Agenda 10/28/2008 Item #10A
Agenda Item NO.1 OA
October 28,2008
Page 1 of 12
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EXECUTIVE SUMMARY
Recommendation that the Board of County Commissioners consider options pertaining to
remedies for past due and expiring impact fee deferrals and provide direction to the
County Manager, or his designee, related to the impact fee deferral for Brittany Bay
Phase I and policy direction to be applied to similar impact fee deferrals with future
expirations
OBJECTIVE: That the Board of County Commissioners (Board) consider options pertaining
to remedies for past due and expiring impact fee deferrals ~md provide direction to the County
Manager, or his designee, related to the impact fee deferral for Brittany Bay Phase I and policy
direction to be applied to similar impact fee deferrals with future expirations.
CONSIDERATIONS: On August 3,2001, the Board of County Commissioners entered into
an Agreement with Brittany Bay Partners, Ltd. for the deferral of impact fees in the amount of
$1,058,256.08 for 184 affordable rental units at Brittany Bay Apartments Phase I (Brittany
Bay). In accordance with the deferral agreement, the term of the deferral was for a period of
six (6) years from the date of deferred impact fees for the project. The first building permit for
the subject development, for which impact fees would be due and payable but for the deferral
agreement, was issued on September 5, 2001. Therefore the term of the deferral expired on
September 5, 2007 and was not subsequently extended. In addition, concurrent with the
execution of the deferral agreement, a lien was placed on the subject property in the amount of
_ the deferred impact fees as security for Collier County's interest and is still in place on the
property record.
On June 17, 2008, staff from the Housing and Human Services Department sent
correspondence notifying the representatives of Brittany Bay of the past due status of the
impact fee deferral. A response was received by staff on July 24, 2008 from Mr. W. Scott
Culp, Executive President of Atlantic Housing Partners, on behalf of Brittany Bay, requesting
an extension of the deferred impact fees to 15 years (September 5, 2016). Extensions of
impact fee deferrals are not granted administratively. Any extension or change to a deferral
agreement requires the approval of the Board; therefore, on September 23, 2008; Mr. Culp
presented a public petition to the Board (Item 6C) requesting the extension to the Brittany Bay
impact fee deferral agreement. Following the presentation of the public petition the Board
directed that options for resolving the issue of expiring/past due impact fee deferrals be
developed for the Board's consideration.
The information below pertains to the affordable housing rental impact fee deferrals that have
expired without payment or will expire by the end of Calendar Year 2009, the dollar amount,
and the status/actions taken by staff.
,'~
Agenda Item l\lo, 1 CiA
October 28, 2008
Page 2 of 12
Project Name Deferral Expiration Dollar Amount Status/Action Taken
SaddlebrooklPelican October 9,2004 $666, 752.80 No response received
Pointe from project
representatives;
Forwarded to County
Attorney for legal
action in accordance
with Board direction
Brittany Bay Ph. I September 5, 2007 $1,048,518.88 Public Petition
requesting extension
to 15 years (9-23-08)
First Assembly of December 17, 2008 $82,899.34 Staff has been
God! Campus of Care working with project
represen tati v es
regarding deferral
repayment; amount
may change due to
sale of portion of
property, removal of
structures, etc.
Utilities impact fees
have been paid in full
for existing
development
Brittany Bay Ph. II February 3, 2009 $1,210,626.56 Letter sent to project
Camden Cove representatives with
notification of
payment due on or
before February 3,
2009
Saw grass Pines Ph. I April 22, 2009 $1,096,127.20 Letter sent to project
Summerlake representatives with
Apartments notification of
payment due on or
before April 22, 2009
Saddlebrook Village September 20, 2009 $2,170,855.04 Letter sent to project
Ph II representatives with
notification of
payment due on or
before September 20,
2009
TOTAL $6,275,779.82
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Agenda Item r\lo. 10A
October 28, 2008
Page 3 of 12
In addition to the information above, an extension of a portion of the impact fee deferral for St.
Matthew's House Wolfe Apartments was granted by the Board. A payment on the amount of
$105,000 was remitted by Wolfe Apartments with the remaining balance of the deferral,
$73,149.72 then becoming due and payable in four years. This extended the term of the
agreement to 10 years. The representatives from Wolfe Apartments petitioned the Board on
two separate occasions, prior to the expiration of the deferral agreement, to facilitate this
extension.
An extension was also approved for Oakhaven Apartments in Immokalee. On September 27,
2005 the Board approved an extension of an additional 15 years for the full amount of
$189,224.31.
The following are options for the Board's consideration with respect to the request for
extension for Brittany Bay Phase 1. The Board may also desire to consider theses options in
order to develop a policy to address future issues.
Option 1: Require payment in full in accordance with the Agreement. No extensions
will be authorized and the County Attorney should be directed to pursue collection.
Brittany Bay Phase I would be required to remit payment immediately.
Option 2: Provide for an extension to a maximum tenn of 10 years consistent with the
current program. This equates to a 3 year extension for Brittany Bay Phase I as the
deferral due date was September 5,2007.
Option 3: Provide for an extension to a maximum term of 10 years for all fees except for
Water and Sewer which would be due and payable immediately. This term is consistent
with the current program which also does not allow for the deferral of Water and Sewer
Impact Fees.
Option 4: Require the payment of 60% of the deferred amount, to be disbursed pro rata
to the affected impact fee trust funds. Provide an extension of the remaining deferral
balance to 10 years, consistent with the current program.
Option 5: Consult with petitioner regarding amount of money available to pay down
deferraL If acceptable to the Board, accept that as partial payment, and execute and
amendment to the deferral agreement with the remaining balance and an extension to a
maximum term of 10 years to pay the remaining balance. This is similar to the
arrangement with the Wolfe Apartments.
Option 6: Extend the deferral agreement to a maximum term of 15 years consistent with
the requirement for the project to remain affordable. This is similar to the alTangement
with Oak Haven Apartments; howevcr that deferral agreement was extended for an
additional 15 years.
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If the Board considers one of the Options 2 through Option 6 the f()llowing should also be
considered:
Agenda Item NO.1 0/\
October 28, 2008
Page 4 of 12
. Current Program Capacity: 225 units of Rental/CWHIP units are available
annually for deferral. If the Board considers extending the deferral period for
existing rental units, an adjustment to the amount of new units that are available
for deferral may be appropriate. However, it should also be noted that the
Board has previously made a verbal commitment to the Fountain Lakes Project
for impact fee deferrals based on the CWHIP award by the State of Florida.
. Additional Security: The impact fee deferrals are secured by a lien on the
property in the amount of the impact fees deferred, however additional security
is required if the County's interest is subordinate to the first mortgage, etc.
Several of the impact fee deferral agreements (above) include language that
states that the County's interest is junior to the first mOligage on the project
based on security collateral being provided, however, staff has no record of such
security instruments. Therefore, if extensions are granted consideration of a
requirement for additional security collateral may be appropriate. Each new
rental affordable housing deferral agreement that is executed by the Board has a
corresponding tri-party agreement executed between the County, the project
representatives and a lender on behalf of the project. Staff, in cooperation with
the staff from the Clerk of Court's Finance Department has developed a process
to accurately account for and track the deferral agreements and associated tri-
party agreements.
. Policy for Extension: Staff has now notified each of the entities with defelTaI
agreements that will reach the tenn of their agreement by December 31, 2009,
in order to provide the entities an adequate amount of time to arrange for
payment. Staff recommends that a follow-up letter be transmitted 60 days prior
to the expiration of the agreement ternl requesting the status of the entities
ability to remit timely payment. If the entity reports that it is unable to remit
payment staff would then prepare an executive summary for the Board's
consideration detailing the issues and impacts of any extension options the
Board may have elected as policy. In the event that an entity does not respond
to the request for infonnation, staff should prepare an executive swnmary for
the Board detailing the project specifics and seeking direction to forward the
issue to the County Attorney should the tenn of the agreement expire and
payment not be remitted.
. Interest: The current affordable housing rental impact fee deferrals are interest
free for the telm of the agreement. If the Board elects to extend the term of the
deferrals consideration should be given to adding an interest component for the
extension. The current County-wide impact fee deferral program includes an
interest component of 5% per year for the first 5 years to a maximum of 25% of
the deferred amount. A similar interest component could be structured for
defelTal extensions at the direction of the Board.
Therefore, based on the infonnation detailed above, staff has fonnulated the following
recommendation for the Board's consideration:
.A,oenda Item r\lo. 10A
~ October 28, 2008
Page 5 of 12
Require the payment of 60% of the deferred amount, to be disbursed pro rata to the
affected impact fee trust fimds. Provide an extension of the remaining deferral
balance to J () years, consistent 'with the current program (Option 4). Related to
interest, for those deferral agreements executed between Collier County and a for-
pn~fit entity, an interest component (~r 5% per year VI'ill be included for the term of
the extension. For those deferrals executed between Collier County and a not-for-
profit entity, interest will not apply. Additionally, staff recommends that the Board
direct that the "Policy for Extension" (detailed above) be implemented in order to
provide for consistent and time~v management of the program.
During the discussion of the Brittany Bay I public petition, the Board requested that
information be included in this executive summary regarding the zoning, affordable housing
requirements, etc. for the subject project. The Brittany Bay project is a 58.6::!::: acre property
known as the Brittany Bay Apartments PUD which was approved November 28, 2000. The
Developer received a density bonus of 1.16 density bonus units per acre for a total of 67 units
for the project. The maximum number of units authorized is 478 on the property which is a
density of 8.16 dwelling units per acre. The deferrals for Brittany Bay Phase I and Brittany
Bay Phase II represent 392 units of affordable rental dwelling units.
FISCAL IMPACT: Upon reaching the term of the deferral agreement the deferred impact
fees become immediately due and owing to Collier County. Upon payment, such funds then
become available to provide funding for growth-related capital improvements. The fiscal
impact of the executed deferral agreements to the County is the loss of the income to the
impact fee trust funds for the term of the agreement; however, the agreements were consistent
with the policies and regulations in place at that time of their execution(s). The failure to
receive payment after the expiration of the specified term jeopardizes the County's ability to
provide capital improvements, necessitated by growth, in a timely manner.
If the Board elects to provide extensions to the deferral agreements for affordable housing
projects that have reached the term of their original agreements, the fiscal impact on the
respective impact fees trust funds may be lessened by requiring an interest component for the
term of the extension, limiting the amount of new rental units available for deferral in CUlTent
and future fiscal years and/or accepting a pm1ial payment toward the deferred amount and
providing an extension for the remaining balance. Each of these options is discussed in more
detail in the "Considerations" section above. Any unfunded defen'al of impact fees places the
burden of providing growth-necessitated capital improvements on the remaining impact fee
payers. The impact fee deferral programs have been developed at the past direction of the
Board (and Board of the past) with specific criteria and limitations. Long term extensions of
existing impact fee deferrals agreements were not contemplated under past or existing
programs.
The following is a breakdown of the balance of the affordable housing rental impact fee
deferrals:
_.
Agenda Item r\lo. 10A
October 28. 2008
Page 6 of 12
Description of Deferral Date of Term Expiration Total Amount
Secured with a Tri-Party FY 2013 and after $2,612,141.45
Agreement
Deferrals without additional By December 31, 2009 $6,275,779.82
security co llateral
Deferrals without additional After December 31,2009 $3,001,985.96
security collateral through FY 2020
$11,889,907.23
If the Board elects to implement the staff recommendation (detailed above) a potential
$3,765,467.89 may be collected by December 31, 2009, provided that each of the entities
requested and extension of their deferral and were able to provide the required 60% payment.
The following chart provides the amount of affordable housing rental impact fee deferrals for
each of the respective impact fce trust funds:
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Impact Fee Amount
Road $4,513,729.35
Sewer 1,802,844.00
Water 1,569,660.00
School 1,516,276.36
Community Parks 913,824.21
Regional Parks 799,818.71
Library 351,199.97
Jail 165,079.71
EMS 135,999.85
Government Buildings 105,000.51
Law Enforcemcnt 16,474.56
Total $11,889,907.23
Agenda Item r\lo. 10A
October 28. 2008
Page 7 of 12
The impact fee deferral for Brittany Bay I became due and payable upon the completion of the
term on September 5, 2007. In the event that the Board does not elect to extend the deferral
agreement, Chapter 74 of the Collier County Code of Laws and Ordinances (Code) provides
specific guidelines for the collection of impact fees in default. The default provisions include
requirements for a delinquency fee equal to 10% of the total impact fees to be assessed and as
of the date of delinquency interest accrues at the than applicable statutory rate for final
judgments calculated on a calendar day basis. Based on the due date of September 5, 2007,
Brittany Bay Phase I may be subject to a delinquency fee of $1 04,851.88 and statutory interest
in the mTIount of $140,788.51 (through October 15, 2008) and continuing to accrue at $347.63
per day.
GROWTH MANAGEMENT IMPACT: Objective 1.2 of the Capital Improvement Element
(CIE) of the Collier County Growth Management Plan (GMP) states: "Future development will
bear a proportionate cost ~r{acility improvements necessitated by growth."
Additionally, Policy 1.4 of the Housing Element of the Collier County Growth Management
Plan states: "Collier County shall seek to distribute affordable-worliforce housing equitably
throughout the county where adequate infi'astructure and services are available. Programs and
strategies to encourage af{ordable-workfhrce housing development may include, but are not
limited to, density by right within the lmmok:alee Urban area and other density bonus
provisions, impact fee deferrals, expedited permitting ({a,',t tracking), public-private
partnel~\'hips, providing technical assistance and intergovernmental coordination. "
Impact Fees generate funds to be expended for capital improvements to public facilities
necessitated by growth. The deferral of impact fees for the subject property for the initial 6
year term (or other specified ternl) was consistent with the Growth Management Plan m1d the
impact fee regulations in place at the time of execution of the Agreement. However, failures to
remit the impact fees that are now due and owing has a direct impact on each of the impact fee
trust funds that originally provided a deferral of impact fees.
LEGAL CONSIDERATIONS: The County Attorney will work with staff to implement
Board direction on this matter. -1t\K
RECOMMENDA TION: That the Board of County Commissioners consider the
recommendation by staff to implement Option 4, as detailed above, that: 1) requires the
payment of 60% of the deferred amount to be disbursed pro rata to the affected impact fee
trust funds; 2) provides an extension of the remaining deferral balance to 10 years, consistent
with the current program. Additionally providing that for those deferral agreements executed
between Collier County and a for-profit entity, an interest component of 5% per year will be
included for the term of the extension, and those defelTals executed between Collier County
and a not-for-profit entity, interest will not apply; also implementing the "Policy for Extension"
(detailed above) in order to provide for consistent and timely management of the program; this
recommendation being applicable to Brittany Bay I and similar impact fee deferrals with future
expirations.
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PREPARED BY: Amy Patterson, Impact Fee and Economic Development Manager
Business Management and Budget Office, CDES
Agenda Item r-Jo. 10A
October 28, 2008
Page8of12
COLLIER COUNTY IMPACT FEE DEFERRAL PROGRAMS
County-wide Impact Fee Deferral Program (owner occupied):
. Program adopted 7/26/2005
. Term of Agreement - Until sale, transfer of title or refinance
. Other trigger(s) for repayment: loss of homestead; breach of executed agreement
. Interest: 5% per year; not to exceed 25% of deferral amount
. Security: lien on property for amount of impact fees deferred
. Managing Department: Housing and Human Services/Public Services
. Support functions: Impact Fee Administration/CDES
The current County-wide Impact Fee Deferral Program provides long-term impact fee
deferrals for owner-occupied dwelling units. In 2005 this Program replaced the SHIP-
funded deferral program. The Program is currently limited to first-time homebuyers that
are legal residents or citizens of the United States. The qualifying income level is up to
80% of the area median income, adjusted for household size. The Program funding is
restricted to 3% of the prior year total annual collection of impact fees plus specified
funds per year for 5 years allocated by the General Fund for Water and Sewer Impact
Fees. Repayment requirements are triggered by the sale, transfer of title or refinancing of
the unit, loss of homestead or other default of the tenns of the deferral agreement. Each
impact fee deferral is executed by the Board of County Commissioners (BCC) and a lien
is placed on the property.
Immokalee Residential Impact Fee Deferral Program (owner occupied):
. Program adopted 11/18/2003
. Sunset Date: 11/18/2006
. Number of Active Agreements: 109
. Term of Agreement - Until sale, transfer or refinance
. Other trigger(s) for repayment: loss of homestead; breach of executed agreement
. Funding source for Program: $1.5 million in General Fund and 95% of TIF
related to the subject property from the Immokalee CRA (10 years)
. Security: lien on property for amount of impact fees deferred
. Managing Department: Impact Fee Administration/CDES
The Immokalee Residential Impact Fee Deferral Program provided long-term impact fee
deferrals for owner-occupied dwelling units within the Immokalee CRA. In 2003 this
Program was adopted by the BCC for a three-year period. The qualifying household
income level was up to $100,000. Repayment requirements are triggered by the sale,
transfer of title or refinancing of the unit, loss of homestead or other default of the terms
of the deferral agreement. Staff will monitor all active agreements under the terms of
this Program until their liens are satisfied.
.Agenda Item NO.1 OA
October 28, 2008
Page 9 of 12
Multi-family Impact Fee Deferral Program (rentals):
· Program originally adopted 12/16/1992
· Term of Agreement - 10 years (previously 6 years or 6 years 9 months)
· Other trigger(s) for repayment: breach of executed agreement
· Interest: none related to the repayment of the deferral agreement
· Security: lien on property for amount of impact fees deferred; additional collateral
required in some cases.
· Limitations: deferral not available for Fire, Water or Sewer Impact Fees
· Managing Department: Housing and Human Services/Public Services
· Support functions: Impact Fee Administration/CDES
The Multi-family Impact Fee Deferral Program provides a deferral of impact fees for a
period of 10 years for qualified affordable rental projects. This program is limited to very
low or low income households. The unit must be the household's permanent residence
and the head of household must be a legal resident or citizen of the United States. Rental
limits may not exceed the rental limits established by Florida Housing Finance
Corporation. Program is limited to 225 units per year, including CWHIP units (discussed
below).The deferral is secured by a lien on the property as well as additional collateral,
generally in the form of a tri-party agreement, if the County's interest is subordinate to
another party. Each impact fee deferral is executed by the Board of County
Commissioners.
CWHIP Impact Fee Deferral ProQram:
· Program adopted 12/11/07
· T em1 of Agreement - 10 years
· Other trigger(s) for repayment: loss of homestead for owner-occupied units;
breach of executed agreement
· Limitations: deferral not available for Fire, Water or Sewer Impact Fees
· Security: lien on property for amount of impact fees deferred
· Managing Department: Housing and Human Services/Public Services
· Support functions: Impact Fee AdministrationlCDES
In order to participate in the defelTal program the development must: I) meet all
requirements of Section 420,5095 of the Florida Statues (The "Community Workforce
Housing Innovation Pilot Program"); 2) must be designated by the Board of County
Commissioners as a CWHIP project for Collier County; and 3) must be awarded CWHIP
funds by the State of Florida. The units must be the homestead and the owner(s) must be
legal residents or citizens of the United States; for CWHIP rentals, the unit must be the
household's permanent residence and the head of household must be a legal resident or
citizen of the United States. Program is limited to 225 units per year, including multi-
family rental units (discussed above). The deferral is secured by a lien on the prope11y.
Each impact fee deferral is executed by the Board of County Commissioners.
Agenda Item NO.1 OA
October 28, 2008
Page 10 of 12
Charitable Organization Impact Fee Deferral Program:
. Program adopted 10/9/01
. Term of Agreement - 10 years (previously a waiver or an open-ended deferral)
. Other trigger(s) for repayment: change in charitable status; sale of property; other
breach of executed agreement
. Funding limitations: Program is limited to $200,000 per fiscal year; $100,000
maximum per qualifying applicant
. Security: lien on property for amount of impact fees deferred
. Managing Department: Impact Fee Administration/CDES
The Charitable Organization Impact Fee Deferral Program was adopted by the BCC in
2001, originally as a waiver program for qualifying entities. In 2007 the Program
changed from a waiver program to a long-term deferral program. In April of 2008 the
BCC adopted changes that further defined the program. The deferral program is
available to charitable organizations that provide services of substantial benefit to very
low and low income residents of Collier County at no charge or at reasonable, reduced
rates. Deferrals are available only to entities that solely provide services to citizens of the
United States or legal aliens that permanently reside in the United States. Impact fee
deferrals are not be granted for Fire, School, Water or Sewer Impact Fees. A straight
deferral is provided to the qualifying entity for a 1 O-year period with the total impact fees
due at the conclusion of the term, without interest. As security, a lien is placed on the
subject property, in the amount of the impact fees due. Approval of the deferral
agreements are at the discretion of the BCC on a case-by-case basis.
Item Number:
Item Summary:
Meeting Date:
Page] of2
Agenda Item r~o. 10A
October 28. 2008
Page 11 of 12
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
10A
Recommendation that the Board of County Commissioners consider options pertalfling to
remedies for past due and expiring Impact fee deferrals and provide direction to the County
Manager or nis designee related to the impact fee deferral for Brittany Bay Phase I and
policy direction to be applied to Similar IInpaGt fee deferrals with future expirations (Amy
Patterson impact Fee/EDC Manager, Business Management & Budget Dept COES)
10/28/200890000 AhA
Prepared By
Amy Patterson
Community Development &
Environmental Services
Impact Fee Manager
Date
Financial t.dmin. & Housing
10/7/200810:42:24 AM
Approved By
Jeff Kiatzkow
County Attorney
Assistant County Attorney
Date
County Attorney Office
10/8/2008 8:35 AM
Approved By
Thomas Wides
Publ!:: Utilities
Operations Director
Date
Public Utilities Operations
10i9/2008 9:33 AM
Approved By
Garrett Muilee
Community Development &
Environmentat Services
Financial Operations ilt~anager
Date
Financial Admin, & Housing
10/9/200810:39 AM
Approved By
Judy Puig
Communi!}' Dev0~opment &
=nvironrrlenta~ Services
Operations Analyst
Date
Cornrnunity Devctoprnent &
Envjr()nrnen~af Services ;!,\dmin.
10110/200(: 9:11 AM
Approved By
Joseph K, S~hmitt
Community Development &
Environmental Services
Cornolunit}( ~eveloprnen: &
Environrnenta: Servi:es t\dmins::'ator
Dtite
ConHTlU;1;ty DsvE'~oprnpnt &
Env!rOnmen:3; S~:::n!j;:es A':1m::-1,
10/11/2J03 7:21 Pf\!l
Approved By
Mzr~y i<rumbi:':e
Duh::c Se:--1/::':25
8ire:tor
D",le
Ho~~s;ng &, HlHTi2n S,e~v1':0S
10/13:2008 ~ 2:4S pr\~
Approved By
~:2mes VV. D~:"'a:-v.'
?ubHc Utiiit!?s
P...:::;::C Ut:nt~:;:: }~',d~:n~s~:-c:tc:r
C:z:tG
Pub~:c: UtUiUF:S l~CJrrlinjst":'Cition
;0/14,'2008 2:2~! P\\~
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Page 2of2
Agenda Item NO.1 OA
October 28, 2008
Page12of12
Approved By
OMS Coordinator
Applications Analyst
Date
Administrative Services
Information Technology
10/16/20088:32 AM
Approved By
Susan Usher
Senior Management/Budget Analyst
Date
County Manager's Office
Office of Management & Budget
10/17/20089:48 AM
Approved By
James V. Mudd
County Manager
Date
Board of County
Commissioners
County Manager's Office
10/21/20081:59 PM
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