 'I: j' f" I' ,I I :/ J: -I ,~. ; I.. ...' It... 'I' :'" I: I. t{.Ol~, \HI. .r.;; A SKtT r ,,' , no: '1I1USIlJ. com, COllr ~ : 'ntZ .....UlS , ' !.mAL IlI:SCl\II"t1ON . t! .....,.........mu.aawn.......... i~-- . I I (~ ;: ~'- SI\~l"< nn I :..~...-l. ,10-;97' 1..... ~. ~ '1-'" :; ~} . . ,0 . VI ;;8 otJ ..... 'i -Ul <:t .0. ... ;"'8 . t,~ "\t. .~. ~: , (> -, k. j C;. fi69'4J'JS"W '97.!,2' 0::: $UJUNC H1 J 1,\ W NI4:10 2 W DELTA 21 1 44 2~ ZI l.IH( LI 12: U' L4 U. L : l7 ; LS DISTANCE; 00, . 6&24 31,87, 1:l.7 ? ,\3 :;'_48. r \.6\, .' 51.60,' , \ 1.\5, '. . 14:46, . 37.82 . '24.16. POlNr or Ol:CWN>NC , , pOOlr or (:OWO/CEMtHT S.E.;OORNtR or.n.; w t/2 or lIit S.t. "{.c or .ce, 34. T ., S. R 16 E 7zi,oo~ (RE<:oIlD) N89'43 16 l'( Pate :3 at :3 ~. . -.,. ..... _.. _. r._ - ..., - RESOLUTION NO. 97- -A6.L A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS, COLLIER COUNTY, FLORIDA AUTHORIZING THE DEFEIlRAL OF LIBRARY SYSTEM IMPACT FEES, PARKS AND RECREATIONAL FACILITIES IMPACT FEES, ROAD IMPACT FEES WATER IMPACT FEES, SEWER IMPACT FEES, ' EMERGENCY MEDICAL SERVICES IMPACT FEES, AND EDUCATIONAL FACILITIES SYSTEM IMPACT FEES FOR SADDLEBROOKIPEUCAN POINTE PHASE I, A 140 UNIT AFFORDABLE RENTAL IIOUSING PROJECT. WHEREAS, Collier County has recognized and attempted to address the lack of adequate and affordable housing for moderate, low, and very low income households in Collier C!)unty and the need for creative and innovative programs to assist in the provision of such housing by including .several provisions in the Collier County Growth Management Plan, including: objective 1.4, policy 1.4.1, objec,live 1.5, policy 1.5.2, policy 1.5.3, policy 1.5.4, policy 1.5.5. policy 1.5.6; object 1.6, policy 1.6.3; objective 2.1, policy 2.LI, policy 2.1.2, policy 2.1.3, policy 2. 1.5, and policy 2.1.6 of the Housir.g Element; and \VHEREAS. CElfKensmgton. Ltd., a Florida Limited Partnership, will undertake the dev~lopment of SaddlebrookIPeJican Painte Phase! Apartments, a one hundred and forty (140) unit affordable rental bousing commumty on a site located in Collier County, Florida, of which CElfKensington, Ltd. is owner; and Vv1-IEREAS, on November 2B, t 997, an application was filed with the County Administrator for the def,:m.I of Collier Counly lmpBct fees for the SaddlebrookfPelican Pointe Phase I project consistent with the requirement!> of the County impact f~ ordinances; and WHEREAS, in accordance with Section 3.4 of the Library System Impact Fee Ordinance, OTdinance No, 88.97, as atT',ended~ Section 4.05 of lheParks and Recreational "Facilities Impact Fee Ordinance, Ordinance No. 88.96. as amended; Section 3.04 of the Ro<\d Impact f'ce Ordinance, Ordtmmce No. 92-22, It.S amended; Coilj(:;t COUllt)' OnJinancc No. 90-86, as amended, the Collier County Water Syst.e:m Impact Fee Ord.immce; Collier County Ordinance No. 90~87, as amended, the Collier County Sewer System rmpact Fee Ordinance; Section 3,05 of the Emergency Medical Services Syslcm Impact Fee Ordinance, Ordinance No.9}. 71, as amended; and Section 3.05 of the Educational Facllitie& System Impact Fee Ordinance. Agenda Item No. 16K4 , Iten\~ of 39 September 23, 2008 Page 14 of 18 I Agenda Item No. 16K4 !~priI14, 2009 Ite~"O>>9fOf.i3 of 39 September 23,2008 Page 15 of 18 Ordinance No. 92-13, as amended, an applicant may obtain a deferral of one hundred percen1 (100'%) of impact fees for a period of six (6) years by qualifying for said deferral~ and WHEREAS. SaddlebrookIPelican Point Phase J nas qualified for all impact fee deferral based upon the following representations made by CE1IK.ensington. Ltd. A. The Dwellmg Unit shall be the permanent residence of 1h~ occupant/tenant B. The household renting the Dwelling Unit must have a very low or low income level, ,)t the cummt:n<:emtmt uf lhe iCll.schuld and duration thereof. as that tenn is defined in tbe Appendices to the respective Impact Fee Ordinances and the monthly rent must be within 1he affordable bousing guidelines established in the Appendices 10 the respecLive Impact Fee Ordinances. C. The Dwelling Unit shall remain affordable for lit leut fifteen (1 S) years from the date tbe certificate of occupancy WI$ issued_ NOW, THEREFORE, BE IT RESOLVED BY TIll! BOARD OF COUNTY COMMISSIONERS OF COLLIER COUN1Y, FLORIDA. TlIAT, I. The B~a.rd of Co~ty Commissioners bereby authorized thl!! deferral by Collier County of tbe following impact fecs in the amounts listed below for the one hundred and forty (140) affordable housing units to be developed by CEI/Kensington, Ltd. on tbe Saddlcbrook Village pun site R.90-6. as identified in Exhibit "AM: Eaeh Unit 140 tln'u A Library System Impact Fees $ 180.52 $25,272.80 / B. Road Impact Fees 935.00 130,900.00-- . . C. Parks & Recreation Impact Fees: ,/ Community Parks 399.00 55,860.00 / R egjonal Parks 179.00 25,060.00 D. Emergency Services lmpJct Fces 2.00 280.00 / E. School Impact Fees: 827.00 115,780.00/ F Water Impact Fees 900.00 126,000.00 ./ G. Scwer Impact Fees ~ lR7 600 00 1,;- TOTAL IMPACT FEES TO BE DEFERRED $4,762.52 $666,752.80 2. Deferral of said impact fees is subject to and contingent upon execution and recordation of an Agreement for DeferraJ of Collier County Impact Fees which shall be eatered into between the Rpplicant and County. This Resolution adopted after motion, second and majority vote favoring same. DATED,~/~//ff'7 AlTEST:. ~...'~. Dwight E. Brock, Clerk ,- ',.;' )~:r~~:~ ~o~f 74e and lega.! suffic1ensY: {:L /.., j ,1Vl'L/t~ Heidi F. Ashton Asslstant County Attorney jdlf7uddk::brookJpcli~ item No. 16K4 t\pi"iI14,2ClCJ9 Iter::;aff~ B~ oi 39 September 23, 2008 Page 16 of 18 COLLIER COUNTY BUSINESS MANAGEMENT AND BUDGET OFFICE Agenda Item No. 16K4 April 14, 2009 Page'35oT39-- Item # 10N September 23, 200 Page 17 of 18 IMPACT FEE SECTION 2ROO N, Horseshoe Drive' :-Japb, Florida .34104 . (239) offi3-2369 . Fax (239)..ofllJ-240S 6lS::>- ;).sl. FINAL NOTICE OF IMPACT FEE STATEMENT CER TIFlED MAIL #7007 2560 000 I 1485 3120 RETURN RECEIPT REQUESTED August 27, 2008 Mr. Richard Shaw, President CEIlKensinglOn, Ltd. 1 71 03 Preston Road Dallas, Texas 75248 RE: Saddlebrook/Pelican Pointe Phase I Village Impact Fee Deferral Dear Mr. Shaw: In follow up to the notice sent to you on June 17, 2008, the Impact Fee Deferral Agreement for Saddlebrook/Pelican Pointe Phase I became due and payable on October 9, 2004. Collier County staff has made numerous attempts to contact you and your associates by telephone in order to discuss this matter and facilitate a resolution. The impact fee deferral was executed on December 16, 1997 in the amount of $666,752.80 as follows: Community Parks Impact Fees EMS Impact Fees Library Impact Fees Regional Parks Impact Fees Road Impact Fees Sewer Impact Fees School Impact Fees Water Impact fees $ 55,860.00 280.00 25,272,80 25,060.00 130,900.00 187,600.00 115,780.00 126.000.00 TOTAL DUE: $666,752.80 c l~~ c y ;'CJenda Item No. 16f<.4 , ADr;1 14. 2009 Page 36 01 j~ J ltem#10N . September 23, 200 . Page 18 of 18 In the event the Impact Fees are not paid in full within thirty (30) calendar days of the effective date of service of this Final Notice of Impact Fee Statement, 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 as required by Section 74-501(a) of the Collier County Code of Laws and Ordinances, In addition, concurrent with the execution of the deferral agreement, a lien was placed on the subject property in the amount of the deferred impact fees as security for Collier County's interest. In the event that the impact fees are not paid, as outlined aboye, the County will proceed with its requirements to foreclose on the lien, We respectfully request that payment of the sums due be made promptly to Collier County. Payment should be made to Board of County Commissioners and mailed to: Amy Patterson, Impact Feel Economic Deyelopment Manager Collier County Government Community Development and Environmental Services Division 2800 North Horseshoe Drive Naples, Florida 34104 I can be reacbed at 239.252.5721 if you have any questions or require additional information. Sincerely, :!:g~ Impact Fee and Economic Development Manager cc: Jeffrey A. Klatzkow, County Attorney Joseph K. Schmitt. AdminiStrator, Community Development and Environmental Services. Division Marcy Krumbine, Director. Housing and Human Services Garrett Mul1ee~ Manager. Business Management and Budget Office Frank Ramsey, Housing Manager I "' '-Ap~il 14. 2009 Page 37 of 39 September 23, 2008 CHAIRMAN HENNING: Okay, all right. Be back at 4: 1 O. (A brief recess was had.) Item #lON THE MATTER OF THE DEFAULT OF THE IMPACT FEE DEFERRAL AGREEMENT BETWEEN COLLIER COUNTY AND CEI/KENSINGTON, LTD., FOR THE SADDLEBROOK/PELICAN POINTE PHASE I APARTMENTS, TO THE OFFICE OF THE COUNTY ATTORNEY TO INITIATE ANY AND ALL LEGAL ACTION INCLUDING, BUT NOT LIMITED TO, LIEN FORECLOSURE. IF NECESSARY - APPROVED CHAIRMAN HENNING: Everybody take their seats, please. The next item is to recommend that the Board of Commissioners direct the county manager, or his designee, to forward the matter of default -- default of impact fee deferral agreement between Collier County and CEI/Kensington, LL -- Limited, for the Sandlebrook (sic) Pelican Point, Phase I apartments to the Office of the County Attorney to initiate any legal action including, but not limited to, lien foreclosure, if necessary. COMMISSIONER COYLE: Motion to approve. CHAIRMAN HENNING: Motion by Commissioner Coyle, i I second by Commissioner Henning. i COMMISSIONER FIALA: Can I ask you what the motion was? COMMISSIONER COYLE: To approve, to take all necessary legal action in order to recover the impact fees, deferred impact fees that have not been paid and they have not been responsive. COMMISSIONER FIALA: To take all necessary methods to collect the impact fees on Saddlebrook, right? COMMISSIONER COYLE: Yep. CHAIRMAN HENNING: Okay. Commissioner Halas? Page] 88 '"_..u~ ,,~.., ,,_. .",,, I\pril 14, 2009 Page 38 of 39 September 23, 2008 I i COMMISSIONER HALAS: My question is, how many of these do we have out there presently? Obviously we had one this morning that hadn't started paying impact fees. Do we have some more that are in the bushes? MS. PATTERSON: For the record, Amy Patterson, Impact Fee Manager for Community DevelopmentlEnvironmental Services. Besides Brittany Bay that we saw this morning, we also have falling about six months behind is Brittany Bay, Phase II, which is $1.2 million. Now Brit -- the people from Brittany Bay have not addressed what kind of position they're in for that second phase, but that is one that's imminent. Also we have First Assembly of God coming forward in November with -- their impact fee terms out, Saddlebrook, and then there's a second phase of Saddlebrook which comes due towards the end of 2009. It is under a different ownership than this Saddlebrook as far as -- that's what we have as far as those older impact fee deferrals that do not have any other additional security on the property in the form of a treasury bill or anything else. They have liens that secure the county's interest, but they don't have an automatic secured instrument. COMMISSIONER HALAS: Very interesting. Do you know what the total is roughly? I mean, if you don't have it-- MS. PATTERSON: I don't have it offhand, but we are -'- we do have a list which I can provide. It is millions, yes. It's $1.2 million for Brittany alone. It's over 2 million for Saddlebrook. COMMISSIONER HALAS: Okay. Thank you. CHAIRMAN HENNING: Any further questions? COMMISSIONER FIALA: A comment though. CHAIRMAN HENNING: Yes. COMMISSIONER FIALA: It looks like, being that we try and be nice guys and extend these deferrals to people, it -- from this it looks like they just take advantage of -- advantage of us and don't feel Page 189 I ";;) ~ . April 14, 2009 Page 39 of 39 September 23, 2008 they need to be paying these things at all. And maybe we're being a little too lenient and a little too giving. Maybe we ought to recheck that. MS. PATTERSON: The opportunity is not available to them anymore to have this type of deferral. All of our deferrals are now secured with additional security instruments, so there's not a question of whether or not they'll pay. Wben the term of the deferral is over, there's an automatic security instrument that kicks in, in the fonn of a tri-party agreement. So what we're dealing with are these older deferral agreements that, for various reasons, or whatever reasons, did not have security instruments in place. COMMISSIONER FIALA: Okay, thank you. CHAIRMAN HENNING: Any speakers? MS. FILSON: No, sir. CHAIRMAN HENNING: All in favor ofthe motion, signify by saymg aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN HENNING: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN HENNING: Opposed? (No response.) CHAIRMAN HENNING: I apologize. I went out of order. MR. MUDD: That's okay. CHAIRMAN HENNING: 10M. Item #10M RESOLUTION 2008-294: THE ANNUAL RATE RESOLUTION TO SET LANDFILL TIPPING FEES, RECYCLING CENTER Page 190