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HomeMy WebLinkAboutAgreement to Establish Escrow AGREEMENT TO ESTABLISH ESCROW ACCOUNT THIS AGREEMENT entered into this day of March, 2003, between the CITY OF SEBASTIAN, a Florida municipal corporation, (hereinafter called "CITY"), and THP2 LIMITED PARTNERSHIP, a Florida Limited Partnership with an address at One Oakwood Boulevard, Suite 195 Hollywood, Florida 33020, and its successors or assigns, (hereinafter called "Owner") provides as follows: WHEREAS, the Owner desires to construct within the City a new low-income multi-housing apartment development consisting of one hundred and fifty (150) dwelling units to be known as Pelican Isles Apartments ("Development"); and WHEREAS, the Owner of the Development, in accordance with the City Code, would be subject to pay ONE HUNDRED AND FORTY-SDC THOUSAND TWO HUNDRED AND FIFTY ($146,250.00) in Recreation Impact Fees in respect of the Development ("Total Impact Fees"); and WHEREAS, to assist in the creation of new affordable housing within City, the City has by separate Agreement deferred the Owner's payment of the Total Impact Fees NOW THEREFORE, IN AND FOR CONSIDERATION of the mutual promises herein, the sufficiency of which is acknowledged by the parties, it is agreed that: 1. Prior to obtaining a building permit to undertake the Development, Owner shall remit ONE HUNDRED AND FORTY-SIX THOUSAND TWO HUNDRED AND FIFTY ($146,250.00) to an Escrow Agent to be designated by CITY for disbursement in accordance with the terms herewith. 2. Escrow Agent shall hold said funds in escrow for the benefit of CITY in an interest-bearing account or other investment vehicle as designated by CITY. 3. At the conclusion of a period of eleven (11) years, absent a written objection by Owner to the payment thereof, Escrow Agent shall pay the full amount held in escrow, including interest and earnings thereupon, to CITY. 4. It is expressly agreed that Escrow Agent shall make no disbursals from escrow over the objection of either of the remaining parties except pursuant to court order. In any dispute over entitlement to the funds, it is stipulated that that the funds shall remain in the escrow account described herein until said dispute is resolved mutually or by court order, and that any expenses incurred by Escrow Agent in performing the duties set forth herein or in resolution of any dispute over said funds shall be the sole responsibility of Owner. ,. 5. It is stipulated that this agreement is the result of negotiations and review by all the parties hereto and that in construing the terms hereof there shall be no presumptions based upon which party drafted the language thereof. 6. This Agreement embodies the whole agreement of the parties as to the matters set forth herein, and shall supersede all previous communications, representations or oral agreements between the parties. No amendment hereto shall be effective unless reduced to writing and signed by the parties hereto. This agreement is binding upon the successors, heirs or assigns of the parties. AGREED TO and executed by the parties on the date first set forth above. THP2 Limited Partnership, a Florida Limited Partnersl David'Schultz, Vice President of THP2 Corporation., General Partner of THP2 LIMITED PARTNERSHIP ~~/( - Sally A. Mho, CMC, City Clerk Approved as to Form and Legality for Reliance by the City of Sebastian only: L ~. Rich Stringer, City A ey THE UNDERSIGNED hereby accepts appointment as Escrow Agent and agrees to be bound by the terms set forth above. (~~~ {Seal} Attest: ~. O i iver~ ~kl HE CITY OF SEBASTIAN i erren .Moore, City Manager Escrow Agent: By: Attest: {Seal} LOCAL GOVERNMENT VERIFICATION OF CONTRIBUTION FEE DEFERRAL Failure to attach a sheet showing the payment stream for which the net present value of the deferral was calculated will result in the contribution not being considered. Name of Development: PELICAN ISLES Address of Development Site: LOUISIANA AVENUE & FOSTER ROAD, SEBASTIAN, FL 32958 Complete the following: On or before 3/27/03 the City/County of SEBASTIAN committed to defer (month/day/year) (Name of City or County) $ $146,250.00 in fees for the proposed Development referenced above. The fee deferral will bear interest at a rate of 0.00 % per annum over a period of 11 years. The fee deferral repayment period, amortization period, payment frequency and other applicable terms are: No principal or interest payments due to the City for the entire 11 year Term of the Fee Deferral. 100% of the Deferred Impact Fees are payable to the City at the end of the 11th year. No consideration or promise of consideration has been given with respect to the fee deferral. For purposes of the foregoing, the promise affordable housing does not constitute consideration. This fee deferral is provided specifically with respect to the proposed Development. The following government point of contact can verify the above stated contribution: Name of Government Contact: TERRENCE MOORE, CITY MANAGER Address: 1225 MAIN STREET, SEBASTIAN. FL 32958 Telephone Number: (7721 388-8203 CERTIFICATION I certify that the foregoing information is true and correct and that this commitment is effective through 31/0 n year) fif a~ Q~ TERRENCE MOORE Si ure ate Print or Type Name (772)388-8203 Telephone Number CITY MANAGER Print or Type Title This certification must be signed by the Mayor, City Manager, County Manager /Administrator/Coordinator, Chairperson of the City Counci]/Commission or Chairperson of the Board of County Commissioners. if the contribution is from a Land Authority organized pursuant to Chapter 380.0663, Florida Statutes, this certification must be signed by the Chair of the Land Authority. Other signatories are not acceptable. The Applicant will not receive credit for this contribution if the certification is improperly signed This contribution will not be considered if the certification contains corrections or `white-out'. if the certification is scanned, imaged, altered, or retyped, the Application will fail threshold and will be rejected automatically. The certification may be photocopied. UA1016 (Rev. 4-03) Exhibit _~ AGREEMENT FOR DEFERRAL OF IMPACT FEE9 THIS AGEEMENT, made and entered into by and between the City of Sebastian ("City"), a body politic having an address at 1225 Main Street, Sebastian, Florida 32958 and THP2 Limited Partnership, a Florida Limited Partnership with an address at One Oakwood Boulevard, Suite 195 Hollywood, Florida 33020 ("Owner"). WITNESSET$: WHEREAS, the City in Code Section 74-50 ("City Code") provides for the payment of a Recreational Impact Fee ("Impact Fee") equivalent to NINE HUNDRED AND SEVENTY-FIVE DOLLARS ($975.00) for each new residential dwelling unit constructed within the City limits; and WHEREAS, the Impact Fee is due and payable by an owner of a development upon the issuance of a building permit for any new residential unit constructed within the City; and WHEREAS, the Owner desires to construct within the City a new low-income multi-housing apartment development consisting of one hundred and fifty (150) dwelling units to be known as Pelican Isles Apartments ("Development") on a portion of the land described in Exhibit "A" attached hereto ("Property"); and WHEREAS, the Owner of the Development, in accordance with the City Code, would be subject to pay ONE HUNDRED AND FORTY-SIX THOUSAND TWO HUNDRED AND FIFTY ($146,250.00) in Recreation Impact Fees in respect of the Development ("Total Impact Fees"); and WHEREAS, the Owner desires to finance the Development, in part, with the equity raised through the sale by the Owner of an allocation of law income housing tax credits issued through the Florida Housing Finance Corporation on a competitive basis ("Tax Credits"); and WHEREAS, in order to assist the Owner in its application for Tax Credits, and to assist in the creation of new affordable residential housing within City, the City desires to establish "local government participation" for the creation of the new affordable housing units within the City by deferring the Owner's payment of the Total Impact Fees in accordance with the terms of the Agreement; and NOW THEREFORE, the Owner .and City, for and in consideration of the sum of Ten Dollars ($10.D0) and other matters herein recited, do hereby agree as follows: 1. Deferral. In order to establish local government participation for the creation of the new affordable housing units within the City, the City desires to defer the payment of the Total Impact Fees by the Owner for the Development for a period of ELEVEN (11) years ("Deferral Period"). The deferred Impact Fees, which are ordinarily due and payable at the time of the issuance of a building permit for a new residential unit within the City, shall, by the terms of this Agreement, be due and payable by the Owner in accordance with the payment schedule shown on the attached Exhibit "B". Payment of the deferred Impact Fees shall be made by the Owner of the Development on the 1't day following the last month of the 11~ year of the Deferral Period. 2. Interest Rate. The City agrees the interest rate imposed upon the Owner for the deferral of the Total Impact Fees shall be zero percent (06) per annum for the entire Deferral Period. 3. Establishment of Lien. Owner agrees that the amount of Total Impact Fees deferred under this Agreement shall be secured by a lien upon of the Property at the time of the City's issuance of a building permit for the Development. This Agreement shall constitute a covenant running with the land and said covenant shall be binding upon the heirs, survivors or assigns and shall touch and concern the Property and which lien shall contain the following language, "Notwithstanding anything contained herein to the contrary, the lien, as provided for in this Section 3, shall be deemed, for all purposes, inferior and subordinate to any mortgage lien now or hereafter given to any institutional lender, including but not limited to Fannie Mae or other similar government sponsored lending or financial institution. Such subordination shall be self executing without the requirement of execution or delivery of any additional consent or joiner on the part of the City. of Sebastian." 4. Default Remedies to the City. Ln the event the Deferred Impact Fees are not received by the City within thirty (30) days of the due date as established in accordance with the schedule affixed hereto as Exhibit "H", then Owner shall be deemed in default under this Agreement. Thereafter, Owner agrees that the City may exercise, at its sole discretion, any or all of the following remedies: 4.1 filing suit against Owner for the entire unpaid portion of the Deferred Impact Fees and all accrued and unpaid interest, if any, and all unpaid late penalties, if any; 4.2 foreclosing on the lien against the Property; 4.3 all other legal and equitable rights and remedies related to enforcing the collection of any and all amounts due and owing under this Agreement, giving the broadest passible intent to the protection of the City's interests; 4.4 It is agreed by Owner that the City shall then, at the time of default, be entitled to default interest which Owner agrees shall be the maximum interest rate allowed by Florida law and which shall apply from and including the first day of default (30 days after the payment of the Deferred Impact Fees were due in accordance with Exhibit "B"). Furthermore, Owner agrees that the City shall be entitled to recover all costs or expenses related to any collection effort, including, but not limited to, attorney's fees in an amount as may be reasonable, whether incurred with respect to collection, trial, appeal, enforcement of any judgment based on this Agreement or otherwise. 4.5 Forbearance or indulgence by the City with respect to any covenant or condition of this Agreement, in any regard whatsoever, shall not constitute a waiver of such covenant or condition to be performed by the undersigned owner to which same may apply and until complete performance by owner of such covenant or condition the City shall be entitled to invoke any remedy available to the City under this Agreement or by law or in equity despite such forbearance or indulgence. 5. Recording. prior to the issuance of a building permit for the Development, Owner shall be responsible for recording this Agreement in the Official Records of Indian River County and for payment of all recording fees. In addition to all other purposes, this Agreement is to be recorded in the Public Records of Lndian River County so as to provide notice to the public of the terms and obligations of Owner and Owner's heirs, successors or assigns and shall constitute an encumbrance against the Property as described above. A copy of the recorded Agreement shall be provided by Owner to City within fifteen (15) business days after recording. Regardless that this Agreement is recorded in the Public Records of Indian River County, or that building permits have not been issued for the Development, this Agreement is valid as of the date of its execution. 6. Assignment. owner agrees to submit any proposed .written assignment of this Agreement and present same to City for its consent and approval, via .its City Manager. The City hereby acknowledges that the City Manager has authority to consent to any such assignments unless it determines good cause exists for not consenting to said assignment. Owner hereby agrees to reimburse the City for all administrative costs related to any assignment, in an amount not to exceed $100.00.- Owner shall be responsible for recording and paying all recording fees and costs applicable to any such assignment. Notwithstanding the foregoing, the City acknowledges that the Owner may modify the limited partners of the Owner's ownership entity without the consent of the City. 7. Consideration. No consideration or promise of consideration has been given by the Owner or any other entity with respect to the City's deferral of the Total Impact Fees in accordance with the terms of this Agreement other than the Owner's agreement to lease the Development's units in accordance with those income restrictions described in Secticn 42 of the Internal Revenue Service Code.. This Agreement is executed by and through the parties' authorized representatives, as of the last date written below. CI OF SE TI WITH 3STH: i f ~~' BY : ~~_ BY . a ~.-~-~ TU IGNA N ~ a .{.{ ' i ~((~~dY~..1.,' ,NAME: ' ~/rr--eaLC'P~ (J~' ~aovPi ip5 ~ '~w+~~~J~~ TITLE: ``Fv C l ' VV~ td a.rt.. Gi^ B Y : ~ C .\AY"~1 S NATUR NAME: f~ EXECUTED by CITY on this _ day of MARCH 2003. STATE OF FLORIDA COUNTY OF INDIAN RIVER I HEREBY CERTIFY that on this day before me, an officer duly authorized to take acknowledgments, the foregoing AGREEMENT was _ executed by ~rC(~,~ VYtnorP , as of THE CITY OF SEBASTIAN who is person mown to me or who produced as identification and who acknowledged before me that he executed the foregoing instrument and who did take an oath. WITNESS my hand and official seal this N(arch a7~h, Zoo3 My commission expires: U NOTARYttPUBLIC, STOA~T:E OFyu,FLOR~I,,D/A r P~i~l~lnl name . ~GU. K e l p Y V (~ f I Q M,.$~ ~IG TURE NAME : e Ul P~e ~ ~ ( QM.S OF7NER: WITNE39ET8: BY: SIGNATURE NAME: BY: SIGNATURE NAME: STATE OF FLORIDA COUNTY OF T8P2 LIMITED PARTNERSHIP, Florida Limited Partnership By: a David Schultz, Vice President of THP2 Corporation., General Partner of THP2 LIMITED PARTNERSHIP EXECUTED by OWNER on this day of MARCH 2003. I HEREBY CERTIFY that on this day before me, an officer duly authorized to take acknowledgments; the foregoing AGREEMENT was executed by David Schultz, as Vice President of THP2 Corporation, the General Partner of THP2 Limited Partnership who is personally known to me or who produced as identification and who acknowledged before me that he executed the foregoing instrument and who did take an oath. WITNESS my hand and official seal this NOTARY PUBLIC, STATE OF FLORIDA. Print name: My commission expires: (seal)