|
gg��� b , - ,eta
<br />BOOK C� 0 P,':GE - ij
<br />The developer was responsible for all payments. Furthermore, the applicable
<br />fee ordinances contained the qualifying references where "economically
<br />feasible". In my opinion, since the agreement was with the developer,
<br />Florida Atlantic had the right to relinquish the escrow funds to County. The
<br />1985 franchise agreement is also with the developer Realcor and, in my
<br />opinion, the developer, who is responsible for payment, has the right to
<br />commit to the impact fees necessary to serve his development. The intent of
<br />the 1985 agreement was to resolve the impact fee issue between the parties
<br />involved, i.e. Florida Atlantic, Realcor, and the County. That was
<br />accomplished in the' form of the 1985 agreement. Under the current impact
<br />fee ordinances, vesting and in the specific amount occurs per ERU at the time
<br />the current fees are paid. Agreements, if any, between the developers, past
<br />or present, and the tennants is strictly between those two parties.
<br />Independent of my analysis of the vesting question, I requested- a written
<br />legal opinion from the County Attorney. Attached is his legal opinion in
<br />which he concurs that there was no prior vesting (182 - 184) .
<br />As a result of my review of this aspect of the franchise, there are several
<br />matters that need to be resolved. For some undetermined reason, after
<br />adoption of the June 5, 1985 agreement, the County began accepting
<br />individual payment of the impact fees from tenants. Although there may be
<br />some practical reasons, as well as convenience, since the developer is
<br />.responsible for the payments, I believe all future impact fee payments under
<br />this particular franchise should be from the developer.
<br />The agreement
<br />also provides
<br />that all impact fees paid shall be
<br />paid in the
<br />"Village Green,
<br />Phase IV (West)
<br />Escrow Accounts" until the park
<br />connects to
<br />the wastewater
<br />system. At
<br />that time the escrowed funds and
<br />any future
<br />impact fee, will
<br />be deposited
<br />in the "Impact Fee Trust Fund". Since June 5,
<br />1985 the fees
<br />collected have
<br />been deposited in the -impact fee
<br />trust fund.
<br />Those funds collected to date
<br />should be transferred to the escrow account as
<br />provided for in
<br />the franchise-
<br />agreement.
<br />As provided in the 1985 agreement, the escrow funds from the prior franchise
<br />were relinquished to the County to be used by the County for any legal
<br />purpose. In 1986, the escrowed funds were transferred to the impact fee
<br />trust fund. To date there has been no formal decision as to the use of those
<br />funds. Although there is no legal requirement, the funds, in my opinion,
<br />could be and perhaps should be applied in some form to the Phase IV utilities
<br />since they were generated from Phase IV. Recognizing that the funds were
<br />paid by the original developer and the current franchise is with the
<br />developer, Realcor, any such decision would benefit the developer. In my
<br />opinion this matter warrants further discussion with the Commission and at
<br />this point I have not developed a specific recommendation.
<br />1985 Franchise Agreement - Initial Impact Fee Payments
<br />The June 5, 1985 agreement states that the developer acknowledged that there
<br />were approximately 100 vacant pads as of the date of the agreement. It also
<br />provides that the developer would pay impact fees for each vacant pad as
<br />occupied and that in any event the developer would pay for 100 ERU's within
<br />18 months of the date of agreement whether or not such pads were occupied
<br />(96). ' By letter dated July 18, 1985 to Terry Pinto, Realcor's attorney
<br />advised that there were 80 unsold units in Phase IV and requested
<br />confirmation of a prior conversation that the 100 ERU payments could come
<br />from either Countryside IV or V rather than amending the agreement (107,
<br />108). After confering with the County Attorney, Terry Pinto by letter dated
<br />August 19, 1985 indicated that 100 units may come from either Countryside
<br />(109). As reflected in the attached memo (145 - 181) Terry Pinto advised
<br />that the decision was based on his interpretation of the agreement and the
<br />inter -relationship of the two Countrysides to the County utility system. By
<br />December 5, 1986, a total of $47,500 from Phase IV was paid, amounting to a
<br />total of 38 ERU's as follows: 35 pads, -clubhouse (2 ERU's),• and office (1
<br />ERU) (185) Based on Terry Pinto's interpretation the balance was satisfied
<br />by Realcors June 20, 1985 reservation of 285 ERU's resulting from the Route
<br />60 assessment program.
<br />12
<br />IN -
<br />
|