2008-05 Domani Development Funding Agreement RDINANCE 2008-OS
• AN ORDINANCE OF THE VILLAGE COUNCIL OF THE VILLAGE OF
NORTH PALM BEACH, FLORIDA, APPROVING A FUNDING
AGREEMENT WITH DOMANI DEVELOPMENT LLC TO ADOPT A
REVISED SCHEDULE FOR THE PAYMENT OF A MONETARY
CONTRIBUTION IN LIEU OF THE DEDICATION OF LAND FOR PUBLIC
USES WITHIN THE DOMANI PLANNED UNIT DEVELOPMENT AND
AMENDING ORDINANCE NO. 14-2005, AS AMENDED, TO INCORPORATE
SAME; PROVIDING FOR SEVERABILITY; PROVIDING FOR CONFLICTS;
AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the Village Council for the Village of North Palm Beach created the Domani Planned
Unit Development ("Domani PUD") through the adoption of Ordinance No. 14-2005; and
WHEREAS, in lieu of the Petitioner, Domani Development LLC, dedicating five percent or
more of the land area comprising the PUD for public use pursuant to Section 36-23 of the
Village Code of Ordinances, Ordinance No. 14-2005 required the Petitioner to pay to the Village
a cash contribution of $1,175,000 payable in three installments tied to certain construction
milestones; and
WHEREAS, through the adoption of Ordinance No. 25-2006, the Village Council amended the
• Domani PUD to allow the Village Council to adopt, by resolution, specific timeframes regazding
the commencement of construction activities that were omitted from Ordinance No. 14-2005; and
WHEREAS, due to a change in mazket conditions and the potential for amendments to the
adopted plans and specifications for the Domani PUD, the Petitioner has requested that the cash
contribution required by Section 36-23 of the Village Code and Section 4 of Ordinance No.
14-2005 be tied to dates certain in lieu of construction milestones as set forth in a separate
Funding Agreement; and
WHEREAS, the Village Council determines that the amendment of the Domani PUD to incorporate
the revised payment schedule and to authorize execution of the Funding Agreement between the
Petitioner and the Village is in the best interests of the public health, safety and welfare.
NOW, THEREFORE, BE IT ORDAINED BY THE VILLAGE COUNCIL OF THE VILLAGE
OF NORTH PALM BEACH, FLORIDA as follows:
Section 1. The foregoing recitals are ratified as true and correct and aze inwrporated herein.
Section 2. The Village Council hereby approves the Funding Agreement between the
Petitioner and the Village attached hereto and incorporated herein by reference and authorizes
the Mayor and Village Clerk to execute the Agreement on behalf of the Village.
• Section 3. The Village Council hereby amends Ordinance No. 14-2005 by amending Section
4 to read as follows (additional language underlined and deleted language strieleetr-tl~eagh):
ection 4. In lieu of the Petitioner dedicating five (5%) percent or more of the
azea of the land comprising the Planned Unit Development for public use pursuant
• to section 36-23 of the Village Subdivision Regulations, the Petitioner shall pay to
the Village a cash contribution of $1,175,000.00, '•°~•-«° ~°° ~° ~°~' /~c°~. ,.r
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ess~eney to be paid in accordance with the schedule set forth in the Funding
Agreement executed by the Petitioner and the Villa e, a copv of which is attached
hereto as Exhibit "A" and incorporated herein by this reference.
Section 4. If any section, pazagraph, sentence, clause, phrase or word of this Ordinance is for
any reason held by a court of competent jurisdiction to be unconstitutional, inoperative or void,
such holding shall not affect the remainder ofthis Ordinance.
Section 5. All Ordinances or parts of Ordinances and Resolutions or parts of Resolutions in
conflict herewith aze hereby repealed to the extent of such conflict. All provisions of Ordinance
No. 14-2005 and Ordinance No. 25-2006, unless expressly modified herein, shall remain in full
force and effect.
Section 6. This Ordinance shall take effect immediately upon adoption.
PLACED ON FIRST READING THIS 24th DAY OF JANUARY 2008.
PLACED ON SECOND, FINAL READING AND PASSED
(Village Seal)
ATTEST: ,,~~'
~~~~a. /~~~~
VILLAGE CLERK
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
• VILLAGE ATTORNEY
14th DAY OF FEBRUARY, 2008.
r
Funding Agreement
THIS FUNDING AGREEMENT ("Agreement") is entered into this ~~day of ~~, 2008
("Effective Date"), by and between DOMANI DEVELOPMENT, LLC ("DEVELOPMENT"), a Florida
limited liability company, and the VILLAGE OF NORTH PALM BEACH, FLORIDA ("VILLAGE"), a
Florida municipal corporation.
WITNESSETH:
WHEREAS, the DEVELOPMENT is owner of that certain real property located in the Village, legally
described in Exhibit "A" attached hereto and incorporated herein; and
WHEREAS, on July 14, 2005, the VILLAGE adopted Ordinance 14-2005 approving the development of
the Domani Project ("Domani" or "Project"), a planned unit development subject to certain terms and
conditions contained in Ordinance 14-2005; and
WHEREAS, Section 4 of Ordinance 14-2005, provided for installment payments to the VILLAGE by the
DEVELOPMENT of the sum of $1,175,000.00, which payments were being made as required by Section
36-23 of the Village's Subdivision Regulations; and
WHEREAS, Ordinance 14-2005 was subsequently amended by Ordinance 25-2006, authorizing the
Village Council to vary the timeframes for construction of the Project, and Resolution 2006-90, amending
the construction timeframes for the Project; and
WHEREAS, based on changing and worsening conditions in the Florida and United States real estate
markets, the DEVELOPMENT may wish to postpone and amend the development plan for Domani; and
WHEREAS, the DEVELOPMENT desires to provide the VILLAGE dates certain for the payment of the
funds outlined in Section 4 of Ordinance 14-2005, as amended; and
WHEREAS, the VILLAGE and the DEVELOPMENT have agreed that payment of these funds shall
satisfy all Village impact fees, including those payments required by Section 36-23 of the Village
Subdivision Regulations.
NOW, THEREFORE, in consideration of the covenants and agreements contained herein, the receipt and
sufficiency of which is hereby acknowledged by both parties, the VILLAGE and the DEVELOPMENT
agree as follows:
1. The above recitals are true and correct and are incorporated herein by reference.
2. In lieu of the scheduled installment payments of the $1,175,000.00 owed by the
DEVELOPMENT to the VILLAGE, as outlined in Ordinance 2005-14, as amended, the
DEVELOPMENT and the VILLAGE hereby agree to the following payment schedule:
a. The DEVELOPMENT shall pay the sum of $250,000.00 to the VILLAGE upon
execution of this Agreement.
b. Thereafter, the DEVELOPMENT shall pay to the VILLAGE the sum of $250,000.00 on
each anniversary of the Effective Date of this Agreement until the total of $1,175,000.00
is paid in full (notwithstanding the foregoing, the final payment shall be $175,000.000
rather than $250,000.00).
c. When the DEVELOPMENT commences construction of the Domani Project, any
payments not yet paid by the DEVELOPMENT to the VILLAGE under the payment
schedule outlined above shall become immediately due and payable upon receipt of the
first condominium residential unit Certificate of Occupancy for the Project.
d. Notwithstanding the foregoing, if the DEVELOPMENT sells, transfers or conveys the
Property, or any portion thereof, to an unrelated third party not owned or at least 50%
controlled by the DEVELOPMENT, then the DEVELOPMENT shall pay any payments
not yet paid under paragraphs 2.6 or 2.c of this Agreement to the VILLAGE so that the
full amount of $1,175,000.00 shall be paid prior to the sale, transfer or conveyance of the
Property or any portion thereof.
3. The DEVELOPMENT and the VILLAGE agree that venue for any litigation arising under or as a
result of this Agreement shall occur in Palm Beach County, Florida.
4. The parties hereto agree that a signed copy of this Funding Agreement via fax in separate
counterparts is as valid as the original(s).
5. This Agreement shall not be construed against the party who drafted the same as all parties to this
Agreement have hired legal and business experts to review the adequacy of the same.
6. This Agreement shall be construed in accordance with the laws of the State of Florida.
7. This Agreement is binding upon the parties hereto, their heirs, successors, and assigns.
8. To the extent that any portion of this Agreement is deemed unenforceable by a court of competent
jurisdiction, then such portion shall be stricken but the court of competent jurisdiction shall
reform such provision to conform to the original intent of this Agreement and the provision
stricken.
9. If any legal action or other proceeding is brought for the enforcement of this Agreement, or
because of an alleged dispute, breach, default or misrepresentation in connection with any
provision of this Agreement, including injunctive relief, the successful or prevailing party shall be
entitled to recover reasonable attorney's fees and costs (including appellate fees an costs)
incurred in that action or proceeding, in addition to any other relief to which such party may be
entitled.
DONE THIS YEAR AND DATE STATED ABOVE
IN WITNESS WHEROF, the parties have set their hands hereunto as of the date first above written.
VILLAGE F NORTH PALM BEACH
By: ~~ ~ ~
OR
ATTEST:
By: i~6~
VILLAGE CLERK
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY
VILLAGE ATTORNEY
DEVELOPMENT:
DOMAN DEVE OPMENT LLC
By: