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HomeMy WebLinkAboutPhelopateer, LLC Temporary Short Term Development Fee Deferral Agreement 2013 07 10111 N. Orange Ave., Suite 2000 P.O. Box 2873 Orlando, Florida 32802 -2873 Phone (407) 425 -9566 Fax(407)425 -9596 August 2, 2013 Andrea Lorenzo Luaces, City Clerk City of Winter Springs 1126 East S.R. 434 Winter Springs, FL 32708 Anthony A. Garganese Board Certified City, County & Local Government Law agarganese(?,orlandola mnet ' i" f" iQ Re: Phelopateer LLC Temporary Short Term Development Fee Deferral Agreement Dear Andrea: Enclosed is the following original recorded document -for your records: 1. Temporary Short Term Development Fee Deferral Agreement. AAG /nh Enclosure Si, l.�rely, Anthony A. Galbrncse Ft. Lauderdale (954) 670 -1979 • Kissimmee (321) 402 -014.1 o Cocoa (866) 425 -9566 Website: www.orlandolaw.net • Email: firm (q)orlandolaw.net THIS INSTRUMENT WAS PREPARED BY AND SHOULD BE RETURNED TO: Anthony Garganese City Attorney of Winter Springs Brown, Garganese, Weiss & D'Agresta, P.A. i ] 11 N. Orange Avenue, Suite 2000 Orlando, FL 32802 (407) 425 -9566 MARYANNE MORSE, CLERK Off: CIRCUIT COURT SEMINOLE COUNTY BK 06@85 Pgs 0345 - 3535; (9 1 pgs) RECORDED 07/22/2013 08a23:tl AC RECORDING FEES 8. RECORDED Y HDeVore FOR RECORDING DEPARTMENT USE ONLY TEMPORARY SHORT TERM DEVELOPMENT FEE DEFERRAL AGREEMENT THIS TEMPORARY SHORT TERM DEVELOPMENT FEE DEFERRAL AGREEMENT (the "Agreement ") is made and executed thisf3,day of July, 2013, by and between the CITY OF WINTER SPRINGS, a Florida Municipal Corporation (the "City "), whose address is 1126 East S.R. 434, Winter Springs, Florida 32708, and PHELOPATEER, LLC., a Florida Limited Liability Company ( "Developer "), whose address is 1348 Valley Pine Circle, Apopka, Florida 32712. WITNESSETH: WHEREAS, this Agreement is related to certain real property located in Seminole County, Florida and more particularly described on EXHIBIT "A ", which is hereby fully incorporated herein by this reference (the "Property"),- and WHEREAS, Developer is the current fee simple owner of the Property; and WHEREAS, Developer is seeking a building and other related permits from the City for the construction of a retail center on the Property (hereinafter "Building Permit "); and WHEREAS, Developer acknowledges and agrees that the City requires, by City Code and City policy, payment of various development fees including, but not limited to, building permit fees, impact fees, and related fees adopted by the City; and WHEREAS, Developer acknowledges and agrees that the City's development fees are due in full at the time the City issues a Building Permit; and WHEREAS, due to unanticipated costs associated with the development of the Property, Developer has requested a temporary short term deferral of the payment of some of the aforementioned City fees; and 'temporary Short Tenn Fee Deferral Agreement City of Winter Springs and Phelopateer, LLC. Pagel of 8 WHEREAS, the Developer's inability to pay the required City fees will delay the issuance of the Building Pen-nit for the development of the Property, and WHEREAS, Developer has similarly requested and obtained a road impact fee deferral agreement with Seminole County in order to facilitate the development of the Property; and WHEREAS, the City believes that there is a valid public purpose to facilitate and avoid further delay of the development of the Property by granting a temporary short term deferment of some of the City development fees, provided such deferment fully satisfies the tenns and conditions of this Agreement. NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties mutually agree as follows: 1.0 Recitals; Effective Date. The foregoing recitals are true and correct and are hereby incorporated herein by this reference. The Effective Date of this Agreement shall be the date that the last parry hereof executes the Agreement ("Effective Date "). 2.0 Authority. This Agreement is entered into pursuant to the Florida Municipal Home Rule Powers Act. 3.0 Amount of Development Fees. Developer acknowledges and agrees that the various development fees adopted by the City including, but not limited to, building permit fees, impact fees, and related fees are determined by City Code and City policy based on the actual development project being permitted by the City. Developer further acknowledges and agrees that the development fees stated in this Agreement are based on the development project currently proposed by the Developer and the development fees referenced herein have been calculated correctly by the City. As such, Developer agrees said fees are due and owing the City in order to obtain the Building Pen-nits. However, Developer also understands and agrees that should Developer modify the proposed development project, the development fees imposed by the City may have to be recalculated and could increase. Developer agrees to pay the City any increase in the development fees in accordance with the City Code and City Policy. 4.0 Development Fees Run with the Land. Developer acknowledges and agrees that the obligation to pay all development fees imposed by the City for purposes of obtaining a Building Permit including, but not limited to, the fees referenced in this Agreement run with the land and shall be considered, for all purposes, a binding obligation on the Property and all current and subsequent owners of the Property. 5.0 Immediate Payment of Certain Development Fees. Prior to the issuance of the Building Permits by the City, Developer shall pay the City a non - refundable amount of THIRTY ONE THOUSAND THREE HUNDRED SIXTY -SEVEN AND 90/100 DOLLARS ($31,367.90). The payment required by this Section shall be applied to the following development fee requirements, as follows: A. Police Impact Fees .... ..............................$ 8,153.15 Temporary Short Term Fee Deferral Agreement City of Winter Springs and Phelopateer, LLC. Page 2 of 8 B. Fire Impact Fees ............... .....................$21,869.43 C. Seminole County Fire New Construction ...... $ 574.30 D. State Surcharge ...... ............................... $ 771.02 TOTAL DUE IMMEDIATELY $31,367.90 6.0 Temborary Short Term Deferral of Other Certain Development Fees. For a temporary short term period of forty -five (45) days, commencing from the date that the City issues the Building Permits, the City agrees to defer final payment of the following development fees: A. Building Permit Fees ............. .....................$15,965.17 B. Electric Permit Fees ..... ..............................$ 150.00 C. Mechanical Permit Fees .............................. $ 1,045.00 D. Plumbing Permit Fees . ............................... $ 60.00 E. Professional ............ ............................... $ 6.00 F. T -Pole Fee .............. ............................... $ 55.00 TOTAL DEFERRED AND DUE IN 45 DAYS $17,281.17 The aforementioned fees set forth in this Section shall be due and payable to the City by the Developer prior to the expiration of the forty -five (45) day deferment period. 7.0 Temnorary Short Term Deferral of Citv Transportation, Sewer and Water Impact Fees. For a temporary short term period of time, which shall expire when either of the following events occurs first: (i) the end of the one hundred eightieth (180th) day from the date that the City issues the Building Permits; or (ii) the date that the City issues the first certificate of occupancy for Developer's proposed project on the Property, the City agrees to defer final payment of the following development fees: A. City Transportation Impact Fees ...................$45,297.61 B. City Water Impact Fees ..........................$ 2,937.99 C. City Sewer Impact Fees ........................... $13,947.01 TOTAL IMPACT FEES DEFERRED $621182.61 The aforementioned impact fees set forth in this Section shall be due and payable to the City by the Developer no later than the expiration date of the one hundred eighty (180) day Temporary Short Tenn Fee Deferral Agreement City of winter Springs and Phelopateer, LLC. Page 3 of 8 deferment period or the date that the City issues the first certificate of occupancy for Developer's proposed development project, whichever date occurs first. The parties also acknowledge that the total City transportation impact fee due for the proposed development project is actually $89,986.36, but Developer has received a credit of $44,688.75 for a land donation to the City for a right turn lane at the corner of Hayes Road and S.R. 434. Said land donation was related to the impacts of Developer's project. In addition, the Developer agrees that interior build outs for any restaurants in the development project will have to pay additional water and sewer impact fees (above the aforementioned base retail rate) based on the number of seats contained in the restaurant. The additional impact fees are due and payable to the City by Developer at the time the City issues the interior build out permit. 8.0 City Remedy if Developer Fails to Pay Development Fees. Should the Developer fail to pay any of the development fees required to be paid pursuant to this Agreement, Developer agrees that the City shall have the unconditional right, without penalty, to suspend or revoke any and all development permits issued by the City for the development of the Property or withhold any related new permits or certificates of occupancy. Suspension or revocation of the development permit shall be by written notice to the Developer or by posting the Property. If the City suspends or revokes said permits, the Developer (and its contractors) agrees to cease and desist any construction activity that is subject to the suspended or revoked permit immediately upon the written notice being received by Developer or posted upon the Property. The City and its officers, attorneys, boards, commission, and employees shall not be liable in anyway whatsoever to the Developer if the City suspends or revokes any development permit or withholds any related new permits or certificates of occupancy pursuant to the terms and conditions set forth in this Section and Agreement. As such, Developer hereby agrees to fully and completely release and hold harmless the City and its officers, attorneys, boards, commissions and employees and agents for any actions taken or omissions made by the City pursuant to this Section and Agreement. 9.0 Representations of the Parties. The City and Developer hereby each represent and warrant to the other that it has the power and authority to execute, deliver and perform the terms and provisions of this Agreement and has taken all necessary action to authorize the execution, delivery and performance of this Agreement. This Agreement will, when duly executed and delivered by the City and Developer and recorded in the Public Records of Seminole County, Florida, constitute a legal, valid and binding obligation enforceable against the parties hereto and the Property in accordance with the terms and conditions of this Agreement. Developer represents that it has voluntarily and willfully executed this Agreement for purposes of binding the Property to the terms and conditions set forth in this Agreement. 10.0 Successors and Assilzns. This Agreement shall automatically be binding upon and shall inure to the benefit of the City and Developer and their respective successors and assigns. The terms and conditions of this Agreement similarly shall be binding upon the Property and shall run with title to the same. 11.0 Applicable Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. The parties agree that venue shall be "I ernporary Short Tenn Fee Deferral Agreement City of Winter Springs and Phelopateer, LLC. Page 4 of 8 exclusively in Seminole County, Florida, for all state disputes or actions which arise out of or are based upon this Agreement, and in Orlando, Florida, for all federal disputes or actions which arise out of or are based upon this Agreement. 12.0 Amendments; Notices. This Agreement shall not be modified or amended except by written agreement duly executed by both parties hereto (or their successors or assigns) and approved by the City Manager or City Commission. Unless otherwise specifically provided in this Agreement, all written notices provided under this Agreement shall be by U.S. Mail to the addresses listed in the heading of this Agreement. 13.0 Entire Agreement; Exhibits. This Agreement and all attached exhibits hereto supersedes any other agreement, oral or written, regarding the Property and contains the entire agreement between the City and Developer as to the subject matter hereof The Exhibits attached hereto and referenced herein are hereby fully incorporated herein by this reference. 14.0 Severability. If any provision of this Agreement shall be held to be invalid or unenforceable to any extent by a court of competent jurisdiction, the Developer shall immediately cease and desist any construction activities in furtherance of the development permits issued by the City for the Property until such time as the Developer pays in full any and all of the development fees owed the City. 15.0 Effective Date. This Agreement shall become effective upon approval and execution of this Agreement by both parties hereto. 16.0 Recordation. This Agreement shall be recorded in the Public Records of Seminole County, Florida by the City. 17.0 Relationship of the Parties. The relationship of the parties to this Agreement is contractual and Developer is an independent contractor and not an agent of the City. Nothing herein shall be deemed to create a joint venture or principal -agent relationship between the parties, and neither party is authorized to, nor shall either party act toward third persons or the public in any manner, which would indicate any such relationship with the other. 18.0 Sovereign Immunity. Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, or other limitations imposed on the City's potential liability under state or federal law. As such, the City shall not be liable, under this Agreement for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any claim or judgment, or portion thereof, to any one person for more than two hundred thousand dollars ($200,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of three hundred thousand dollars ($300,000.00). Temporary Short Term Fee Deferral Agreement City of Winter Springs and Phelopateer, LLC. Page 5 of 8 19.0 City's Police Power. Developer agrees and acknowledges that the City hereby reserves all police powers granted to the City by law. In no way shall this Agreement be construed as the City bargaining away or surrendering its police powers. 20.0 Interpretation. The parties hereby agree and acknowledge that they have both participated equally in the drafting of this Agreement and no party shall be favored or disfavored regarding the interpretation to this Agreement in the event of a dispute between the parties. 21.0 Third -Party Rights. This Agreement is not a third -party beneficiary contract and shall not in any way whatsoever create any rights on behalf of any third party. 22.0 Specific Performance. Strict compliance shall be required with each and every provision of this Agreement. The parties agree that failure to perform the obligations provided by this Agreement shall result in irreparable damage and that specific performance of these obligations may be obtained by a suit in equity. 23.0 Attorney's Fees. In connection with any arbitration or litigation arising out of this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees and costs through all appeals to the extent permitted by law. 24.0 Development Permits. Nothing herein shall be construed as a development permit authorizing a specific development of any kind. This Agreement is for sole purpose of setting forth the payment terms of certain development fees imposed by the City in accordance with City Code and City policy. Nothing herein shall be construed to limit the City's authority to grant or deny any development permit applications or requests subsequent to the effective date of this Agreement. The failure of this Agreement to address any particular City, County, State and /or Federal pennit, condition, term or restriction shall not relieve Developer or the City of the necessity of complying with the law governing said permitting requirement, condition, term or restriction. Without imposing any limitation on the City's police powers, the City reserves the right to withhold, suspend, or terminate any and all certificates of occupancy for any building or unit if Developer is in breach of any 25.0 Termination. This Agreement shall terminate at such time the Developer has fully paid the City all development fees required by this Agreement and the proposed project on the Property has been issued a final certificate of occupancy by the City. In addition, the City shall have the right, but not obligation, to terminate the Agreement if Developer permanently abandons construction of the proposed project on the Property, provided, however, the City shall first deliver written notice of its intent to terminate the Agreement. If the City terminates this Agreement, the City shall record a notice of termination in the public records of Seminole County, Florida. 26.0 Waiver. Unless otherwise specifically provided by the terms of this Agreement, no delay or failure to exercise a right resulting from any breach of this Agreement shall impair such right or shall be construed to be a waiver thereof, but such right may be exercised from time to time and as often as may be deemed expedient. Any waiver shall be in writing and signed by the party granting such waiver. Temporary Short Tenn Fee Deferral Agreement City of winter Springs and Phelopateer, LLC. Page 6 of 8 27.0 Indemnification. Developer shall release, hold harmless and indemnify the City and its officers, attorneys, boards, commissions and employees and agents from and against any and all liability, loss, claims, demands, attorney's fees, suits, actions, damages, expenses, and causes of action of whatsoever kind, type, or nature which the City may sustain, suffer, or incur, or be required to pay in connection with the subject matter of this Agreement. IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the date first above written. ATTEST: f. By: Ao &"o_Ltra'es, City Clerk CITY SEAL CITY OF WINTER SPRINGS By: Kevi L. Smith, ity Manager APPROVED AS TO FORM AND LEGALITY For the use and reliance of the City of Winter Springs, Florida only. Date: By: / Anthony A. Garganese, City Attorney for the City of Winter Springs, Florida Temporary Short Tenn Fee Deferral Agreement City of Winter Springs and Phclopateer, LLC. Page 7 of 8 Signed, presence Printed Naiae of Witness Signature of Wi Printed Name,of Witness STATE OF �C �C)C'j � COUNTY OF Se � `s o 1 - PHELOPATEER, LLC., a Florida limited liability company By: - Kamil Gowni, Manager Date: , / � 1 The foregoing instrument was acknowledged before me this 10 day of July, 2013, Kamil Gowni, as Manager of PHELOPATEER, LLC, a Florida limited liability company, behalf of said company. He is personally knp_ wn to one or produced as identification. (NOTARY >.SF, — Az n ry Public Si&ngaturej (Print Name) Notary Public, State of�ca� dam° Connnission No.: 32 Sac-'k 4 2 4 My Commission Expires: Q - t 5 d C5 Temporary Shot Tenn Fee Deferral Agreement City of Winter Springs and Phelopateer, LLC. Page 9 of 8 on EXHIBIT "A" PARCEL 34 -20 -30 -5AW- 0000 -0300: Parts of Lots 30 and 51 plus vacated street between; Begin 25 feet North plus 50 feet West of the NE corner of Lot 51, run South 72 degrees 38'37" West 437.1 feet, then North 17 degrees 21'33" West 190.5 feet, then North 72 degrees 38'37" East 493.41 feet, then South 198.65 feet to the Point of Beginning (less road) ENTZMINGER FARMS ADDITION NUMBER 2, as recorded in Plat Book 5, page 9, of the Public Records of Seminole County, Florida. LESS AND EXCEPT: Begin at a point 25.00 feet North and 50.00 feet West of the Northeast corner of Lot 51, ENTZMINGER FARMS ADDITION NO. 2, according to the plat thereof as recorded in Plat Book 5, Page 9, Public Records of Seminole County, Florida; thence South 72 degrees 38'37" West for a distance of 8.34 feet; thence 00 degrees 53'23" West along a line 33.00 feet West of and parallel to the centerline of Hayes Road as described in O.R. Book 1042, page 220, Public Records of Seminole County, Florida, for a distance of 186.80 feet; thence South 54 degrees 07'23" East for a distance of 9.99 feet; thence South 00 degrees 53'23" East along the existing Westerly Right -of -Way line of said Hayes Road for a distance of 178.46 feet to the POINT OF BEGINNING. /" 101 PARCEL NO. 34 -20 -30 -5AW- 0000 -048E: BEG 458.76 FT S 72 DEG 38 MIN 37 SEC W & 70 FT S 17 DEG 21 MIN 23 SEC E OF INT SLY LI CELERY AVE & WLY LI HAYES RD RUN N 17 DEG 21 MIN 23 SEC W TO SLY R/W ST RD 434 N 72 DEG 38 MIN 37 SEC E 30 FT S 17 DEG 21 MIN 23 SEC E TO A PT N 72 DEG 38 MIN 37 SEC E OF BEG S 72 DEG 38 MIN 37 SEC W TO BEG ENTZMINGER FARMS ADD NO 2 PB 5 PG 9.