Agenda 05/13/2008 Item #16C 3
Agenda Item No. 16C3
May 13, 2008
Page 1 017
EXECUTIVE SUMMARY
Recommendation to approve the Agreement Regarding Alternative Impact Fee Calculation
between the Collier County Water-Sewer District and the Tamiami Square of Naples, LLC
OBJECTIVE: That the Board of County Commissioners, Ex-officio, the Governing Board of
the Collier County Water-Sewer District (CCWSD) approve the Agreement Regarding
Alternative Impact Fee Calculation ("Agreement") between the Collier County Water-Sewer
District and Tamiami Square of Naples, LLC ("Developer").
CONSIDERATIONS: On December 27,2007, the Tamiami Square developer's representative
initiated a discussion with staff concerning potential changes to the water and sewer usage
configurations, and irrigation alternatives. In preparation for the meeting staff uncovered an
underpayment of prior water and sewer impact fees associated with property located at 14700
Tamiami Trail North. Developer was contacted and ultimately advised that $288,623.50 was due
and payable to CCWSD. The developer disputes that calculation, and desires to participate in an
alternative impact calculation process.
The mechanics of the alternative impact fee process as set forth in the Consolidated Impact
Ordinance, Ordinance No. 01-13, effective March 13,2001, will be followed. Notably, the
Agreement provides:
· No later than May 13, 2008, Developer shall arrange and attend a pre-application meeting
with the County Manager or designee to discuss the requirements, procedures and
methodology of the alternative fee calculation.
· Subsequent to the pre-application meeting, Developer shall submit three (3) copies ofthe
proposed approach to the alternate fee calculation to the County Manager. The County
Manager shall have 30 County working days to respond in writing to the proposed
approach.
· The alternative fee calculation will be submitted by the Developer and submitted to the
County Manager.
· Within thirty (30) County working days of receipt of an altcrnative fee calculation, the
County Manager shall determine if it is complete,
· After the County Manager determines that the alternative fee calculation is complete, he
will notify Developer of its completion within ten (10) days, and he shall, within thirty
(30) County working days, complete a review of the data, analysis, and conclusions
asserted in the alternative fee calculation.
· If the County Manager determines that in the alternative fee calculation the County's
cost to accommodate the existing commercial square footage and use on the Property is
statistically significantly different than the impact fee established by the Consolidated
Impact Fee Ordinance the amount of the impact fee invoiced Developer will be reduced
to a dollar amount consistent with the amount determined by the alternative fee
calculation, subject to the BCC's approval.
· In the event Developer disagrees with a decision of the County Manager that effectively
results in a denial of the alternative fee calculation, Developer may file a written appeal
petition with the BCC not later than thirty (30) days after receipt of notice of such a
decision by the County Manager.
Agenda Item No. 16C3
May 13, 2008
Page 2 of 7
· On or before thirty (30) days after the end of the alternative impact fee process and only
in the event additional Impact Fees are due and owing the County, the County shall
provide written notice to Developer of the amount of any Impact Fees due based on the
outcome of the alternative impact fee process.
· Developer shall have thirty (30) days from the date of said notice by the County to pay all
such Impact Fees in full or enter into a binding agreement with the County to make
installment payments for said Impact Fees to include the statutory interest rate which
shall only commence to accrue from and after the date a final determination is made by
the BCC on Developer's alternative impact fee calculation.
· If Developer fails to either pay in full all such Impact Fees and any statutory interest due
and payable thereon on or before the expiration of said thirty (30) day period or enter into
a binding agreement with the County regarding installment payments, the County may
only thereafter deem any such Impact Fees due and owing the County for the Property
delinquent under Section 74-501, of the Collier County Code of Ordinances and proceed
with its collection rights and remedies under Section 74-501, of the Collier County Code
of Ordinances
Should an alternative impact fee be approved by the BCC, Developer agrees to provide the
CCWSD with water and sewer flow rates on a monthly basis until two (2) years after the
approval of the alternative impact fee. At the end of each six month period within the two (2)
year cycle CCWSD will analyze the water and/or sewer flows for sewer during those six month
periods. If flows exceed the flows agreed upon in the alternative fee calculation in two
consecutive months, additional fees will become due from the developer.
As consideration into entering into this Agreement, CCWSD has agreed not to withhold issuance
of certificates of occupancy, issue stop work orders or take any other adverse action on all issued
or pending building permits based on or related to the $ 288,623.50 in disputed impact fees.
Developer, in exchange, has paid $43,444.00 the amount which it believes it owes. During the
pendency of the alternative impact fee process, all applicable statute oflimitations as to any and
all claims of the County or Developer shall be tolled and suspended.
LEGAL CONSIDERATIONS: The proposed Agreement has been approved by the Office of
the County Attorney for fonn and legal sufficiency.
FISCAL IMPACT; CCWSD has received $43,444.00 in impact fees in consideration of the
Agreement and a $2,500 application fee to cover staff costs associated with the alternative
impact fee calculation.
GROWTH MANAGEMENT IMPACT: There is no Growth Management Impact associated
with the Agreement.
RECOMMENDA TION: That the Board of County Commissioners, Ex-Officio, the Governing
Board of the Collier County Water-Sewer District approve the Agreement Regarding Alternative
Impact Fee Calculation between the Collier County Water-Sewer District and Tamiami Square
of Naples, LLC and by approval of this Executive Summary, authorize the Chairman to execute
the Agreement.
PREPARED BY: Jennifer A. Belpedio, Assistant County Attorney I Thomas G. Wides,
Operations Support Director, Public Utilities Division
Page 1 of 1
Agenda Item No. 16C3
May 13, 2008
Page 3 of 7
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
Item Number:
Item Summary:
16C3
Meeting Date:
Recommendation to approve the Agreement Regarding Alternative Impact Fee Calculation
between the Collier County Water-Sewer District and the Tamiami Square of Naples, LLC.
5/1312008 90000 AM
Prepared By
Jennifer A. Belpedio
Assistant County Attorney
Date
County Attorney
County Attorney Office
4/25/200811 :02:13 AM
Approved By
Joseph Bellone
Operations Supervisor
Date
Public Utilities
Public Utilities Operations
4/25/2008 1 :28 PM
Approved By
Jeff Klatzkow
Assistant County Attorney
Date
County Attorney
County Attorney Office
4/28/2008 5:09 PM
Approved By
Thomas Wides
Operations Director
Date
Public Utilities
Public Utilities Operations
4/29/20088:37 AM
Approved By
Jennifer A. Belpedio
Assistant County Attorney
Date
County Attorney
County Attorney Office
4/29/2008 9:08 AM
Approved By
James W. Delony
Public Utilities Administrator
Date
Public Utilities
Public Utilities Administration
4/29/200B 11 :11 AM
Approved By
OMB Coordinator
OMS Coordinator
Date
County Manager's Office
Office of Management & Budget
4/291200B 3:30 PM
Approved By
Susan Usher
Senior ManagemenUBudget Analyst
Date
County Manager's Office
Office of Management & Budget
511/2008 3 :48 PM
Approved By
James V. Mudd
Board of County
Commissioners
County Manager
Date
County Manager's Office
5/1120085:47 PM
file;//C:\AgendaTest\Export\1 07-May%20 13,%202008\ 16.%20CONSENT%20AGENDA \16... 5/7/2008
Agenda Item No. 16C3
May 13, 2008
Page 4 of 7
AGREEMENT REGARDING ALTERNATIVE IMPACT FEE CALCULATION
This Agreement is made and entered into on May _' 2008 into by and between Tamiami
Square of Naples, LLC, a Florida limited liability company ("Developer"), and the Collier County Board
of County Commissioners ("BCC") acting as the governing body of the Collier County Water-Sewer
District ("CCWSD''),
WHEREAS, CCWSD has calculated $288,623.50 in water and sewer Impact fees based on the
square footage and/or use of existing commercial development located on real property identified by the
following Collier County tax identification numbers: (i) 00143080000; (ii) 76422000065; and (iii)
76422000049 ("Property"); and
WHEREAS, Developer disputes the $288,623.50 calculatIOn. Notwithstanding, Developer has
paid $43,444.00 for water and sewer impact fees for the Property, subject to and conditioned upon
Developer reserving all of its rights under the Consolidated Impact Fee Ordinance and all other applicable
laws, ordinances, etc.; and
WHEREAS, CCWSD and Developer desire to participate in an alternative impact fee process
regarding the amount of water and sewer impact fees ("Impact Fees") due and owing for the Property and
bereby agree to withhold the filing or initiation of any claim, action or lawsuit during the pendency of the
alternative impact fee process; and
WHEREAS, CCWSD has released all current Public Utilities Division bolds or any other holds
related to Impact Fees on building permits and related certificates of occupancy pending on the Property
as of the effective date of this Agreement as a condition of payment in the amount of$43,444.00 made by
the Developer on April 3, 2007.
NOW, THEREFORE, in consideration of the foregoing premises and the following promises, the
parties agree as follows:
1. The foregoing recitals are true and correct and are hereby incorporated herein by reference.
2. Developer has tendered a cbeck in the amount of $43,444.00 for Impact Fees and $2,500.00 for:
(i) staff to review its alternative impact fee calculation; and (ii) payment of all of Developer's fees and
costs due and owing the County for the alternative impact fee process.
3. CCWSD agrees not to withhold issuance of certificates of occupancy, issue stop work orders or
take any other adverse action on all issued or pending building permits for the Property based on or
related to the $288,623.50 in disputed Impact Fees.
4. No later than May 13, 2008, Developer shall arrange and attend a pre-application meeting with
the County Manager to discuss the requirements, procedures and methodology of the alternative fee
calculation. The pre-application meeting will nonnally cover the following topics: (l) proposed previous
studies; (2) credits; (3) proposed study sites; (4) study data elements; (5) proposed data collection
methodology; and (6) report fonnat.
5. Subsequent to the pre-application meeting, Developer shall submit three (3) copies of the
proposed approach to the alternate fee calculation to the County Manager. The County Manager shall
have 30 County working days to respond in writing to the proposed approach. If the County Manager
concurs with the proposed approach, Developer will be nol1fied to proceed with the alternative fee
calculation. If the County Manager disagrees with the proposed approach, the County Manager shall
identify the problem areas for Developer to incorporate and address in its re-submittal to the County.
Developer shall be required to receive approval from the County Manager prior to proceeding with the
Agenda Item No. 16C3
May 13, 2008
Page 5 of 7
alternative fee calculation. If the County Manager has not approved Developer's proposed approach after
one re-submittal, Developer may request a decision from thc County Manager whereupon the County
Manager shall either approve, approve with conditions, or deny the proposed approach.
6. The alternative fee calculation shall be Wldertaken through the submission of an impact analysis
for the water and sewer facilities at issue, which shall be based on data, information, methodology and
assumptions contained in Chapter 74, of the Collier County Code of Ordinances and/or the impact fee
studies incorporated herein, or an independent source, including local studies for alternative impact fee
calculations performed by others within the immediately preceding three (3) years, if applicable or
available, provided that the independent source is a local study supported by a data base adequate for the
conclusions contained in such study performed pursuant to a methodology generally accepted by
professionals in the field of expertise for the water and sewer facilities at issue and based upon standard
sources of information relating to facilities planning, cost analysis and demographics and generally
accepted by professionals in the field of expertise for the pnblic facilities at issue.
7. The alternative fee calculation shall be submitted by the Developer for the Property and shall be
prepared and certified as accurate by persons accepted by the County as qualified professionals in the
field of expertise for the public facilities at issue, and shall be submitted to the County Manager.
8. Within thirty (30) County working days of receipt of an alternative fee calculation, the County
Manager shall determine if it is complete. If the County Manager determines the application is not
complete, he shall send a written statement specifying the deficiencies to the person submitting the
application at the address set forth in the application. The COWlty Manager will not be required to take
any further action on the alternative fee calculation until all specified deficiencies have been corrected.
9. After the County Manager determines that the alternative fee calculation is complete, he shall
notify Developer of its completion within ten (10) days, and he shall, within thirty (30) COWlty working
days, complete a review of the data, analysis, and conclusions asserted in the alternative fee calculation.
If this review is not completed within these time frames, and if requested by Developer, the item will be
scheduled for the next available BCC meeting.
10. If the County Manager determines that in the alternative fee calculation the County's cost to
accommodate the existing commercial square footage and use on the Property is statistically significantly
different than the impact ree established pursuant to Section 74-201 and the applicable Sections 74-302
through 74-309, of the Collier County Code of Ordinances, the amount of the impact fee invoiced
Developer shall be reduced to a dollar amount consistent with the amount determined by the alternative
fee calculation, subject to the BCC's approval.
II. In the event Developer disagrees with a decision of the County Manager that effectively results in
a denial of the alternative fee calculation, Developer may file a written appeal petition with the BCC not
later than thirty (30) days after receipt of notice of such a decision by the County Manager. In reviewing
the decision, the BCC shall use the standards established or to be established hereWlder. The appeal
petition must advise the BCC of aU issues and shall explain the precise basis Developer asserts that the
decision(s) of the County Manager is/are alleged to be incorrect.
12. Developer agrees that future permits sought for the Property seeking a net increase in size or use
and creating additional demand or impact on water or sewer public facilities will not be issued Wlless
Impact Fees due for the particular unit(s) (based solely on such size or use increase creating additional
demand or impact on water or sewer public facilities) are paid in full. CCWSD agrees that it will not
withhold issuance of permits or certificates of occupancy, issue stop work orders, or take any adverse
action relating to: (i) future permits sought for particular unites) within the Property that do not result in a
net increase in size or use and do not create additional demand or impact on water and sewer public
Agenda Item No. 16C3
May 13, 2008
Page 6 of 7
facilities; and (ii) permits for particular unites) withm the Property where additional Impact Fees are due
(given a net increase in size or use and creating additional demand or impact on public facilities) and paid
in full.
13. Should an alternative impact fee be approved by the BCC, Developer agrees to provide the
CCWSD with sewer flow rates' on a monthly basis until two (2) years after the approval of the alternative
impact fee.
14. At the end of each six month period within the two (2) year cycle CCWSD will analyze the water
and/or sewer flows for sewer during those six month periods. CCWSD hereby acknowledges that during
the two (2) year cycle the Developer will continue to lease and develop the Property and that water and
sewer flows for the Property will likely increase. In the event that actual water and/or sewer flows for the
Property in two consecutive months exceed the sum of water and/or sewer flows used in the alternative
impact fee calculation and water and/or sewer flows accounted for in the issuance of future building
permits, CCWSD can properly claim additional water and sewer Impact Fees are due and owed. CCWSD
will recover additional water and sewer Impact Fees at the then in effect Impact Fee rate.
During, the two (2) year cycle, and after its expiration, all additional future water and sewer Impact Fees
not yet accounted for or related to the $288,623.50 in disputed impact fees will be paid at the time of the
future building permit issuance.
15. For the pendency of the alternative impact fee process, the parties agree that all applicable statute
oflimitations as to any and all claims of the County or Developer shall be tolled and suspended.
16. Developer hereby waives any defense by way of any statute oflimitations which would otherwise
arise during the pendency of the alternative impact fee process.
17. This waiver shall not be construed as a waiver of any statute of limitations defense that has
become established as of the effective date of this Agreement, or which would arise after the pendency of
the alternative impact fee process; it only excludes the period during which this Agreement has operated
to toll any applicable statute of limitations.
18. It is understood that by entering into this Agreement, neither party is waiving any clallos, rights
or defenses that may have accrued up to the effective date of this Agreement.
19. This Agreement shall not be offered in evidence in any action or proceeding except with respect
to any action or proceeding related to this Agreement, or to enforce the tenns of the Agreement, or prove
that the statute oflimitations was tolled for the period oftime during which this Agreement was in effect.
20. The pendency of the alternative impact fee process will be deemed to have commenced upon
approval of this Agreement by the BCC and full exccution of the same by the parties hereto and shall be
deemed to have expired upon a fmal determination by the BCC on Developer's alternative impact fee
calculation.
21. During the pendency of the alternative impact fee process, the $288,623.50 in Impact Fees
invoiced Developer shall not be deemed delinquent under Section 74-501, of the Collier County Code of
Ordinances or otherwise and no delinquency fee, interest, or other fees shall be due and owing the County
with respect to said Impact Fees or any portion thereof which may be due and owing the County for the
Property.
22. On or before thIrty (30) days after the end of the alternative impact fee process and only in the
event additional Impact Fees are due and owing the County, the COWlty shall provide written notice to
I CCWSD will monitor the monthly water flows.
Agenda Item No. 16C3
May 13, 2008
Page 7 of 7
Developer of the amount of any hnpact Fees due based on the outcome of the alternative impact fee
process, Developer shall have thirty (30) days from the date of said notice by the County to pay all such
hnpact Fees in full or enter into a binding agreement with the County to make installment payments for
said hnpact Fees to include the statutory interest rate which shall only commence to accrue from and after
the date a fmal determination is made by the BCC on Developer's alternative impact fee calculation, The
County Manager is hereby authorized to enter into an agreement with Developer for installment payments
with a reasonable repayment period not to exceed three (3) years, If Developer fails to either pay in full
all such hnpact Fees and any statutory interest due and payable thereon on or before the expiration of said
thirty (30) day period or enter into a binding agreement with the County regarding installment payments,
the County may only thereafter deem any such Impact Fees due and owing the County for the Property
delinquent under Section 74-501, of the Collier County Code of Ordinances and proceed with its
collection rights and remedies under Section 74-501, of the Collier County Code of Ordinances,
Notwithstanding anything contained in this Agreement to the contrary, it is expressly understood and
agreed to by the parties hereto that Developer does not hereby waive or limit in any way any existing or
future claims, rights. positions or defenses that Developer may have to seek a refund for overpayment of
impact fees pursuant to Section 74-202 or to legally challenge: (i) the alternative impact ree process, (ii)
the fmal determination made by the BCe on Developer's alternative impact fee calculation, (iii) the
hnpact Fee calculation, and/or (iv) any future impact fee calculation for the Property.
DEVELOPER
~SSES:
-?,', ~L/'.P'.-/
PrintName: /;-';~f!:.. 1L9LL-
~.. "".
Print~~N
Tamiami Square of Naples, LLC,
a Florida limited liability company
A TIEST:
D~GHTE,BROeK,eLERK
BOARD 0
OF eOL
By: Crifasi Enterprises, Inc., a F1
as Manager
By:
TOM HENNING, CHAIRMAN
Approval as to form and legal
Sufficiency:
~I?..~~I:"'"
JennIfer A. Be dio
Assistant County Attorney