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Resolution 2009-052 RESOLUTION 09 - 52 A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA DENYING TAMIAMI SQUARE OF NAPLES, LLC'S APPEAL AND APPROVING STAFF'S ALTERNATIVE IMPACT FEE CALCULATION PURSUANT TO SECTION 74-204 OF THE COLLIER COUNTY CODE OF LAWS FOR PROPERTY LOCATED IN SECTION 9, TOWNSHIP 48 SOUTH, RANGE 25 EAST, COLLIER COUNTY, FLORIDA; PROVIDING FOR A PAYMENT PLAN AND LIEN AGREEMENT AND PROVIDING FOR A LIEN. WHEREAS, the Legislature of the State of Florida in Chapter 163, Florida Statutes has conferred on Collier County the power to establish growth management legislation which requires local governments to plan for and provide for capital infrastructure facilities and services for the protection ofthe public; and WHEREAS, the County pursuant thereto has adopted a Consolidated Impact Fee Ordinance (Ordinance No. 2001-13, as amended), codified as Chapter 74 of the Code of Laws and Ordinances), which provides for the collection for impact fees to provide a source of revenue to fund the construction or improvement of capital infrastructure facilities; and WHEREAS, the Consolidated Impact Fee Ordinance and Agreement Regarding Alternative hnpact Fee Calculation provide a procedural mechanism for an alternative impact fee calculation to be considered by the Board of County Commissioners (Board); and WHEREAS, consistent with the alternative impact fee process, the Board has held a public hearing, and after providing Tamiami Square of Naples, LLC (Petitioner) with notice, has considered the alternative impact fee calculations provided by Petitioner and by Staff; and WHEREAS, the Board has found as a matter of fact that satisfactory prOVISIon and arrangement have been made concerning all applicable matters required by the Consolidated hnpact Fee Ordinance and Agreement Regarding Alternative Impact Fee Calculation; and WHEREAS, all interested parties have been given opportunity to be heard by this Board in a public meeting assembled and the Board having considered all matters presented. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA that: 1. The Appeal of Letter Dated August 29, 2008 from Mr. Thomas G. Wides, Operations Director, Public Utilities, Collier County Water-Sewer District and Request for Alternative Impact Fee Calculation Based on Petitioners hnpact Fee Study (Appeal) filed by Doug A. Lewis, Esq., of Roetzel & Andress for Tamiami Square, LLC, with respect to the property described in Exhibit A, attached hereto and incorporated by reference herein, is hereby denied for the reasons set forth in the record and that Staffs alternative impact fee calculation of$120,904.00 is approved. The Board hereby approves the following settlement terms of this dispute: a) Petitioner shall make payment of $120,904.00 under the terms as stipulated by Petitioner in the Payment Plan and Lien Agreement, Exhibit B, attached hereto. b) In consideration of the above, Petitioner hereby waives all existing or future claims, rights, positions or defenses that Petitioner may have to challenge or appeal the alternative impact fee process and alternative impact fee calculation approved by the Board pursuant to this Resolution. BE IT FURTHER RESOLVED that this Resolution be recorded in the minutes of this Board and also in the Official Records of Collier County. This Resolution adopted after motion, second and majority vote. Done this -'O\-~ day of t----to.-rc ~ ,2009. !_ ~;~ .~ ' ,:;'t::, UNTY COMMISSIONERS OF COLLIER A, I ~$d DONNA FIALA, CHAIRMAN Attachments: Exhibit A: Exhibit B: Legal Description Payment Plan and Lien Agreement EXHIBIT A PROPERTY TAX IDENTIFICATION NUMBER: 76422000065 LEGAL DESCRIPTION: Building Site 300, Unit 300, TAMIAMI SQUARE, a Commercial Condominium according to the Declaration of Condominium thereof, dated September 1,2005, and recorded September 15,2005, in the Official Records Book 3891, Pages 1490 through 1570, inclusive, of the Public Records of Collier County, Florida. PROPERTY TAX IDENTIFICATION NUMBER: 00143080000 LEGAL DESCRIPTION: That part of the North ~ of the Southeast ~ of the Southeast ~ of Section 9, Township 48 South, Range 25 East, lying east of U.S. 41, Collier County, Florida and more particularly described as Phase II and Phase III, Tamiami Square, a commercial land condominium in Official Records Book 3891, Pages 1539 and 1540, both ofthe Public Records of Collier County, Florida. PROPERTY TAX IDENTIFICATION NUMBER: 76422000049 LEGAL DESCRIPTION: Unit 200, Tamiami Square, a Commercial Condominium, according to the Declaration of Condominium thereof, dated September 1, 2005, and recorded September 15, 2005, in Official Records Book 3891, Pages 1490 through 1570, inclusive, of the Public Records of Collier County, Florida. EXHIBIT B PAYMENT PLAN AGREEMENT AND LIEN AGREEMENT BETWEEN T AMIAMI SQUARE, LLC AND COLLIER COUNTY WATER-SEWER DISTRICT This Agreement is made and entered into on March 10, 2009 by and between Tamiami Square of Naples, LLC, a Florida limited liability company ("Developer"), and the Collier County Board of County Commissioners, Florida, ("Board") as the Governing Body of Collier County and as Ex- Officio the Governing Board of the Collier County Water-Sewer District ("County"), collectively known as (the "Parties"). WHEREAS, on May 13, 2008, Agenda Item 16C3, the Parties entered into Agreement Regarding Alternative Impact Fee Calculation ("Agreement") to allow the Developer to participate in an alternative impact fee process regarding the amount of water and wastewater impact fees ("Impact Fees") due and owing for an 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, the Parties have participated in the alternative impact fee process and the Board has approved Staffs alternative impact fee calculation for water and wastewater in the amount of $120,904 which is consistent with the Collier C01.plty Consolidated Impact Fee Ordinance; and WHEREAS, the Parties intend this Agreement to supersede, amend and replace in its entirety the Agreement Regarding Alternative Impact Fee Calculation, dated May 13, 2009. 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 shall pay $120,904 in installment payments as provided for herein for outstanding water and wastewater impact fees for Building Site 300, Unit 300 and future Unit 400 (Phase III), both of T AMIAMI SQUARE, a Commercial Condominium according to the Declaration of Condominium thereof, dated September 1, 2005, and recorded September 15, 2005, in the Official Records Book 3891, Pages 1490 through 1570, inclusive, of the Public Records of Collier County, Florida (collectively hereinafter referred to as "Building 300"). Payment will bring the total value of equivalent residential connections ("ERCs") paid to 54.9 ERCs for Water and 32 ERCs for Wastewater. 3. Installment payments shall include interest. A Payment Schedule is attached hereto. The initial interest rate is 1% per annum. The Interest Rate will be adjusted annually (January 1) based on the current Local Government Investment Pool (LGIP) 30 Day Rate. The interest calculation starting 1/1/2010, 1/1/2011 and 1/1/2012 is for estimated portrayal purposes. It will be adjusted based on actual LGIP on January 1 of each year. 4. Should Developer fail to make any installment payment when due and only after the expiration of ten (10) business days after Developer's receipt of written notice and opportunity to cure from the County, the: (i) County shall thereafter have the right at its option without additional notice to Developer to declare the entire unpaid principal amount immediately due and payable, including interest accrued, and immediately proceed with the recording of a lien against Building 300 (which lien shall be coequal with the liens of all state, county, district and municipal taxes superior in dignity to all other filed liens and claims until paid) and its collection rights and remedies, to include foreclosure; and (ii) County Attorney is thereafter authorized by the Board to take all actions deemed necessary, in his discretion, to pursue the unpaid principal amount and interest immediately due and payable, including interest accrued without further Board action. 5. Should the Developer's default not be timely cured as required by Paragraph 4 of this Agreement, the County is authorized to withhold every then unissued development order(s) applied for by, on behalf of, the landowner or Developer, on the property described in Exhibit A. "Development order" shall mean each item included in the definition of "development order" as defined in the "Adequate Public Facilities Ordinance" or its successor in function. 6. For all units in Building 300, the Parties agree that payment for incremental water and wastewater impact fees will be made to the County in the event of a change in size, fixtures, or type or intensity of use only as required by the Consolidated Impact Fee Ordinance or any ordinance in existence at the time of permitting that governs impact fees. As of the date hereof and apart from the sums to be paid to the County hereunder, impact fees due and payable for all existing and prior uses of Building 300 (as evidenced by either building permits or occupational licenses ) have been paid in full. 7. This Agreement does not require a monitoring period, and the County will not monitor Building 300 water and/or sewer flows. 8. The calculations for water and wastewater impact fees as required by the Consolidated Impact Fee Ordinance or any successor ordinance in function for future Phase II (also known as future Unit 100) and Unit 200, both of Tamiami Square, a Commercial Condominium, according to the Declaration of Condominium thereof, dated September 1, 2005, and recorded September 15, 2005, in Official Records Book 3891, Pages 1490 through 1570, inclusive, of the Public Records of Collier County, Florida are not part of this Agreement and shall be collected by the County from the respective permitee at time of building permit issuance (or upon issuance of a certificate of occupancy if permits have already been issued and have not expired), with no late fees or penalties. 9. The parties agree that 6.1 irrigation ERCs are included as part of the agreed 54.9 Water ERCs. Other than customary installation fees charged by the County such as a tapping fee, no other fees are to be paid to the County by the Petitioner for the irrigation meter installation on the property. 10. Developer agrees to waive all existing or future claims, rights, positions or defenses that Petitioner may have to challenge or appeal the alternative impact fee process and alternative impact fee calculation approved by the Board pursuant to Resolution and this Agreement. 11. If any court finds any part of this Agreement invalid or unenforceable, such invalidity or unenforceability shall not affect the other parts of this Agreement if the rights and obligations of the Parties contained therein are not materially prejudiced and if the intentions of the Parties can continue to be affected. To that end, this Agreement is declared severable. 12. This Agreement and the provIsIons contained herein shall be construed, controlled and interpreted according to the laws of the State of Florida, all then applicable provisions of the Florida Administrative Code, and the then current Consolidated Impact Fee Ordinance and such other governmental regulations as from time to time become effective, or their successors in function. 13. This Agreement runs with the land and shall be binding upon the Parties, their successors and assigns, and the County may record notice of the same in the Public Records of Collier County, Florida. 14. This Agreement terminates any previous agreements between the County and Developer. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter referenced herein. Any amendment hereto shall be in writing duly executed by the Parties hereto, or their successors in interest to the Property. IN WITNESS WHEREOF, the Parties have subscribed their hands and seals for the day and year first above mentioned. Approval as to form and legal Sufficiency: ~c.lt I? J~L~ Jennifer B. White / Assistant County Attorney DEVELOPER \11111, ~'.. ~', \. \ . . , I , J , I f / BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLO$DA, AS THE GOVERNING BODY OF COL~I~R COuNTY AND AS EX-OFFICIO THE ':.:.OOVERNING BOARD OF THE COLLIlrRi:".COUNTY ,) "'j " W ATER-S~EWER DISTRICT '<'/"1/1: ," .\\\\\\ ,.' d - '''""",,, By: DO -~c~ .' . -' PAYMENT SCHEDULE Tamiami Square, LLC Principal $120,904.00 Interest 1% per Year 0.000833 per month Maturity 3 Years 36 months Payment # Date Principal Interest * Total $ 120,904.00 1 4/1/2009 500.00 100.75 600.75 120,404.00 2 5/112009 500.00 100.34 600.34 119,904.00 3 6/112009 500.00 99.92 599.92 119,404.00 4 7/112009 500.00 99.50 599.50 118,904.00 5 8/1/2009 500.00 99.09 599.09 118,404.00 6 9/1/2009 500.00 98.67 598.67 117,904.00 7 10/1/2009 500.00 98.25 598.25 117,404.00 8 11/112009 500.00 97.84 597.84 116,904.00 9 12/112009 500.00 97.42 597.42 116,404.00 10 1/1/2010* 500.00 97.00 597.00 115,904.00 11 2/1/2010 500.00 96.59 596.59 115,404.00 12 3/1/2010 500.00 96.17 596.17 114,904.00 13 4/1/2010 500.00 95.75 595.75 114,404.00 14 5/1/2010 500.00 95.34 595.34 113,904.00 15 6/112010 500.00 94.92 594.92 113,404.00 16 7/112010 500.00 94.50 594.50 112,904.00 17 8/1/2010 500.00 94.09 594.09 112,404.00 18 9/1/2010 500.00 93.67 593.67 111,904.00 19 10/1/2010 500.00 93.25 593.25 111,404.00 20 11/1/2010 500.00 92.84 592.84 110,904.00 21 12/112010 500.00 92.42 592.42 110,404.00 22 1/1/2011* 500.00 92.00 592.00 109,904.00 23 2/1/2011 500.00 91.59 591.59 109,404.00 24 3/1/2011 500.00 91.17 591.17 108,904.00 25 4/1/2011 500.00 90.75 590.75 108,404.00 26 5/1/2011 500.00 90.34 590.34 107,904.00 27 6/1/2011 500.00 89.92 589.92 107,404.00 28 7/112011 500.00 89.50 589.50 106,904.00 29 8/1/2011 500.00 89.09 589.09 106,404.00 30 9/1/2011 500.00 88.67 588.67 105,904.00 31 10/1/2011 500.00 88.25 588.25 105,404.00 32 11/1/2011 500.00 87.84 587.84 104,904.00 33 12/1/2011 500.00 87.42 587.42 104,404.00 34 1/1/2012* 500.00 87.00 587.00 103,904.00 35 2/1/2012 500.00 86.59 586.59 103,404.00 36 3/31/2012 103,404.00 86.17 103,490.17 $ 120,904.00 $ 3,364.62 $124,268.62 *Interest Rate will be adjusted annually (January 1) based on the current Local Government Investment Pool (LGIP) 30 Day Rate. The interest calculation starting 1/1/2010, 1/1/2011 and 1/1/2012 is for estimated portrayal purposes. It will be adjusted based on actual LGIP on January 1 of each year.