Agenda 03/10/2009 Item #16C 2
Agenda Item No. 16C2
March 10,2009
Page 1 of 16
EXECUTIVE SUMMARY
Recommendation that the Board of County Commissioners (Board) approve Resolution, Payment
Plan Agreement and Lien Agreement between Tamiami Square of Naples, LLC (Developer) and
Collier County Water-Sewer District consistent with the Board's February 24, 2009 adjudication
that Developer owes $120,904 as alternative water and wastewater impact fees for Building 300.
OBJECTIVE: That the Board of County Commissioners (Board) approve Resolution, Payment Plan
Agreement and Lien Agreement between Tamiami Square of Naples, LLC (Developer) and Collier
County Water-Sewer District (CCWSD) consistent with the Board of County Commissioner's (Board)
February 24,2009 adjudication that Developer owes $120,904 as alternative water and wastewater impact
fees for Building 300.
CONSIDERATIONS: On December 27, 2007, the Developer's representative initiated a discussion
with staff concerning potential changes to the water, wastewater, and irrigation demand. In preparation
for tbe meeting, staff uncovered an underpayment of prior water and wastewater impact fees associated
with property located at 14700 Tamiami Trail North. The Developer was contacted and ultimately
advised that $288,623.50 was due and payable to CCWSD for the entire development. The Developer
disputed the calculation, and informed statT of its intent to pursue an alternative impact fee calculation
process.
~
On May 13, 2008, Agenda item 16C3, the Board approved the Agreement Regarding Alternative Impact
Fee Calculation (Agreement) that allowed the Developer to proceed with an Alternative Impact Fee
Calculation Process with the CCWSD. The Developer and staff did not agree to an Alternative Impact
Fee Calculation during the Altemative Impact Fee Calculation Process. As such, on August I, 2008, the
Developer filed an Alternative Impact Fee Calculation proposal that was considered by the Board on
February 24, 2009 as Agenda Item lOA as well as alternative calculations provided by Staff. A transcript
of the Agenda item lOA was not available at the time of the writing of this Executive Summary.
However, the video of the hearing was viewed to ensure that the Board below described direction is
accurate.
After the close of the public hearing on February 24,2009, the Board made the following findings:
1. Developer owes $120,904 for unpaid water and wastewater impact fees (54.9 Equivalent
Residential Connections [ERCs] for water impact fees and 32.0 ERCs for wastewater impact fees) for
Building 300 based on a combination of historical data and the Developer's submitted data.
2. The alternative water and wastewater impact fee calculation $120,904 is consistent with the
Consolidated Impact Fee Ordinance (Ordinance) which requires a flow based methodology such as
historical flow data.
3. The Developer's submission and appeal are not consistent with the Ordinance as they do not
provide an accurate reflection of water/wastewater use or flow.
4. That the Developer may enter into a Payment Plan Agreement for the sum of $120,904 to include
the following terms:
,.--
a) The Developer is required to pay the $120,904 in installment payments for outstanding water and
wastewater impact fees for building 300 over a period of not more than 3 years.
Agenda Item No. 16C2
March 10, 2009
Page 2 of 16
b) Installment payments shall include an initial I % interest rate that will be adjusted annually
(January I) based on the current Local Government Investment Pool (LGIP) 30 Day Rate,
c) For all units in building 300, 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 as required by
the Consolidated Impact Fee Ordinance or any ordinance in existence at the time of permitting that
governs impact fees.
d) No monitoring period,
e) 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 Developer for the irrigation meter installation on the property,
f) A lien on the property for $120,904,
The Board did not specify whether a lien would be immediately recorded in the public records or only in
the event that Developer defaulted on the Payment Plan Agreement. Since the hearing date, the
Developer has advised the County Attorney's Office that the immediate recording of the lien would place
the property in immediate default of existing loans on the property which could potentially cause
foreclosure and loss of the property.
As such, the following provisions have been included in the proposed Payment Plan Agreement and Lien
Agreement:
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;
Should the Developer's default not be timely cured, 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,
Both these provisions provide the County with the maximum protection in light of the Developer's
circumstances and evidence good faith by the County.
LEGAL CONSIDERATIONS: The Resolution, Payment Plan Agreement and Lien Agreement are
legally sufficient and consistent with the Board's February 24, 2009 adjudication and findings, The
Board's consideration of this item is not quasi-judicial, and as such ex parte disclosure is not required.
JAK and JEW
Agenda Item No. 16C2
March 10. 2009
Page 3 of 16
FISCAL IMPACT: So long as developer complies with the tenns of the Pay Plan Agreement, no less
than $120,904.00 in water and wastewater impact fees will be collected by March 31, 2012 for Building
300. The interest and annual adjustment of the 1% interest rate will result in more than $120,904.00
being collected from the developer.
GROWTH MANAGEMENT IMPACT: There is no associated Growth Management Impact.
RECOMMENDATION: That the Board approve Resolution, Payment Plan A!,'feement and Lien
Agreement between Tamiami Square of Naples, LLC (Developer) and Collier County Water-Sewer
District (CCWSD) consistent with the Board's February 24, 2009 adjudication that Developer owes
$120,904 as alternative water and wastewater impact fees for Building 300.
PREPARED BY: Jennifer A. Belpedio, Assistant County Attorney I Thomas G. Wides, Operations
Support Director, Public Utilities Division
08.PUW.00099!20
Page 1 of 1
Agenda Item No. 16C2
March 10. 2009
Page 4 of 16
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
Meeting Date:
16C2
Recommendation that the Board of County Commissioners (Board) approve Resolution,
Payment Plan Agreement and Lien Agreement between Tamiami Square of Naples, LLC
(Developer) and Collier County Water-Sewer District consistent with the Boards February 24,
2009 adjudication that Developer owes $120,904 as alternative water and wastewater impact
fees for Building 300.
3/10/200990000 AM
Item Number:
Item Summary:
Prepared By
Jennifer A. Belpedio
Assistant County Attorney
Date
County Attorney
County Attorney Office
3/4/2009 10:44:02 AM
Approved By
Jennifer A. Belpedio
Assistant County Attorney
Date
County Attorney
County Attorney Office
3/4/200910:59 AM
Approved By
Thomas Wides
Operations Director
Date
Public Utilities
Public Utilities Operations
3/4/2009 12:03 PM
Approved By
James W. Delany
Public Utilities Administrator
Date
Public Utilities
Public Utilities Administration
3/4/2009 12:20 PM
Approved By
OMS Coordinator
OMS Coordinator
Date
County Manager's Office
Office of Management & Budget
3/4/2009 2:35 PM
Approved By
Jeff Klatzkow
Assistant County Attorney
Date
County Attorney
County Attorney Office
3/4/20092:47 PM
Approved By
Randy Greenwald
Manage mentiS udget Analyst
Date
County Manager's Office
Office of Management & Budget
3/4/20092:58 PM
Approved By
James V. Mudd
County Manager
Date
Board of County
Commissioners
County Manager's Office
3/4/20094:43 PM
file://C:\AgendaTest\Export\125-March%20 1 0,%202009\16. %20CONSENT%20AG ENDA \ 1... 3/4/2009
Agenda Item No. 16C2
March 10. 2009
Page 5 of 16
RESOLUTIOK 09 -
A RESOLTJTlON OF THE BOARD OF COUNTY C02\1MISSIONERS
OF COLLIER CmJNTY, FLORll)A DENYING TAMIAMI SQUARE
OF KAPLES, LLC'S APPEAL AND APPROVING STAFF'S
ALTERNATIVE I\WACT FEE CALCULATION PURSCANT TO
SECTlON 74-104 OF TIlE COLLIER COUNTY CODE OF LAWS
FOR PROPERTY LOCATED ~ SECTION 9, TmVNSHIP 48
SOUTH, RANGE 25 EAST, COLLIER COUJ\TY, FLORIDA;
PROVIDING FOR A PAYMENT PLAN AND LIEN AGREEMENT
/"-"D PROVIDING FOR A LIEN.
\VHEREAS, the Legislaturc of the State of Florida in Chapter 163. Florida Statutes has
confcrred on Collier County the power to cstablish growth management legislation which requires
local governments to plan for and provide for capital infrastructure facilities and services for the
protection of the public; and
\VIlEREAS, the County pursuant thereto has adopted a Consolidated Impact Fee Ordinance
(Ordinance No. 2001-13, as amended), codiIicd as Chapter 74 ofthe Code of Laws and Ordinances),
which provides /()r the collection for impact fees to provide a source of revenue to fund tbe
constmction or improvement of capital infrastructure facilities; and
WHEREAS, the Consolidated Impact Fcc Ordinance and Agrccmcnt Regarding Alternative
Impact Fee Calculation provide a proccdural mechanism for an altcrnative impact fee calculation to be
considcrcd by the Board of County Commissioncrs (Board); and
\VHEREAS, consistent \vith the alternative impact fcc process, the Board has held a public
hcaring, and after providing Tamiami Square of Naples, r ,LC (PetitlOner) with notice, has considered
the al1emative impact fee calculations provided by Petitioner and by Staff; and
WHEREAS, the Board has found as a malter of fact that satisfactory proVision and
arrangement have bcen made concerning all applicable matt.ers required by the Consohdated Impact
Fee Ordinance and Agrccmcnt Regarding Altel11ativc Impact Fee Calclllation; and
WHEREAS, all intercsted panics have been given opportllnity to be heard by this Board in a
public mecting assembled and the Board having considcrcd all matters presented.
NOW, THEREFORE, BE IT RESOL VED BY THE BO,A.RD OF COUNTY
COI'vL\1ISSlONERS OF COLLIER COUNTY, FLORIDA that:
I. The Appeal of Letter Datcd August 29. 1008 from Mr. Thomas G. Wides, Operations
Director, Public Utilities, Collicr County Water-Sewer District and Request for Alternatlve Impact Fce
Agenda Item No. 16C2
March 10, 2009
Page 6 of 16
Calculation Based on pctitioners Impact 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, attach cd
hereto and incorporated by reference herein, is hereby denied for thc reasons set forth in the record and
that Staff's alternative impact fee calculation of$120,904.00 is approved.
The Board hereby approves the following settlement tenllS ofthis dispute:
a) Petitioner shall make payment ofS120,90400 under the tem1S as stipulated by
Petitioner 1I1 the Payment Plan and Lien Agreemcnt, Exhibit B, attached hereto.
b) In considcration of the above, Petitioner hereby waives all existing or future
claims, rights, positions or defenses that Petitioner may have to challenge or appcal 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 day of . 2009.
ATTEST:
DWIGHT E. BROCK, CLERK
BOARD OF COUNTY COM~lJSSIONERS OF COLLIER
COUNTY, FLORIDA,
By: _______._
DONNA FIALA, CHAIRI\'IAN
Approval as to fonn and legal
SufflClcncv: -
~i:;~.:\~~._-
Jemll'tCr B. White
Assistant County :\ttorrtcy
Attachmcnts:
Exhibit A:
Exhibit B:
Legal Description
Paymcnt Plan and Lien Agreement
Agenda Item No. 16C2
March 10, 2009
Page 7 of 16
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], 2005, and recorded September 15. 2005, in
the Official Records Book 3891, Pages ]490 through 1570, inclusive, of the Public Records of Collier
County, Florida.
PROPERTY TAX IDENTIFICATION NUMBER: 00143080000
LEGAL DESCRIPTION:
That part of the North ',j of the Southeast 'I, of the Southeast "~ of Section 9. Township 48 Suulh,
Range 25 East, lying cast of U,S. 41, Collier County, Florida and more partIcularly descrihed as Phase
JI and Phase III. Tamiami Square, a commercial land condomimum in Official Records Book 3891,
Pages 1539 and 1540. bolh ufthe Puhlic Records of Collier County, Florida.
PROPERTY TAX IDENTIFICATION NUMBER:
76422000049
LEGAL DESCRIPTION:
Unit 200, Tamiam; Square, a Commercial Condominium. according to the Declaration of
Condominium thereof. datcd September J, 2005, and recorded September ]5, 2005, in Official
Records Book 3891, Pages 1490 througb 1570, inclusive. of the Public Records of CDllier CDunty,
FlOrida
Agenda Item No. 16C2
March 10, 2009
Page 8 of 16
EXHIBIT B
PAYMENT PLAN AGREEMENT MD LIEN AGREEMENT
BETWEEN
1 AMIA!\ll SQUARE. lLC AND COLLIER COUNTY WATER-~WER DISTRICT
m /U'>.<-h ~ -= L..)
This Agreement is made rmd elltered into on r _:..~", i ~, 2009 hy al1d ;,etween 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 Counly Waler-Sewer Di,trict ("County"), collectively
known as (the "Partics").
WHEREAS. on May 13, 2008, Agenda Item 16C3, the Partie, entered into Agreement
Regarding Altcmativc Impact ree Calculation ("Agreement") to allow the Developer to participate in
an alternative impact fee process regarding the amoullt of water and wastcwater 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) 76422000()65; and (iii)
76422000049 ("Properly"): and
WHEREAS, the Parties have participated in the alternative impact fec proce,s and the Board
has approved Staff s alternative impact fee calculation for water and wastewater in the amount of
$] 20,904 which is consistent with the Collier County Consolidated Impact Fee Ordinance; and
WHEREAS, the Parties intend this Agrcemenlto supersede, amend and replace in its cntircty
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:
I. The foregoing recitals are true and correct and are hereby incorporated herein by reference.
2. Developer shall pay $] 20,904 in installment payments as provided for herein for outstanding
water and waslewatL'T impact fees for Bui]ding Site 300, Unit 300 and future Unit 400 (Phase !Il), both
of T /\..\1] AMI SQUARE. a Commercial Condominium according to thc Declaration of Condominium
thereof, dated September I, 2005. and recorded Septcmbor 15, 2005, in the Official Records Book
3891, Pages 1490 through 1570, inclusive. of the Public Records of Collier COUJlty, Florida
(collectively hereinafter referred to as "Building 300') Payment will bring the total value of
equivalent residential cOlll1ections ("ERCs") paid to 54.9 ERe. for Water and 32 ERCs for
Vtr7aslewater.
3. Installment payments shall include interest. A Payment Schedule is attached hereto. The
initial inlerest rate is 1% pcr annum, The Intcrcst Ratc will be adjusted alll1ual1y (January 1) bascd on
the current Local Government lnvcstment Pool (LGlP) 30 Day Rate. The intcrest calculation starling
til1201O, 1/]1201] and 111/2012 is for estimated portrayal purposes. It will be adjusled based on
actual LGIP on January I of each year.
4. Should Developer fail to make any installment payment when due and only after the expiration
of ten (10) business da)'s after Developer's receipt of written notice and opportunity to cure from the
Agenda Item No. 16C2
March 10, 2009
Page 9 of 16
County, tile: (i) County sl1all thereafter have the right at Its op1ion withouI addition,,1 nolice to
Developer to declare the entire unpaid principal amount immediately due and payable, including
interest accrued, and immediately proceed with the rccording of a lien againsl Building 300 (which lien
shall be coequal with the liens of all state, county, district and municipal taxes supenor in di!,'llity to
all other filed liens and claims until paid) and its collection rights and remedies, to include foreclosure;
and (ii) County Attorney is therealler 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,
ineluding interest accrued without further Board action.
5. Should tbe Developer's default not be timely cured as requircd 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 propeIty described in Exhibit A. "Development
order" shall mean each item included in the definition of "development order" as deiined in the
"Adequate Public Facilities Ordinance" or its successor in function.
6. For all unil~ in Building 300, the Parties agree that payment for incremental water and
wastewater impact [t;es will be made to the County in the event ora change in size, fixtures: or type or
intensity of use only as required by the Consolidated Imp"ct Pee Ordinance or ony ordinance in
existenee 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 evideneed by either huilding pemlits or oecupatlOnallieenses) have been paid in full.
7. This Agreement does not require a monitoring period, and the County will not monitor
Building 300 water andJor sewer !lows.
R. The calculations for water and wastewater impact fees as required by the Consolidated fmpact
Pec Ordinance or any ,uccessor ordinance in function for future Phase II (also known as fl1ture Unit
1(0) and Unit 200, both of Tamiami Square, a Commercial Condominium, according to the
Declaration of Condominium thereof. dated Septcmbcr 1,2005, ond recorded September 15, 2005, in
OtTIcial 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 pcnnit issuance (or \Ipon issuance of a certificate of occupancy if permits
havl: already been issued and have not expired), with no late fees or penalties.
9. The parties agree that 6.1 Irrigation ERes are included as part olthe agreed 54,9 Water ERes.
Other than customary installation fees charged by the County such as a tapping tee, no other iees are to
be paid to the County by the Petitioner for the irrigation meter installation on the propeny.
10. Developer a,,'fees to waive all eXIsting or future claims, nght" positIOns or defenses that PeliIioner mny
have to challenge or appeal the aftematn'e impact fee process and alternative impact fee calcujauon approved by
lhe Board pursuant to Resolution and this Agreement.
II. If any court tinds any pan of this Agreement invalid or unenforccable, such invalidity or
unenforceahility shall not affect the other palis of this Agreement if the rights and obligations of the
Parties conlained therein arc not materrally prejudiced and if the intentions of the Parties can cominue
to be affected. To thai end, this Agreement is declmed severable.
Agenda Item No. 16C2
March 10. 200R
Page 10 of 16
12. This Agreement and the provisions contained herein shall be construed, controlled and
interpreted according to the Jaws of the State of Florida. ell then apphcable provisions of the Florida
Administrative Code, and the then current Consolidated Impact Fee Ordinance and such other
governmental regulations as from time to lime become effective, or their successors in function.
13. This Agreement runs with the land and shall be binding upon the Parties, theirsuceessors and
assigns, and the County may record notice of the sume in tbe Public Records of Collier County,
Florida.
14. Ibis Agreement tenninates any previous agreements between the County and Developer. This
Agreenlent constitutes the entire agreement between the Parties with re,-peel to the subject matter
referenced herein. Any amendment hereto shall be in writing duly executed by the Parties hereto, or
their successors in interest (0 the Property.
IN WITNESS WHEREOF. the Parties have subscribed their hands and seals for the day and year
fust above mentioned.
wICti..; ':5:
\ 1,,__-
-\,,-..,.-..-......--
I'r:ztnl ~1e: rV~p" (~'~rH'''''S
~/ r
C-M .....~~
rnnt Nam~N SB..tJt/I-c;/V
A TrEST:
DV,1GHT E. BROCK. CLERK
DEVEWPER
, Deputy Clerk
BOARD OF COUNTY COMMISSIONERS
or COI.!.fER COUNTY, FLORIDA, AS THE
GOVERNING BODY OF COLLIER COUNTY
AND AS EX-OFfICIO TIIE GOVERNINC1
BOARD OF THE COLLlER COUNTY
W ATER-SE\VER DISTRICT
By:
DONNA FIALA, CHAIRMAN
Approval as to form and legal Sufficiency:
" 0' '. \'
"\ ~ I V'--'....,_:::S~
Jennitii?B. White
Assistant County Attorney
Agenda Item No. 16C2
March 10. 2009
Page 11 of 16
PAYMENT SCHEUULE
Tamiami Square, LLC
Principal $120,904.00
Interest 1% per Year 0.000833 per month
Maturity 3 Years 36 months
I'a,'mcot # Date 'lrincipal Interest * Total $ 120,904.00
J 4/1/2009 500.00 10,1.75 600.75 120,404.00
2 5/l 12009 500.00 100.34 600.34 119,904.00
3 61112009 500.00 99.92 599.92 119,40400
4 711/2009 500.00 99.50 599.50 t 18,904.00
5 S/II2009 500.00 9909 599.09 11S,40400
6 9/112009 500.00 98.67 598.67 1] 7,90400
7 10/1/2009 500.DO 98.25 598.25 I] 7,40400
8 I I11/2009 500.00 97.84 597.84 116.904.00
9 I 211/2009 50000 97.42 597.42 ] 16,404.00
to ]/J!2010* 500.00 97.(10 597.00 115,90400
11 2/l!201O 500.00 9659 596.59 J 15,404.00
I2 3/1/2010 500.00 96.17 596.17 ] 14,904.00
13 4/1/2010 500.00 95.75 595.75 114,404.00
14 5it /2010 500.00 95.34 595.34 113,904.00
IS 6/1/2010 500.00 9492 594.92 113,404.00
16 7iL2010 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 1201 0 500.00 93.67 59367 ] 1 ] .904.00
19 1 0/I120 10 500.00 93.25 593.25 1] 1,404.00
20 11/]/2010 500.00 92.84 592.84 110,904.00
21 12/l/2010 500.00 92.42 592.42 110.404.00
22 J/l/20t I * 501l.00 92.00 59200 109.90400
?' 2/112011 500.00 9159 59159 109,404.00
_0
o~ 3/]/20 II 500.00 9L17 59L17 108,904.00
~~
0- 4/1/201 ] 500.00 90.75 590.75 108,40400
-)
26 5/1 12011 500.00 90.34 590.34 107,904.()O
27 6/]12011 50000 8992 589.92 107.404.00
28 71112011 500.00 89.50 589.50 106,904.00
29 8/1/2011 500.00 89.09 589.09 106,404.00
30 9/l/20 II 500.00 88.07 588.67 105,904.00
31 10/1/2011 500.00 88.25 588.25 105,40400
32 11/1/201 ] 50000 87.84 58784 104.904.00
33 12/1/2011 50000 87.42 58742 104,404.00
34 J/J!2.012* 500.00 87.00 587.00 103,904.00
35 2/l/2012 500.00 86.59 586.59 103.40400
36 3131/20] 2. 103,404 00 86.17 103,490.17
5
120,904.00
$ 3,364.62
$] 24,268.62
*Interest Rate will be adjusted annually (January 1) based on the
current Local Government Investment Pool (LGIP) 30 Day Rate.
The interest calculation starting 111/2010, 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.
Agenda Item No. 16C2
March 10, 2009
Page 12 of 16
.
.
.
Agenda Item No. 16C2
March 10, 2009
Page 13 of 16
AGREEMENT REGARIlING ALTER:-iATIVE !MPj\J:.T FEE CA!.CELA TJO~
l11is A[,lTccmcnt 1.';; made a:ld cntered into on ,~1iiY J 3 , 200R into by cmd between Tamtami
Square QfNaples, LLC, a florid;;). limited liabdity comp;H1Y ("Developer"), and the Collier Cnur:1y Board
of COU!1:Y Comrr::iss-ioncfs ("BCe") nl..:ting CIS the: governing hoJ)' of the Collier COl1nty W"atcr-Sewcr
Ois!lie: ("CCWSD").
\\TIEREAS, CC\VSD 112S calcufattd S28~,623 50 m water and ~cwcr I::lpact fees based on ~hc
square foot2-gc dTlJlor use- of I..:xl.slmg commcrcii.ll ocveIopment loc<:!ted on rea] propclty idC':1tificd by the
following Coll~cr Cmmty t,iX Jdcntlf"icatioa n;J~ther.s: (i) OOJ4JOROOOO: (ii) 7r'i~22000065; and (iii)
'164220()OOt.9 ("Property"); and
~wHEREAS, Dev'eloper disputes :hc 1288,623.50 c;~ku;atjon. >Jotwlth~tanding, Developer ~_c.S
paid $43,144.00 [or water and .';e:V\<:r Impact G~cs felT the Prnp~:t}., subJect ~o M.nd cO:1ditjo:l~d ~pon
Devdopcr re~jcrvlTIg 3H of 1t$ rish[5 tt::.deT [he CO:l.;o)idalcd Impact Fee Ordio3!l-:e and :'1.11 OtJKT appl1c301e
lrj\~:5, ord:n2:l1ccs, ~t:::.; ap.d
\VHEREA_S, CC\VSD and DevcJor~r desIre to parti::it-!ate In an altematlve rmpacl fer. proCESS
rtgarding the amount of water fwd sewer impact fees ("lmp.:lct G':ees") due and owing for the Property 3nd
he:-etly 3!:,'Tee 10 Wi[tUlOld tbe filmg 01 jlli~iati()n uf an.',.: claim, action or lawsuit eluTing the pellcler:cy o[ the
altema~ivc lnpact fc::e process; and
\VHEREAS, CCWSD h?s n_.l~d._',cd ali curren, PubLc 1:trtit1t's D1Vision holds Cl:- any other holds
feinted to Imp<lct Fees on buldil'g ?f:n:-,its ;II:cl rtlmed c.eJt:fic<1t~s. of o(;cupancy pending on the Property
.a::.: o[ the ~ffective datt of thlS Agreer.:lent as J COT"!di:ior.. of payment 10 the amDunt of $43,444.00 :nzde by
the Dcvc:loper un April 3, 2001.
'JO\V, THEREFORE, in consideration of r'he foregoing premises <llId the following promises. the
panies agree as follows;
L The foregoing recitals a:-e true ,'lr.d correct and are here-by incorporate.d hcrci:1 by reference_
). Oevdoper har tcndered ;) c~cck in the amot.:l,t of $43,44400 for Impacl fees a:lO $2,500.00 for:
(i) staff to revic\v its altc:-:1a~i\'c lTl"Qacr fec calcuhuion: and (ij) p::tyment of (Ill of Developer's fees and
cos!s dL.e and QWi:lg the COUnTY for the a1rem:::ltive inlpact fee procesS".
3. CC\VSD agrees not 10 \\,-jthho;rl issc3nce of certificates of OCCLp<t~(,;Y. Issue .stop work orders or
take any other adve:-se action on a~r IS5l:ed or pending buiJrl:ng pe:T1its for the Pmpcrry hascd on or
re-bted to the S2R8,623.50 iT:; dlSpute:d Impac~ Fees.
4. No later lhan 1...1ay 13.1008, Developer sh:l1t arrange and attend a pre-appli\::iltion meetmg \\'lth
the County ~..1anagcr to disclIss the regulTCr:lC;J!S, proc~dll~es 3nd me:hodology or the alternative :'ec
caJculation. 111e pre-application meet:ng \\'111 noml<t!ly ~over the following tr,pics: (1) proposed prCVil)US
stucies; (2) credits; (3) propos~d study sites; (4) study data dc-mcnts; (:)) proposed data colle(.;~i(ln
methodology; and (6) report fonnat.
5. Subsequent to the pre-application meeting, lkve1opt'T shall s,Jbmit three (J) copies of the
propose..d appro.1c.o to rb~ altemat~ fee calculatIOn to the County :\1::mager. The Cc\unty Manage:- shall
nzve 30 County working days to respond ill \'.'rjril~g to the pwpm.ed apPlQach. If the County Manager
C0!1ClliS '\.vi!h the ?roposcd approach, Developer w:1I be notJfied to proceed Wlt~ the a'~cm3:~ve fee
;:::alculation. 1f the Co:.mty \.rar:agcr di<.;agrcc:s. with t2'.e propo~d :1ppro<lch, the County Manager ,;h;)lI
iut;nr~fy the problem ar~as for Devclo;1cr to incnrpOI;11e oLd 8ddress :n Hs re-sllbITljt~a] !o the CO:Jllty.
.J
-
.
Agenda Item No. 16C2
March 10, 2009
Page 14 of 16
alt~matl\'e fee calctllatic)tl. !fthe COl1nty \1anagcr has. not approved Developer'5 proposed appm.aC;.h after
unc n:-submittalt Developer may request a decision fi.om the County :Managcr whereupon the County
M<:mager shall either approve, approve v~.'ith conditions, or deny the proposed a~proach
6. The Jller;~ative fee calculation shall be ulldertakt.n throueh the submission of an irnp<tct ana~ysis
fo:- the water and sewer facilities. at issue, wbich shall he. based on data, infom1ation, methodology and
<lssurnptlons contained in Chapter 74, of the Collier" Coun0' Code of Ordjn:mc~s 3i1d/or the impElc;t fee
studies jrJcorporated herein, or an inJependent source, i!1clll.din~ iDeal stLJies for altemati've impact fee
calculations performed by others within the immedIately preceding three (3) ye2T$, If applicable or
aV<111ab!c, pro\.1ded that the independent source: is a local study supported ~')y a data b2.sC adcquat: for the
concJusr0:15 c.ontained in such study ?cdormcd pursuant to a meG'lOdology generally accr:::pted by
professiunals iII the field of expeltise for tLe \.V:.1ter and sewer facilil:es at Issue and based upon standard
sources of inforTrJation re1abng to :aci1it:~s planning, cost analysis and d('TI1o~.rrarhics and gen~alJy
accepted by professionals in the. field Dr expe:.,..tise- fOT fIle: public facliitlcs at lS5lLe.
J. The altcffiJ.lin: fee calculation s-:w1l he ::.ubmittcd by the Developer for the Property .and sllall be
prepaJed and certified :IS accu:-ate by pcrsor.3 accepted by the County as quallfitd profession.als :n :he
field of c:xpe:""tlse for tl1e public [acil1ties at ;ssuc, ar:d shall b~ submitted to the CO'.lnty Manager.
~. Within thirty (30) COlllY';Y working dnys of receipt of an altcmJ.tlv:; fee c3~cu]a{ion, the CDunty
Manager shall detennlm:' if it is complete. If the ('ounty 1-.1an?..gcr determines the application is not
complete, he shall send a vrritl"en stat~menr specifying the detic:encie;; to the pers.on submitting the
application at the address set forth in tbe application. The CO':JI:ty ;\1anagel wlll not be required to take
<Iny fur-lIe:'" 2.ction 011 the alternative fCf, r:akllbtior:. lIntil all specified deficiencies have heen corr~(;tcd.
9. After tbe CO;L"lty Manager detenmnes rhat t:1e alterr.<:ttive: fee calculati"n 1.<; complete, he sh,ll1
nOlify Developer of its completion "v~lhin Len (10) days, and :le shall, within tlmty (30) County \vorking
days, c:omplete a review of the data, :malysls, and conclusions asserted In the :11t:;O:n1ative fee calculatlor;
ff this :-::V1CW i5. not cornplelerl within these t1rne frames, a:1d if Jctjues:ed by Developer, the item wilJ be
5cheduied for the next availJble Bee medlng
JO. If the County Man<=lger determine, that in the alternative fee calculatIOn the County's cost to
accommodate :hc l:xisting commercial square footilge and use on the Property is :.tallstically SII,,'111fi.canlly
dlfferent than th~ imvacf. i"ee established pursunnt to Sectlon 74-20 l and the applicahle Sect!ons 74-.J02
through 74-309, of che Co1hcr County Cod!:: of Ordinances, the aniot:nt of the impact ref: ir:voiced
DcvclopcT shall be :-educed to a dollaT amount consistent with lhe. :Hr.OL:lt determmed by ~hC" ahl.:native
fee calcul<ltioD, suhject to the Bee's approval.
11. In the event Developer disagrees with a deClsion of the County Mo1nager that effectively -results in
a denial of the nlternativc fee calculation, Developer may file a wri~ appeal petition with the Bee not
bter than thirty (30) days after rccc:pt of nodce of such a decision by the County I\lanager. In re:vle;.\vmg
th~ decision, tht: BeC shall llse the s~,anda[ds r.stahlished OT to he estabhsned hereunder. The a~pcal
petition must advise the Bee of all15sues and shall explain the precise basis Developer asserts that the
deciston(s) of the County lvral1ager Is/are alleged to be mcorrect.
12. Developer agrce-s that future permits sought for the Proper1_y seeking a net increase in size or use
and cre.c.!t:ng additlonal demand or impact on Water or sewer public f<lciIlties \Ylil not be issued unless
1mpl]:~ Fecs due: for the particular unites) (based solely on such size or lJ~E increase cr~ating 3ddl!lonal
demand or Impact on WiJter or sewer p:.Jbhc f3Cllities) <ire p~id ill fulL CC\VSD agrees that it will no!
withhold issuance of permits Of cerllfl:;ates. of occl;pancy, issl!e stop work orders, nf take any rldverse
action relatmg to; (j) fu':w-e pr::-mjts ~ought for particular 'Jnit(s.l within ~he Property that do Hot re5~lt in a
net incre)se in :;.:ze or ~~s~ Jnd do not create 3dditional dc,rr:and or impact on ......'ater and sewc:r public
.
.
.
Agenda Item No. 16C2
March 10, 2009
Page 15 of 16
\.
facllitics; <:lnd (ii) permits for parti::::u;i3r unit(s) ,"vlthin the Prop~rty where .:ddltional1rnpacl Fees are due
(given a net incre2se in size Of use ::md creolir;g adcillonal demand or impact on public laciliti;;:s) and paid
in fill!.
13. S:lould :m alternatiye' impact fee be appro\'erl by the RCe, Developer 2b'1fees to provide the
CCW SD '.'v'Jt:l Se\ler flow rates.! DIl a mon/hly basis untIl two (2) )'ears after t:1r.: a p;Jrov21 of the a]terrlJhv~
,mpi3ct fee.
14. At th:-: cnd of each six mOnTh pcnod ,l,';thin the two (2) yeaT i..:y~]e CCWSD v,ill analyze the w3ter
anJ/or sewe~ flows for sewer during those six montr: periods. CC\VSD hereby acknowlc:dges that during
fle two (2) year ~~yde the Deve!o?e[ \'lilt contillue to lease and develop thr. Proper:y and that ..vater a:ld
sewer flows for lh~ Propc:rty will likely incrc2:se. In ~~c cvt:nllh.3t actllil! water and/or se\ver flows for the
Property in two consccu~jve mDEths exceed the sum of water a:;dior sew.:;r f10ws used in the alternative
impact fee c8.JculatioTl Jnd water and/or ~twer 00\\'5 dc(;()urJed for in tbe issuance of future buiiding
permits, CC\VSD caD properly clalni 2rlfjtional ',valer 8nd ~cwer Tmr~ct F:::~s are (ice i'lfld nwt':d_ CC\VSD
will recover addition<.il wat~r ~tJd Sf':Wr~r r,npact Fe-co; at the then m effect Imp:lct FC"~ rate.
Dl..::-ing, the two (2) year cycle, and ant: Its expiration, zdl :dditiol131 :!ltl1rc \valcr and sewer Impact Fees
not yet ar;ccl\mted for Dr rclakd to tht )/_S8,623.S0 i:1 chsptited i1~pact fees wiH be -;JJ.jd ::t the time- of the-
futu:-e buildinG permit :s:,,;u,mcc,
15. for the pendency ofthe aJtemalive llllpact fee ;)rOCeS5, the pai1ies agree that all app)icf\bJc statute
of limitations as to any flnc an claims oflhe Cour.ty or DeveJup::r shall be toJled and suspended.
J 6 lJcveloper :lere'by waives ;:ny Jefense by v..-'::IY of any ~talute of ttrnitations ",chich wodd other~:ise
ari~c during (ne pendc:nC)' of the alternative impJcl fee proc:::s,~,
17. This waiver :;hall :1Ot be construed as a ....'aivcr of any statute of [~mitations ddcnse that hilS
become eSl:4hhshcd as of Lne effedive date of this Agreement, or whIch ,>vould mise after the pendency of
~he alternative impact fee procc.',s; It only exctud~5 the period during "...-tuen thIs Agreement ~2.s. operated
10 toll any 2pplica:,le ~tanJie ofbmilatlons
18. It is unders~ood that by entering mto this Agreement, ncltr:er /laG:' is willving any claims, rights
or defenses that m3.Y have :i:.;crueJ up to lhe effecrive date ofthis Ag:rcemeIH.
19. Tlll~ J\grccmcnt ,snaIl not be o~l::::red in e\'ider:~e in any Jctio:l or proceeding excep: wlth respect
to any actlOn or procccchng related to th::;; Agreemt:ot. or 10 cr:.iorce the terms oftne Agre~;nent, or prove
th<'lt the statute of limilarions ',I,.'as ~oll~d Cor the pc:'riou of t~m(; Juri:1!?; which this Ab'Tecment was in effect.
20. The JX.'1luency of t.he aJtemative impact fee process will be deemed to have commenced upon
approval of this. Agreement by the: Bee and full execution of .he same by the pa.-ries hercw and shaH Je:
deemed to have expir::d u;JOn a final Jdl,Tmmatron by Lhc Dee on D::cvclojJer's alternative impact fee
calculation.
21. During t:le pendency of the alternatiye Impact fee process, the $288,623.50 in Impact Fees
lnvojc~J Devdo~)cr 511<)11 not be deemed delinquent under Section 74-501, of the ColliEr County Code of
Ordinances 0, otherv.rise and no delinquency fer':, imerest, or other fees shall be due and owing the COW1~Y
\lith respect to _t;aid fmpact Fees or any portion thereof which may be d:J~ and owing t~e County rOT the
Property.
22. On or hefore thirty (30) d3YS after the end Df the alternative irr:pact fee proce;s a.id O;)Jy m the
event addltionat Impact Fc:C'~ are due and owmg the C(mnty, [he COllnl}' shall provide \l{ri~ren notice :0
I CC\V'SD will n:oilitor the monthly water ilowsc
J
--
.
Agenda Item No. 16C2
March 10. 2009
Page 16 of 16
Developer of the amount of any Impact Fees due oas~d on the outcome of the alternative lmp:iCt fee
process. Developer shall have thirty (30) days from the date of said notice by the County to ri3Y aU SUdl
Impact Fees in fuJI or enter into a hinding agreement with th~ Cour.ty 10 make im;taHmcnt payments for
smd Impact Fees to include the swtutory Interest rate which shall only comIiu:nce fa accmc from and after
the date a final determination is made by the Bee on Developer's alternative impact fee L:afcul.1tion, The
COU:lty Manager is hereby :authorized to enter into an agreement with Developer for installment payments
w;tn a reasonable- repayment peri.od not to exceed th.1:ee (J) years. If Developer fails to either pay in :ull
aJl sllch Impact Fees and any statu:ory interest due and payable t:u':Icon on ur before the expiration of said
thirty (30) day perine': or enter into a binding agreement with the County regarding installment payments,
the County may o:1ly thereafter deem any sllch ImpactF:cs rlue and owing the County for the Property
delinqt,;cnt under Section 74-50J, of the CollJcr Counry Code of Ordir:anc~s ilnd proceed ,vith its
coUection rights and remedies unner Section 74-501, of the COllier County Code of Orcimmccs.
Notwithstandijg anything COn tamed in this Agn.:t:mcnt to tr:e contrary, :t is expressly understQod nnd
agreed to by the parties hereto that Devclopt.."T does not r:creby waive or limit in any way any existing or
furure claims, rights, posilions .or defense" that Dc\"c]oper may h:lve to seck a reft.:.nd for o\'erp3y~nent of
im?ac[ fees R'dr5ld~Jl.1tQS~(;lj~m)4~~q2,or to legally chZlllt'nge~ (i) the alternative impact fee p:-ocess. (ii)
the fin3J determination made by the Bee on Deve;o~t:i>S alternative impact fee calculation, (iii) the
Irr:pact Fee l~81c:ll.1tion, and/or C\') .all)' f\ltllre ,~npact fee calcu1ation for the PlOpert)".
?J~::~~~/
[',10: N"~:J~d9...-',~...C. HIl.bb-
// 11
/ 1 :1
~--,.4 t,:
ML
Pritt! """,">SM't:l.M:
ATTEST:
DWIGHT E. BROCK, CLERK
. ;. '~', ~' ,
.~.".: ... ()...u4:>'~J.)~ p '[.
~~ ,------>-"'---..... -_._. ~---
: Octo. all'1ll'4ll'
. iltant:Jinll-:- ~...
::__ ,\pproYaTis7":o~im ~mJ :~~'31
,'sL;lff1ctcn:;y:' .
. ..
___~QR.. ~ ~"<:l ~
JennIfer A. Be edlO
.\~~-r;:i5".a.".! County ,A~ttC!m:::)'
DEVELOPER
Tamiaml Sqmrc ol'Naple" LLC,
a Florida limited llability company
By