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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