Agenda 04/08/2008 Item #16B13
EXECUTIVE SUMMARY
Agenda Item No, 16613
April S, 200S
Page 1 of 23
Recommendation to approve an amendment to the Developers Contribution
Agreement (DCA) recorded in Official Records Book 4187, Page 2310, between
Waterways Joint Venture VlI (Developer) and Collier County (County) to amend
the closing date and define the mitigation and severance terms due to the ongoing
permitting delays associated with the Davis Boulevard water management permit.
OBJECTIVE: To obtain BCC approval of an amendment to the original DCA between
the Developer and the County modifying the closing date, severance terms and mitigation
exposure.
CONSIDERATIONS: The original DCA approved February 20,2007, and recorded in
Official Records Book 4187, Page 2310, contemplated that by December 15,2007, both
parties would have been issued final South Florida Water Management District
(SFWMD) and Army Corps permits, The Developer and the County are working
cooperatively to permit the private development and the pond site for the Davis
BoulevardlCR-95I roadway project. The delay in permitting has prevented the Developer
and the County from defining the excess mitigation and severance damages as
contemplated in the original agreement. The original agreement provided that the County
would be responsible for the excess mitigation that would be required as a result of the
elimination of an on-site preserve, The calculation for excess mitigation is based on the
delta between the mitigation required of a 30 acre independent property with on site
preserve versus the mitigation required of a 13 acre pond and 17 acre development on the
same property with off site mitigation, Both parties have agreed to tenninate the County's
potential exposure for severance damages and cap the excess mitigation at no more than
$500,000, This will allow the County to avoid this uncertain liability by liquidating to
some degree of certainty its mitigation responsibility, thereby permitting parties to close
as soon as the title and documents have been cleared by the County Attorney's office.
The County would also agree to grant another ninety day extension to complete the
transaction, from "on or before March 15, 2008 to on or before June 15, 2008".
However, both parties are working diligently for a closing in April of 2008.
FISCAL IMPACT: The total exposure for excess mitigation will not exceed $500,000
and is funded in the Davis Boulevard Project #60073.
GROWTH MANAGEMENT: There is no Growth Management Impact associated with
this Executive Summary.
LEGAL OPINION: The attached amendment has been reviewed and approved by the
Office of the County Attorney for content and legal sufficiency, - EC
RECOMMENDATION: That the Board of County Commissioners approves an
amendment to the original DCA between the Developer and the County modifying the
closing date, severance tenns and mitigation exposure.
Prepared by. Nick Casalanguida, Director, Transportation Services Division
Attaclunents: I) First Amendment to the Developers Contlibution Agreement; 2) Original
Developers Contribution Agreement; 3) Project Locus Map
Page 10f2
Agenda Item No. 16813
April S, 200S
Page 2 of 23
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
Item Number:
Item Summary:
16813
Recommendation to approve an amendment to the Developers Contribution Agreement
(DCA) recorded in Official Records Book 4187, Page 2310, between Waterways Joint
Venture VII (Developer) and Collier County (County) to amend the closing date and define
the mitigation and severance terms due to the ongoing permitting delays associated with the
Davis Boulevard water management permit.
Meeting Date:
4/8/2008 900:00 AM
Prepared By
Nick Casalanguida
MPO Director
Date
Transportation Services
Transportation Planning
3/25/20084:37:11 PM
Approved By
Nick Casalanguida
MPO Director
Date
Transportation Services
Transportation Planning
3/25/20084:33 PM
Approved By
Ellen T. Chadwell
Assistant County Attorney
Date
County Attorney
County Attorney Office
3/25/20085:15 PM
Approved By
Norm E. Feder, AICP
Transportation Division Administrator
Date
Transportation Services
Transportation Services Admin.
3/27/20088:37 AM
Approved By
Sharon Newman
Accounting Supervisor
Date
Transportation Services
Transportation Services Admin
3/27/20082:26 PM
Approved By
Pat Lehnhard
Executive Secretary
Date
Transportation Services
Transportation Services Admin
3/27/20082:32 PM
Approved By
OMS Coordinator
Applications Analyst
Date
Administrative Services
Information Technology
3/27/2008 2 :40 PM
Approved By
Mark Isackson
Budget Analyst
Date
County Manager's Office
Office of Management & Budget
3/27/20086:10 PM
Approved By
Susan Usher
Senior ManagemenUBudget Analyst
Date
file://C:\Ag:endaTest\Exoort\ 1 04-Aoril%208. %202008\ 16.%20CONSENT%20AGENDA \] 6... 4/2/2008
Page 20f2
Agenda Item No, 16B13
April S, 200S
Page 3 of 23
County Manager's Office
Office of Management & Budget
3/28/20089:53 AM
Approved By
Leo E. Ochs, Jr.
Board of County
Commissioners
Deputy County Manager
Date
County Manager's Office
3/29/20088:55 AM
file://C:IAQendaTestIExnortll 04-Anril%201L%20200RI l/i,%20CONSENT%20AGENOA I l/id 4/2/200R
r
~
~
-
~
-
-
-
~
-
...
~
-
<:::> ~
.......t;;
....., =
iC"'o.J 8_
...
... -
._ pQ.....:I
~~c....>
~. ~ -
~ =-
~ ~
=
~...
0...
~~ .
~ <>-
~~~
~=
... e>
".0.:;_
p:::: ~~
o~:&:
~ ...
-. ~~
,- --
"-0 ..... ..
0=
'-D -
~~.....
.-- ~ '"
CT'> '" ~
._=
('V') =
=~
--
:il~
0-
~~
-=
...
-./
Agenda Item No, 16B 13
April S, 200S
Page 4 of 23
DEVELOPER AGREEMEl'l"T
MYSTIQUE
THIS DEVELOPER AGREftMENT (hereinafter referred to as the "Agreement") is made
and entered into this C; () of r:eitVl7 ,2007, by and between WATERWAYS JOINT
VENTURE VII (hereinafter referred to as the "Developer"), with an address at 14627 Collier
Boulevard, Naples, Florida 34120, and COLLIER COUNTY, FLORIDA, apolitical subdivision of
the State of Florida (hereinafter referred to as "County"). All capitalized terms not defmed herein
shall have the same meaning as set forth in the Collier County Consolidated Impact Fee Ordinance,
Ordinance No. 2001-13, as amended.
R Eel TAL S:
WHEREAS, Developer is the owner of approximately 30.56 acres of land in unincorporated
Collier County, Florida, located on the south side of Davis Blvd. near its intersection with Collier
Blvd., which will be residentially developed (hereinafter referred to as the "Development"). A legal
description of the Development, together with a graphic rendering, is attached as Exhibit A; and
WHEREAS. the Florida Department of Transportation ("FDOT"), as part of the Davis Blvd.
expansion project, has identified a 10'acre portion of the Development as a pond site, together with
the necessary easement to access the pond, and an easement for conveyance from Davis Blvd, to the
pond site, which pond is necessary for the attenuation of storm water off of the expanded Davis
Blvd, A legal description and graphic rendering of this pond site and easement (hereinafter referred
to as the "Pond Parcel") is attached as Exhibit B; and
VlHEREAS, Developer had intended the Pond Parcel to be utilized for both future
development and native vegetation preserve pursuant to the County's LDC, and for wetland preserve
credit through the Environmental Resource Permit process with the South Florida Water
Management District, and Section 404, Clean Water Act permitting with the U.S. Anny Corps of
Engineers; and
WHEREAS, to preserve the Davis Blvd, road project, and to reduce costs of future
condemnation, when the presently undeveloped Pond Parcel would be developed, County has
offered to purchase the Pond Parcel for the sum of $3,000,000 in impact fee credits, consistent with
the County's right-of-way purchase policy; and
e>
...
~
""
~
....... <>
uo.. ...
~ ...
-... -
-= ...
0_
..."...-
-.. ~
"..."... ...
;z; CII:;::::>......
..... 0 oct: co
~~~ .
;,; ~ ... ~ WHEREAS, the County acknowledges that by conveV1ng the Pond Parcel to the County,
~<E-ocn J.
~ :: ~ :::; County shall not require the Developer to provide any native vegetation preserve on the remaining
20+/- parcel; and
WHEREAS, Developer is willing to convey to the County the Pond Parcel for the sum of
$3,000,000 in impact fee credits, provided that the Developer by doing so will not be in violation of
any County ordinance or regulation with respect to the Development not having sufficient preserve
area and other requirements or violation as a result of the eonveyance; and
WHEREAS, Developer is willing to freely donate, at no cost to the County, a 50-foot strip of
land adjacent to Davis Blvd. for use in the Davis Blvd. expansion project. A legal description and
r\r\
.---t
.---t
CV">
..--...
~
"""
<-
ex:>
.---t
..",..
0::
C>
~
Agenda Item No, 16B13
April S, 200S
Page 5 of 23
graphic rendering of this right-of. way strip (hereinafter the "ROW Parcel") is attached as Exhibit C;
and
WHEREAS, the Transportation Administrator has recommended to the Board of County
Commissioners that the conveyance set forth in this Agreement (hereinafter referred to as the
"Proposed Plan") is in conformity with contemplated improvements and additions to the County's
transportation network; and
WHEREAS, after reasoned consideration by the Board of Commissioners, the Board fmds
and reaffirms that:
a. The subject Proposed Plan is in conformity with the contemplated improvements and
additions to the County's transportation system;
b.
Such Proposed Plan, viewed in conjunction with other existing or 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 grov"th-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. including the most recently adopted five. year capital
improvement program for the County's transportation system, the Long Range
Transportation Plan and complies with the requirements of the Collier County
Consolidated Impact Fee Ordinance,
WIT N E SSE T H:
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:
1. All of the above RECITALS are true and correct and are hereby expressly
incorporated herein by reference as ifset forth fully below.
2. On or before December 15, 2007, the Developer shall convey to the County both the
Pond Parcel (with appropriate easements for access and maintenance) and the ROW Parcel. Both
Parcels will be conveyed to the County in fee simple, free and clear of all liens and encumbrances,
made by executed Warranty Deeds provided to the Office of the County Attorney, suitable for
recording, the general form of which is attached hereto as Exhibit D. County will pay the costs of
any title work and searches, and Developer shall be responsible for all costs for promptly removing
or curing any liens, encumbrances or deficiencies revealed in any title work. Upon receipt, the
County shall rccord the Warranty Deeds in the Public Records of the County, Except as set forth
herein, all costs of recording and conveyance shall be paid by the County. With respect to this
provision, time is of the cssence. It is acknowledged that Developer's failure to promptly convey the
parccl to County, as set forth herein shall result in actual damages to County. In that actual damages
are difficuit to asccrtain with substantial certainty, the parties agree that Developer shall pay to
Page 2 of8
~
~
OR:A~J ItPGN02~3
April S, 200S
Page 6 of 23
.~
County as liquidated damages the sum of $1,000 per day for each day past the deadline that the
Warranty Deed is not delivered to County. Such liquidated damages will be paid in place of
County's claims for actual damages. Notwithstanding anything to the contrary, County shall have
the right, in its sole discretion, to elect not to acquire the Pond Site, by giving Developer written
notice of such election no later than December 14, 2007. All provisions of this Agreement shall
survive closing and be enforceable by the County and Developer and their successors and assigns.
3. The Pond Parcel is being acquired for public use, in lieu of future condemnation.
Accordingly, except with respect to preserve requirements, it is expressly agreed that the provisions
of LDC ~ l.04.04,B (Ordinance No. 2006-07) shall apply to this Development and subsequent set-
back for accessory structures shall be no less than 10 feet as shown on Exhibit B. With respect to
preserve requirements, any preserve areas proposed by the Developer located in the Pond Parcel
shall be mitigated off-site by the County within I year from the conveyance of the Pond Parcel to the
County. A minimum of 73 acres and up to the full 10 acres, if required by South Florida Water
Management District, will be mitigated for on a I: I basis with like for like habitat through the
Conservation Collier or similar program. Following the acquisition, no further native preserve
pursuant to the LDC shall be required on the remaining parceL The Developer will be responsible
for any mitigation for any listed species and wetlands impacts mitigation required by any pennitting
agencies on the northern remaining parceL Any additional wetlands mitigation resulting from the
conveyance of the Pond Parcel shall be the responsibility of the County.
4. Developer shall receive, at closing, as full compensation for the Pond Parcel and
easements, the sum of $3,000,000 in Road Impact Fee credits which, consistent with the Collier
County Consolidated Impact Fee Ordinance, may be used by the Developer and any related joint
venture party in the impact fee district of the Pond Parcel, and all adjacent impact fee districts. A
copy of the Impact Fee Ledger, setting forth the amount of Impact Fee Credits granted pursuant to
this Agreement is attached as Exhibit E, These Road Impact Fee credits may be assigned at any
time to any another development within the same or an adj acent impact fee district provided that all
parties to this assignment of impact fee credits comply with all then-current rules and procedures of
the Collier County Impact Fee Administration section, and execute all then-current County approved
assignment forms.
5. Developer hereby grants County an option to purchase up to an additional three acres
adjacent to the Pond ParceL This additional acreage contains the footprint for approximately 40
dwelling units. The purchase price for exercising the full 3 acre option shall be $2,000,000, or
$666,666.67 per acquired acre. Should the County exercise its option to purchase less than 3 acres,
the purchase price shall be calculated to equal the acquired land valued at $666,666,67 per acre, If
exercised, the County shall use its best efforts to acquire a generally rectangnlar parcel. This option
to purchase shall be exercised by County giving Developer written notice of such election no later
than December 14, 2007. In no event may this option reduce the Development to less than 160
dwelling units. Should County exercise this option, the conveyance of this additional acreage to
County shall be conducted in the same manner as set forth in Paragraph 2 above, except that
payment for this additional acreage shall be in cash, and not in impact fee credits.
6. The credit for Road Impact Fces identified herein shall run with the Development and
shall be reduced by the entire amount of each Road Impact Fee due for each Building Permit issued
thereon until the Development project is either completed or the credits aTe exhausted or otherwise
no longer available, or have been assigned by opeTation of or pursuant to an assignment agreement
Page 3 of8
~
~
~
OR: llB1a pe~~~l~~m
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 Developer, its successors and assigns are
responsible in connection with the development of their lands. 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 the
Development.
7. The County will require an approximate 15-20 foot drainage easement to connect
Davis Blvd. to the Pond Parcel and an appropriate 20-foot wide access easement to maintain the
Pond Parcel, which easement must be approved by FDOT. This easement will be identified by the
parties and dedicated to the County on or before December IS, 2007. It is anticipated that the likely
site for this easement will be along the eastern boundary of the Development. To the extent
possible, any required buffers or landscaping that will be within the easement boundary will not be
installed until the drainage pipe has been laid along the easement. County or FDOT shall supply
Developer with all necessary drainage pipes, fencing, and ancillary structures, which Developer, at
its sole cost and expense, will install in the drainage easement during the earlier of the construction
of the Development or within a commercially reasonable time following written demand by County
or FDOT to meet the Davis Blvd. Expansion Project needs, The parties shall cooperate so that this
provision can coincide with the Developer's site work, If for whatever reason Developer is not able
to commence this work following such written demand, then County or FDOT, at their sole cost and
expense, shall do the installation, County will pay the costs of any title work and searches, and
Developer shall be responsible for all costs for promptly removing or curing any liens,
encumbrances or deficiencies revealed in any title work, Upon receipt, the County shall record the
easement in the Public Records of the County, Except as set forth herein, all costs of recording and
conveyance shall be paid by the County.
8. It is anticipated that the Developer will need an approximate 15.20 foot wide
drainage easement through the Pond Parcel to connect to its outfall. At Developer's written request,
County shall promptly provide the Developer with such an easement through a mutually agreed-
upon location. All costs associated with this easement shall be paid by Developer.
9, The County will provide the Developer with the ability to upgrade the fencing
between the Pond Parcel and the remaining land at the Developer's expense.
10. The County will use its best efforts to obtain all required permits for the storm water
pond to be located on the Pond Parcel to be excavated to a depth of at least 20 feet. Tn any event, on
written notice by County or FDOT, Developer at no charge to County or FDOT will construct the
storm water pond, in accordance with all plans and specifications provided to Developer. This
provision is intended to coincide with the Developer's site work. As full compensation for this
construction, Developer will be entitled to keep the excavated material, and will be allowed to utilize
the excavated material within the Development. Developer will be responsible for removing and
properly disposing of any excess, unsuitable or otherwise unwanted material excavated from the
storm water pond. If for whatever reason Developer is not able to construct the storm water pond
following such written demand, then County or FDOT, at their sole cost and expense, shall do the
construction, and will keep the excavated material.
r\
Page40f8
~
......
CV')
.......,
C>
p...
r-
oo
......
~
~
.::>
~
~
Agenda Item No, 16613
April S, 200S
Page S of 23
II. For a period of one year, commencing with the date first above written, sufficient
development trips have been approved and reserved through the normal development review
process. During this one year period, Developer may permanently reserve roadway capacity for
up to 206 residential units. To exercise this right, Developer shall prepay to County one.half
(1/2) of the County's estimated Road Impact Fees for the Development. Upon payment of these
fees, Developer shall receive a Certificate of Adequate Public Facilities ("Certificate") vesting
the Developer's Project to construct up to 206 residential units solely for the purposes of
meeting the County's Transportation Concurrency requirements, and unless specifically required
by law, the County shall not thereafter withhold the issuance of any Certificate of Occupancy
based on the County Transportation Concurrency requirements. Final calculation of the
remaining road and other impact fees due will be based on the impact fee schedule in effect at
the time of the issuance of building permits for such units. Payment of these fees vests the
Development entitlements for which the Certificate applies on a continuous basis for three (3)
years unless otherwise relinquished. This initial 50 percent impact fee payment is non-
refundable after payment and receipt ofthe Certificate.
12. Not later than 90 days prior to the expiration of the three-year period for the
Certificate, the County shall notify Developer via registered mail of the remaining balance due
for the estimated transportation impact fees up to 50 percent (50%), based on level of building
permits already issued. The balance of the impact fees due will be calculated at the rate schedule
then currently applicable. The Developer may elect to pay the balance of the cstimated
transportation impact fees for the entitlements for which the Certificate applies or modify the
Certificate to a lesser entitlement and calculate the balance of the transportation impact fees on
the revised entitlements. The Certificate shall be modified to include only the entitlements for
which the estimated transportation impact fees are paid. Once the balance of the estimated
transportation impact fees are paid, those estimated fees are non-refundable. The Certificate runs
continuously with the land in perpetuity after all estimated transportation impact fees have been
paid. As building permits are drawn down on the entitlements, the estimated transportation
impact fees already paid shall be debited at the rate of the impact fees in effect at the time of
utilization, If the estimated transportation impact fee account becomes depleted, the Developer
shall pay the currently applicable transportation impact fee for each building permit in full prior
to its issuance, In the event that upon build-out of the Development estimated transportation
impact fees are still unspent, the remaining balance of such estimated fees may be transferred to
another approved project within the same, or adjacent transportation impact fee district, provided
any vested entitlements associated with the unspent and transferred transportation impact fees
are relinquished and the Certificate is modified to delete those entitlements.
13. The Developer may terminate this Agreement if the contemplated conveyance of the
Pond Parcel significantly impacts the Developer's ability to develop the remaining land consistent
with the conceptual development plan as shown in Exhibit "B" because of permitting restrictions
resulting from the pending conveyance. Should Developer so terminate this Agreement, and should
Collier County or any other government agency in the future, including but not limited to FDOT,
seek to acquire the Pond Parcel through eminent domain proceedings as party of a road project,
Developer will accept the sum of $3,000,000 as compensation for the Pond Parcel. The Developer
r\
Page 5 of8
o..n
.......
cry
c--.J
e,:,
p..,
.--
co
.......
.,...
=
=
~
'~
Agenda Item No, 16813
April S, 200S
Page 9 of 23
reserves the right to make a claim for severance damages to the remainder parcel resulting from such
condemnation. This provision shall survive any termination of this Agreement by Developer.
14. This Agreement shall not be construed or characterized as a development agreement
under the Florida Local Government Development Agreement Act.
15. 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, Developer may assign all or part of the Road Impact Fee Credits,
utilizing the County's then current form of assignment, to successor owners of all of part of the
Development, or as otherwise provided for in the Collier County Consolidated Impact Fee
Ordinance.
16. 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.
17. 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 manner which best reflects the intent of this Agreement.
18. 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 as
follows:
To County:
Waterways Joint Venture VII:
Hannon Turner Building
Naples, Florida 34112
Attn: Norman E. Feder, A.I.e.P,
Transportation Division Administrator
Phone: (239) 774.8872
Facsimile: (239) 774-9370
Ann: Richard Davenport
15122 Summit Place Circle
Naples, Florida 34120
Phone: (239) 352-6610
Facsimile: (239) 352-1460
Notice shall be deemed to have been given on the next successive business day to the date of the
courier waybill if sent by nationally recognized overnight deli very service.
19. 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 County enters into
r\
Page 6 of8
'~
''''
Agenda Item No, 16613
April S, 200S
Page 10 of 23
this Agreement Developer shall pay all costs of recording this Agreement. The County shall
provide a copy of the recorded document to the Developer upon request
20, In the event of a dispute under this Agreement, the parties shall first use the County's
then-current Alternative Dispute Resolution Procedure. Following the conclusion of this procedure,
either party may file an action for injunctive relief in the Circuit Court of Collier County to enforce
the terms of this Agreement, said remedy being cumulative with any and all other remedies available
to the parties for the enforcement of this Agreement.
'-0
...-.
<""">
c-....
21. Any future reimbursement for excess credits shall come from future receipts by the
County of Road hnpact Fees. However, no reimbursement shall be paid until such time as all
development, as defmed by the County Manager or his designee, at the location that was subject to
the credit has been completed. Such reimbursement shall be made over a period of five (5) years
from the completion of the Development.
~
p...
22. An annual review and audit of performance under this Agreement shall be performed
by the County to determine whether or not there has been demonstrated good faith compliance with
the terms of this Agreement and to report the credit applied toward payment of road impact fees and
the balance of available unused credit. If the Collier County Board of Commissioners finds, on the
basis of substantial competent evidence, that there has been a failure to comply with the terms of this
Agreement, the Agreement may be revokcd or unilaterally modified by the County.
<-
co
...-.
--
t::t::
c::>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their appropriate officials, as of the date first above written.
" 'l ~\t <'".l
".". (~.;. .
Attest: " ~
DWIGHT RBi,iOC'K,Crerk
," ", ,". -~
BOARD OF COlliTY COM.\IflSSIONERS
COLLIER COUNTY, FLORIDA
BY~
JAM , al
..
~.
By:
AtteH ~ '~';"''''l. .'
II"'ttwt .rr.,' $"" C"
AS TO DEVELOPER:
Signed, sealed and
delivered in the presence of:
Waterways Joint Venture VII
By: Waterways at Hibiscus, Ltd. Partner and by
Waterways Develop ent, In as sole General Partner
~e\"\-'~LP\ .-::Ime:--
Printed Name
By:
Richard avenport, as President of
Waterways Development, Inc.
~q;e bOfYtttlez-
Printed Name
Page 7 of8
.......
........
cry
~
c..':)
l:Lo
.......
eo
......
---
0::
C>
~.
Agenda Item No, 16B 13
April S, 200S
Page 11 of 23
STATE OF ~rfr1
COUNTY OF I . Y II
The foregoing instrument was acknowledged before me this 2/)T day of FfbrUar~ ,2007, by
Richard Davenport, as President ofWateIWays Development, Inc., as General Partner fWaterways
at Hibiscus, Ltd., which is a Partner of Waterways Joint Venture VII, who is personally known to me
or has produced as identification.
Approved as to form
I al ciency:
Notary Pu
Print Name: STA( F4 I~T~
My Commission Expires: .I II ~,20IO
.,~~';~"~~;..'!. STACEY M. LOFTY
ii'.m1t-\ Notary Public. S13le of FIcw1ctI
i. : .]My Commission Expire, J",28. 2010
\:'ft."l" Ct.f.~! Comissioo ~ DO 569291
"",~!,~"" Bonded By National Notary AIIn.
latzkow
sistant County Anorney
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
LIST OF EXHIBITS ATTACHED TO AGREEMENT
Legal description and graphic rendering of Development
Legal description and graphic rendering of Pond Parcel
Legal description and graphic rendering of ROW Parcel
Form of Warranty Deed
Impact Fee Credit Ledger
^
Page 8 of8
April S, 200S
......,.... I....
,
J
'-""
TRIAD PUD
SADDLEBROOK
VILLAGE
J'\:!P
EAST
GATEWAY
PUD
N
--~--
- - - -------- ~
~BOULEvNlO (SR 84)
W
eo
.......
("')
("'..J S
~
0...
r-
eo
.......
qo
l:>::
C>
~~ '
=-r
~ rj'
PROJECT
SITE
Ii:
CEDAR
HAMMOCK
PUD
WESTf'ORT
COMMERCE
CENTER
PUD
I
I
I
I
I
)
~
- ---
CEDAR
HAMMOCK
PUD
... -'
-,'onuory ), 2007 11.28 AM 0:\20D5\0:;0117.oo.0.3 M~tique Cngil'leering\OOOJ Gernen;rl COJ'lSultQ!jt)l'l\5001 r7000.JXA.dwq
EXHIBIT A
~
ril Q? Q
---
Page 13 of 2~
N
SKETCH & DESCRIPTION
THIS IS NOT A SURVEY
NORTH QUARTER CORNER,
SECTION 3,
TOWNSHIP 50 SOUTH,
RANGE 26 EAST
SOO'OT06"W -\---..
146.59' ~;
.
w
.1 ~
=-r
' 'j'
E
s
Cl
- DAVIS BOULEVARD (SR 84)
~,...
.....-
CT'O
"'""' ~
..,
<'.I 0
,...
""
~ ,...
'"
<=>-.
<- i
00 ;..,
"'""' "
-- .,
~
~ ."
C)
ill
.0
c-
o
b
0
en
~
'0
o
"'
o
N
~
'"
on
o
"'
o
N
W
"ill
_on
....
to
o
z
NB9"..)4'06'"[ 6t>2.88'{P)
65300'(",)
:". 0:''. '''. ".....
~ '" '" ". '-.... ~. .......... :oj
POINT OF BEGINNING : 8'., '" ~ ".... ~:'
LESS AND [XC€PT PARCEL ~"~l f"5S AND [XCrPT'...?;
CENTER OF SECTION 3, '~"" '-....PARCEL ";D
TOWNSHIP 50 SOUTH, '_~" "." '., ,~
RANGE 26 EAST I ~ ,~",~>.....". '" ~
_ . n _ _ __. _ ~ ~~~~ '~~)8:~_ ~J .~i~t
LEGAl DESCRIPTION
A TRACT OF LAND srrUA.TE.D iN THE S'lATE OF
rLORID.~, CQUN fY Of COLUER, i..- YING IN
SECTION 3, TOWNSHIP 50 SOUTH, RANGE 26
EAST. AND BEING FURTHER BOUND AND
DESCRIBED AS FOLLOWS: THE WEST ONE HALF
(wl) OF THE WEST ONE HALF (WJ) OF THE
NORTHEAST ONE QUART;:R (NEi) OF SAID
SECTlmt4 3_ LYING SOUTH OF THE SOUTHERLY
RIGHT-OF-WAY LINE Of 'JAVIS BOULEVARD-
STATE ROAD 84; LESS fHE fOLLOWING
DeScRIBeD PARC[L BEGINNING AT THE
SOUTHWEST CORr.JeR OF rHE NQRfHEAsr ONE
::;;JUARTER (NEt) OF SAID SECTION 3; THENCE
"OC07'06"E. ALONG THE WEST LINE OF SAID
FRACTION 707.03 fEET:
THENCE LEJlV1NG SAID FRACT1GN LINE
NB9.34'06~E. 652.88 FEET; TO A POINT ON THE
LAST LINE OF SAID fRACTION,
THENCE SOD" T56"W, 704.31 FEET: TO A POINT
ON TrlE SOUTH LINE OF THE NORTHE/l.ST ONE
QUARTER (NEt) OF SAID SECTION 3,
THENCE S89' ~ 9'J8"W. 650.59 FrET: At DNG SAID
LINE TO THE POINT OF BEGINNING.
'OTE:
'.EGAL DESCRIPTION AS SHOWN
WAS TAKEN F~OM A BCUNDARY
SURVEy PREPARED BY
CAROL E. NELSO~, P_A
UWG. N3T50R26
DATED 10-09-06
J;:J{>L'ory 5, 2007 < 2;' PU 0 \2:,:..'5 " ,')';!j ',7,OC OJ \(}"S"!'Q...e .:nqm~!';rjnq\OOOl Gen~"li C0(15:...:lol,o."'\~oO r 110CY.iJXA. 'UOfg
EXHIBIT A-I
",ro",
~DN
,.JX)O_
,N 0
00""
..J:-;::"--
Z~Q)
E~g'
~ 0...
co
"
c:
Q)
OJ
<(
c=
'"
<'0
'"
~
p..
c--
00
........
q-<
0:::
c::>
/
I
I
I
I
I
I
I ^.
I g~
!!~ I
~~;:;~ i
<.3g I <.~
-~~~.. I ~~~~;
.~ \~E ~f.~
.r"~ ~
"~'g ~~j=;;:;;;:II:=lI::::;;:;;;J
:$~:; 1_ ,10,'" .:,":-"--';1 -,-~~___-,,<-~-' ~~
~\ I :tf:lt-g EE83 "~' )
\, ~- ::m ffi"~ i~
141 r.' , - ~ ..
III ,
II ,I.H.
I: I I . ,"
f~'I' .'ll
I'.' :s0!t<....:.<< ~ ' .. ilJ
~.' :',,::', :. ; 11 '7-
,I. : .;c "
.! . ..' .
(0-1-' '.' .".'cc
,OW I " _,r'
I ..' /,'
[:i I ~j'f!1==~{JI
. Iii' ~[iJ
"I
(1)~_~} OHv^3100B -S~'dO- U
Q
<I
~
~
~
"'
~
"
~
00
~
w
l~
~
~
.,
~z
~ll
~~o
ffi~i<
:l!~
~
"
8
2
~"
x~
f
"
.""--
"
l
!<'IT
~;
F.
~o
~~ M
1I'l'! ~
i:!i II!:
2C ::
!
"""'. """ ,Q';
. -----------:---
I
I
II ~'" ~
it .~ il
II ~E~.::
, !:;o"'&1
II ~t,~..
.'.~
Illi~lliS
II ~~a~
II '."~
Ii :!'''"~~
~
"
"
~"
:r::::J
~a
@
---~-------
~"
gO!
~l'!
g~
~5
----
Q
~
.
"
~
I'
III
~
~
I.ll
I
m
. , II
I !
I il
I 0
::0
~ ..-
.......
CO
--.I
""t:I
Q
l'..>
0:....>
l'..>
.......
~,
Agenda Item No, 16B 13
~Pfll ~, ~UU~
P no 1" f?~
N
JY
s
DAVIS BOULEVARD
(SR 84)
- - --------
----~
~ 50' ROW pi\RCEL
-----
January 3. 2C07 9..4 A.W 0'\ 2005\0::111 7 00 03 .o.tr;tiql"~ E"gi~enn9\OOO' Gsnerol ConS<.oJta/Jon\'":'UO r l/OUUJ)(C.d'fllg
EXHIBIT C
E
,
,
"
J
~
-
Page 16 of 2
N
SKETCH &
DESCRIPTION
THIS IS NOT A SURVEY
w
E
s
c\
DAVIS BOULEVARD (SR 84)-
....
-'
_____ :J
---
C2
LEGAl DESCRIPTION
~,
~~--
OJ
b
o
z
I
. --.------1
,
A TRAct OF LAND SITUATED IN THE STATE OF
FLORIDA. COUNTY OF COLLIER, LYING IN
SECTION 3, TOWNSHIP 50 SOUTH, RANGE 26
EAST, AND SEING FURTHER SOUND AND
DESCRI9LD AS FOLLOWS: CO~MENCLNC AT TriE
CENTER OF SEC"rtON 3, TOWNSHIP SD SOUTH,
RANGE 26 EAST. COWER COUNTY, FLORIDA,
THENCE NOcr07'Ofi'E ALONG THE SAID CENTER
OF SECTION LINE 2530.33' TO THE POINT OF
BEGINNING;
THENCE CONTINUiNG ALONG SAID CENTER OF
SECTION LINE. NOO'G7'05"E. 5\.53 oEET; TO A
POINT ON THE SOUTH RJGHT~OF-WAY Of
(SR 84) DAVIS BOULEVARD,
THENCE ALONG SAID RIGHT-OF-WAY LINE,
ALONG THE ARC OF A CIRCUlAR CURVE TO THE
RIGHT BEING CONCAVE TO THE SOUTH 666.92
FEET, HAVING A RADIUS Of 3224.04 FLU.
7HROUCH A CENTRAL ANGLE OF 1"51 '08"
BEING SUBTENDEO By A CHORD WHICH BEARS
N82"1 0'25"0:, FOR 66573 FEET:
THENCE LEAVING SAlD RIGHT -OF -WAY LINE
500.1 7'Sfj"w. 50.04 FEET;
THENCE ALONG THE ARC OF A CIRCULAR CURVE
10 lHE lEFT, BEING CONCAVE TO THE SOUTH
667.01 FEET. HAVING A RADIUS or 3174.04 FEET,
THROUGH A CENTRAL ANGLE OF 12"02"23" AND
SEiNG SUBTENOED BY A CHORD WHIC~ BEARS
S82'02'41"W. FOR 565.78 rEET; TO THE POINT
OF BEGINNING,
C>
~
POINT OF BEGINNING
A PARCEL OF LAND CON1A'NING 0.77 ACHES
,",ORE OR LESS
.p..
.........
co
-.J
""Cl
Q
CURVE RADIUS. LENGTH CHORD BEARING DELTA
C1 J:l2'\.04 666.92' 665.73 NBZ 10"2'5"( { 11'51'08"
---",
C2 J174.04 657.01' 665.78 S82"Q2'41"W i 12"02'2J~
~ .-
r-...>
~
r-...>
r-...>
POINT OF COMMENCMENT
CENTER OF SECTION 3,
TOWNSHIP 50 SOUTH,
~''',,~ ~uu
NOTF.
LEGAL OESCR1PTION W/J.S
PREPA~ED FROM A BOUNDARY
SURVEY PREPARED aY~
CAROL t. NELSON, PA.
OWG, VJToOR26
DAllO 10-09-05
I
_uL, u__u___'
LINE
L1
L2
DS.
51,53'
5004'
B[ARjI\IG
NO[),"07"D6~E
500' 17'S6-w
j(m~':)ry J, 2::07 1..28 P\A o \7tX)''i\O.''X)TllOi'l OJ l.Jy~;;qu'" C"9,rf!F"'<J\OOGl Ger.~r.;JJ C<lr.s,."lllilo,,\500l17DOa]XC-l_dw~
EXHIBIT C-1
~.
-~
Agenda Item No, 16B13
~pril a, 299S
Page 17 f 23
PAO..ECT NAME'
PNlCEl NOlSl:
'"ARENT 1lVoCT FOlta NO,
1'1/
WARRANTY DEED
THIS WARRANTY DEED maoo rhls_ .n _~ day o! ____.________.,
20_ . by. (hereL1lafter referrej to as gGrarto!l. 'Hhose p.:)St offICe box is iADDRfSS]
lc eet.HER COUNTY. a polihcal sl..-bdlvision 01 the State 01 Ronda, its successors cH'X1
a;;sqrls. whose post oftlC'O address &S 33Dl Tamlar:-u lraJi Ea!>i. Napos. Florida, 341 12
(hereinafter ref9f1ed 11) as -Grantee-)
J
(wtwuever useCJ here" me terms ~Granto~ ano -Grantee" InduOe all the parties to ttllS
InotnJmenl and their f8O\l<<:l.... hon.1el/8f 'epresenlA....... .ucce.sor.o and asslg",",'
WITNESSETH: That 111. G<antor, 10< and "' consicle<ation 01 thG sum 01 Ten
00...", ($10,00) and otI1'" valueb1e coosidereli:>n. reoeipl whefecl is hereby
aCl(1l0"18dged. hon>by grants, be/gHls, sells, alienS, remises. rel8ases, coowys and
ccofirms ulllO the Grantee, .. that O8I1ain land situa18 in Collier Cou'lty. Florida, !O wit:
See Altachod ExhibI1'A' _is UICOI,.o..l>od herein by reletenee.
SlJl>je<:t to _ _lctIo<ls. and """"","'>ns 01 roco<d.
T11ls IS NOT the ~ead _nv 01 the GranlO<.
TOGETHER with aU 1ho tenoments, heredllamonts arld oppu_ thereto
boIooigllog Of In 8/1j'Wfse ~
TO HAVE AND TO HOlD the same In 100 simple fo..........
AND the Grantor hereby covenants """In said Grrlntee that lhe Grantor ~s <.awfuliy
s.ni~Bd of saki land in fQQ simple; that lh9 GranlOl' t1as good rtgnl and lawful authoriry to
sell and convoy taJj land; ttlat the Grantor her~b'f tUlty warran:s the 1rtle 10 said land
and will doftjrwj thQ -.arn9 againsl tM :awtul claims "I a~ persons .".homsa;::~OIOr; arxt t~j
scud land is lroo Of all fY'ICurnbmncas. etcopt as not&d ahove
IN WITNESS WHEREOF. the said Granto< nas sl9Md and sealed the..
presents IN> day and year fi>$' ab<Mt written_
WITNESSES:
(Signalure)
By: _____
[GRANTOR NAME]
(Print Full Name)
(Signa'urn)
(Print Full Name)
c::>
:::<::I
.-
~
CO
-.J
"'<:l
G:l
.......,
(..A.>
.......,
<.....>
I
!
i
I
_L,
Agenda Item No, 16B13
April S, 2008
Page 1S of 23
EXHIBIT E
DEVELOPER CONTRIBUTION AGREEMENT
ROAD IMPACT FEE CREDIT LEDGER
I
I Beginning Balancel
$3.000.000.001
Mystiquelmpac:t fee ledger
DATE PERMrr 11 CREDrr AMT BALANCE COMMENTS
Beainninll BaI8nc:e $3.000.000.00
I
>+-
>+-
>+-
~
::>::I
.-
.........
ex>
-.J
""<::I
~
"->
<.,;..)
I'...>
.-
>+-
>+-
>+-
r:-
TRIAD PUO
N
---
w
F.
s
CEDAR
HAIilIlAOCK
PUD
SAOOLEBROOK
VlJ.AGE
.?\!O
MWS IIllIUVNlD CSR 841
~-
)
I
I
I
I
)
-=--
.-
Agenda Item No. 16613
April S, 200S
DJ3Q 19 Qf 2'3
---
fAST
GATEWAY
PUO
WESTPORT
COMMERCE
CENTER
PUD
Jarwory J. 200'1 11:2! Ni O:\200~\~117.00.0J ~ticJ~ f"ng""''''ng\oool C~ C"ons""l:qtlO't\.500117'OOO.lX.'..l1Iorq
CEO.IIR
HAl.IUOCK
PUD
.~. ."
PAO.JECT
SITE
Agenda Item No. 16813
April S, 200S
Page 20 of 23
FIRST AMENDMENT TO DEVELOPER AGREEMENT
MYSTIQUE
THIS FIRST AMENDMENT TO DEVELOPER AGREEMENT Mystique ("First
Amendment"), is made and entered into this _ day of March, 2008 (the "First Amendment
Effective Date"), by and between Waterways Joint Venture VII (hereinafter referred to as
"Developer"), whose address is 15013 Summit Place Circle, Naples, FL 34119, and Collier
County, Florida, a political subdivision of the State of Florida, (hereinafter referred to as
"County").
RECITALS:
WHEREAS, Developer and County entered into the Developer Agreement dated
February 20, 2007, recorded in Official Records Book 4187, Pages 2310-2324, in the Official
Records of Collier County, Florida ("DCA"); and
WHEREAS, capitalized terms not otherwise defined herein shall have the meaning
ascribed to them in the DCA; and
WHEREAS, the DCA anticipated the acquisition of the Pond Parcel by the County; and
WHEREAS, the DCA provided the County with an option to acquire an additional three
acre portion of the Development adjacent to the Pond Parcel (the "Additional Pond Parcel"),
subject to certain requirements as set forth in the DCA; and
WHEREAS, in order to satisfY the requirements of the FOOT, the County has deemed it
appropriate to exercise the Option to acquire the Additional Pond Parcel; and
WHEREAS, the Developer is entitled 10 terminate the DCA if the acquisition of the Pond
Parcel were determined to significantly impact the Developer's ability to develop the remaining
land (the "Remaining Land") consistent with the conceptual development plan shown on Exhibit
"B" of the DCA (the "Conceptual Plan") because of permitting restrictions resulting from the
conveyance of the Pond Parcel; and
WHEREAS, it appears that the Developer's ability to develop the remaining land as
aforesaid would be negatively impacted unless, among other things, it agrees to incur mitigation
expense in excess of that which it would have incurred but for the conveyance of the Pond Parcel
(the "Excess Mitigation Obligation");
WHEREAS, under the DCA, the County is responsible to the Developer for the Excess
Mitigation Obligation;
WHEREAS, the exact amount necessary to satisfy the Excess Mitigation Obligation is
not presently ascertainable; and
Page 1 of4
Agenda Item No, 16B 13
April S, 200S
Page 21 of 23
WHEREAS, the impact upon the Conceptual Plan as a result of the conveyance of the
Pond Parcel is not presently ascertainable; and
WHEREAS, the County and the Developer believe it is in their mutual best interests to
modify the DCA so as to identify the exposure of the County as to the Excess Mitigation
Obligation so that acquisition by the County of the Pond Parcel and the Additional Pond Parcel
can proceed without delay and without impact upon the commencement of construction of the
Davis Road widening; and
WHEREAS, after reasoned consideration by the Board of County Commissioners (the
"Board") as the governing body of the County, the Board finds that the terms and conditions set
forth below are consistent with both the public interest and with the County's Comprehensive
Plan and other regulations pertaining to development.
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, Paragraph 2 of the DCA is amended by changing the date for conveyance of the
Pond Parcel by the Developer to the County from on or before December 15, 2007 to on or
before June 15, 2008, In connection with the foregoing, the County acknowledges that it has
waived its right to elect not to acquire the Pond Parcel, provided Developer can convey title free
of liens, encumbrances and reservations,
3, Paragraph 7 of the DCA is amended by changing the date for conveyance of the
easement described therein from on or before December 15,2007 to on or before June 15,2008,
4, Paragraph I3 of the DCA is amended by adding the following paragraph thereto,
"The Developer hereby waives its right to terminate this Agreement in consideration of the
agreement of the County to pay to the Developer the Excess Mitigation Costs (as hereinafter
defined). For the purposes hereof, the Excess Mitigation Costs shall be the actual amount
expended by the Developer in connection with the satisfaction by the Developer of the Excess
Mitigation Obligation, provided that in no event shall the amount payable by the County on
account of the Excess Mitigation Obligation exceed Five Hundred Thousand Dollars
($500,000,00), At such time as the Excess Mitigation Costs are finally ascertained by the
Developer, the Developer shall provide the County with notice of same (the "Excess Mitigation
Cost Notice"), which Excess Mitigation Notice shall include a detailed breakdown of each and
every component of the Excess Mitigation Cost. Upon receipt of the Excess Mitigation Cost
Notice, the County shall have the right verify the accuracy of same, and unless the County
notifies the Developer that it disputes the amount of the Excess Mitigation Costs within fifteen
Page 2 of 4
Agenda Item No, 16B13
April S, 200S
Page 22 of 23
(15) days after receipt of the Excess Mitigation Cost Notice, it shall be conclusively presumed
that the County agrees to the amount of the Excess Mitigation Costs as set forth in the Excess
Mitigation Cost Notice. Any dispute between the County and the Developer as to the Excess
Mitigation Cost shall be resolved in the manner provided as part of paragraph 20 of the DCA.
The County shall have the obligation to pay the amount of the Excess Mitigation Costs to the
Developer within thirty (30) days after the date that same is determined final pursuant to the
terms hereof."
5, Except as modified by this First Amendment, the DCA remains in full force and
effect. If there is a conflict between the terms of the First Amendment and the DCA, the terms
of the First Amendment shall prevail.
6, The Developer shall execute this First Amendment prior to it being submitted for
approval by the Board of County Commissioners. This First Amendment shall be recorded by
the County in the Official Records of Collier County, Florida, expeditiously so that the County
will have entered into this First Amendment and it shall be been recorded prior to the Closing
Date. The Developer shall pay all costs of recording this First Amendment. A copy of the
recorded First Amendment will be provided to the Developer upon request.
(Signatures Appear Next Page)
Page 3 of 4
Agenda Item No, 16813
April S, 200S
Page 23 of 23
IN WITNESS WHEREOF, the Developer and the County hereto have caused this First
Amendment to be executed by their appropriate officials, as of the First Amendment Effective
Date.
Attest:
DWIGHT E. BROCK, Clerk
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA,
By:
By:
, Deputy Clerk
, Chairman
AS TO DEVELOPER:
WITNESSES:
Waterways Joint Venture VII
By: Waterways at Hibiscus, Ltd., as
Partner and by Waterways Development,
Inc., as sole General Partner
Print Name:
By:
Print Name:
Richard Davenport, as President of
Waterways Development, Inc.
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this _ day of
, 2008 by Richard Davenport, as President of Waterways Development,
Inc., as General Partner of Waterways at Hibiscus, Ltd., which is a Partner of Waterways Joint
Venture VII, who is [ ] personally known to me, or [ ] has produced driver's license no.
as identification,
(SEAL)
NOTARY PUBLIC
Name:
(Type or Print)
My Commission Expires:
Approved as to form and legal sufficiency:
Jeffrey A. Klatzkow
Chief Assistant Co
Page40f4