Sec. 74-201. - Imposition of impact fees.
Sec. 74-204. - Alternative fee calculation.
Sec. 74-205. - Developer contribution credit.
Secs. 74-206—74-300. - Reserved.
Sec. 74-201. - Imposition of impact fees.
(a)
General requirements. All development within the unincorporated areas and within the boundaries of all municipalities in the county shall pay all assessed impact fees unless such impact fees, in whole or in part, have been exempted, waived, or deferred pursuant to this chapter. The impact fee shall be assessed based on a calculation of the impact of the proposed development on the respective public facilities. The amount of the impact fee to be assessed for each type of public facility shall be as specified in sections 74-302 through 74-311 (section 74-302—Special requirements for road impact fee; section 74-303—Special requirements for water impact fee and/or sewer impact fee; section 74-304—Special requirements for parks and recreational facilities impact fee; section 704-305—Special requirements for library facilities impact fee; section 74-306—Special requirements for emergency medical services impact fee; section 74-307—Special requirements for educational facilities impact fee; section 74-308—Special requirements for correctional facilities impact fee; section 74-309—Special requirements for fire facilities impact fee; section 74-310—Special requirements for general government impact fee; and section 74-311—Special requirements for law enforcement impact fee).
(b)
Impact fee rates. The board hereby adopts the impact fee rates incorporated by reference in sections 74-302 through 74-311, inclusive, and as set forth in Schedules 1 through 10, inclusive, appended hereto as Appendix A, which shall be imposed upon all development occurring within the county. These impact fee rates may be changed from time-to-time by board resolutions or by Collier County Ordinances provided, in every instance, the board advertises notice of a scheduled public hearing in a newspaper of general circulation in Collier County with regard to the then proposed impact fee schedule amendments.
(c)
Change of size or use. Impact fees shall be imposed and calculated for net increase, alteration, expansion, or replacement of a use or a building, or part of a building (including dwelling unit), and each accessory or non-accessory building, provided such net increase, alteration, expansion, or replacement of the use, building, or part thereof or therein, by applying this chapter results in: (1) a net increase in the number of dwelling units; (2) a net increase in the size or square footage of a building; (3) a net increase in the size of the use; or (4) intensification of the use so as to constitute an expansion of the same use category or result in a change to a higher impact fee land use category; or (5) otherwise create additional demand or additional impacts on any of the public facilities. The impact fee imposed under the applicable impact fee rate shall be calculated as follows:
(1)
If the impact fee is calculated based on land use and not square footage, such as a golf course, the impact fee imposed shall be the impact fee due under the applicable impact fee rate for the impact fee land use category resulting from the alteration, expansion or replacement minus the impact fee that would be imposed under the applicable impact fee rate for the impact fee land use category immediately prior to the new alteration, expansion or replacement.
(2)
In the event only the square footage of a use or building is increased, the impact fee shall be calculated only for the net increased square footage.
(3)
The impact fee imposed for any accessory buildings shall be that applicable under the impact fee rate for the land use for the primary building unless the accessory building has its own impact fee rate.
(4)
If proposed changes to a lawfully existing building or then permitted use are deemed to create any additional impact on one or more public facilities, then the impact fee that will be due and payable to the county for such proposed changes will be determined by the net increase in demand on those public facilities any lawfully existing building or land use that is expanded, replaced, or changed shall be required to pay impact fees based on the new or net additional demand placed upon one or more public facilities by applying the then applicable impact fee rate schedule. Therefore, impact fees will be assessed only for the net increase in square footage, number of unit(s), intensification of land use, or any other change resulting in increased available capacity. The burden of verifying the previous lawful land use, units and square footage, as applicable, shall be on the applicant. Any proposed changes under this section which would result in lower net impacts upon one or more public facilities are not entitled to a downward adjustment, off-set, or credit against any previously paid impact fees.
(5)
Impact Fee Program for Existing Commercial Redevelopment. Proposed developments which meet the criteria set forth below shall not be assessed additional impact fees related to changes of use within the existing buildings, except for water and wastewater impact fee assessments which are exempt from this program. This program will officially sunset two years from the date of adoption unless continued by a resolution of the Board of County Commissioners prior to this date.
a.
Development is proposed within a lawfully existing building which has had a Certificate of Occupancy issued for at least 3 years. Impact fees for the existing building must have been paid the then applicable impact fees at time of construction; and
b.
Proposed development is solely within the existing building and does not include the addition of any new square footage.
c.
Demolition and reconstruction projects are not eligible for this program.
(d)
Exemptions. The following development or change in use shall be exempted from paying additional impact fees:
(1)
Alteration, expansion or replacement of a building, structure, dwelling unit, or use provided the respective alteration, expansion or replacement: (1) will not create any additional net increase in the size or square footage of the respective development, including number of dwelling units, (2) will not result in a net increase of the intensity of use(s); or (3) will not otherwise create any additional net demand of the respective public facility. Lawful buildings, structures and/or uses that are not in actual use at the time of the submittal of an application to the county for development approval and issuance of that building permit (or other development approval) and that would otherwise result in an obligation to pay the new (additional) impact fees shall not be eligible for this exemption unless the applicant can prove that the building had been lawfully used during any time within the immediately preceding seven years and the building or structure has not been condemned.
(2)
New building(s) or addition to a building(s) or an accessory building or structure that will not create additional net demand upon the public facility for which the exemption is sought over and above the then existing development impacts deemed to be created by the then lawful existing building(s), structures or uses.
(3)
Construction or expansion of publicly owned residential housing; however this exemption shall not apply to the applicable impact fees for water and/or sewer public facilities, or for the applicable impact fees for educational public facilities.
(4)
Lots, pads, sites, foundations or spaces for a single mobile home, recreational vehicle, travel trailer, or park model, when the applicable impact fee has been previously paid, or if the then existing development was not subject to the impact fee because the county's original applicable impact fee ordinance had not then become effective.
(5)
An "adults only community" shall be exempt from the educational facilities impact fee only if: (i) evidence of permanent age restrictions, which require all residents of the adults only community to be older than 18 years of age, are recorded in the land records of Collier County and run with the specified geographic area, or (ii) an effective planned unit development document restricts the occupation/residency of the subject property to persons older than 18 years of age.
(6)
Development for which the respective impact fee is then expressly prohibited by Florida law, rule or regulation, or by federal law, rule or regulation.
(7)
Exemptions from road impact fees for specified airport leases.
a.
Placement of buildings upon the leasehold by or through the leasing subtenant or tenant within the then existing boundaries of a county-owned airport are eligible for exemptions from road impact fees provided the airport leasing agreement was executed prior to March 13, 2001, and the lease, when executed, expressly provided that the county or the airport authority, not later than 29 years subsequent to the initial effective date of the leasing agreement, at no expense to the county or airport authority, will automatically acquire title to the respective buildings, or if the board or airport authority decides not to acquire title to such buildings, the subtenant (or tenant), at no expense to the county or the airport authority, shall promptly remove such buildings and restore the leased (or subleased) premises to the physical conditions that existed as of the commencement date of the respective leasing agreement. Eligibility for these exemptions shall be vested retroactively to the date of the original execution of the lease.
b.
These exemptions are to be granted by the county manager subject to an application for the requested exemption being submitted to the county manager, which shall include a copy of the associated airport lease and a description of the associated airport leasehold development. Each such request must be submitted to the county manager not later than the date of the application to the county for the associated building permit(s) unless a time extension is granted by the county manager for good cause.
(8)
In the event that a development for which an exemption was previously applied changes use, ownership, or other circumstances occur whereby the previously granted exemption no longer applies, impact fees shall be paid based on the existing land use and impact fee rate schedule in effect at the time of the change which caused the exemption to no longer apply.
(e)
Reserved.
(f)
Fund reimbursement. Every county approved deferral of a water or sewer impact fee requires complete reimbursement and deposit of the entire amount deferred into the applicable water or sewer trust fund(s) within 30 days of the deferral or waiver agreement being signed on behalf of the county, except for deferrals of less than seven years for multi-family affordable housing rental units. However, deferrals of less than seven years for multi-family affordable housing rental units must not adversely impact the cash flow or liquidity of the water and/or sewer impact fee trust fund accounts and thereby frustrate or interfere with the then planned or then ongoing growth-necessitated capital improvements and additions to such water and/or sewer systems. Such an adverse impact may be determined by the public utilities division administrator whenever either of the two trust fund's individual reserve balances is in jeopardy of approaching (or actually has reached) less than a total of $600,000.00 of unappropriated and unencumbered funds. If the public utilities division administrator determines that the unappropriated and unencumbered funds in either of these accounts is then in jeopardy of approaching a level of less than $600,000.00, then the total number of such multi-family affordable housing rental units that may be approved in any such fiscal year (including the fiscal year when the public utilities division administrator makes such a "funds in jeopardy" determination) for deferrals (i.e., for less than seven years) shall not exceed 225 units. This unit number limitation will continue so long as a determination of "jeopardy" exists, except that any of the 225 units not approved by an agreement in any fiscal year where funds are in "jeopardy" may be accumulated and rolled-over from one fiscal year to the next fiscal year until such time as the "jeopardy" determination ends. The number of multi-family rental deferrals granted in a fiscal year where funds are in "jeopardy" may exceed 225 units, but only if an alternate funding source for the deferral is secured.
(g)
Immokalee Enterprise Zone Deferral Area.
(1)
Pursuant to the provisions set forth in this subsection the county shall defer the payment of impact fees for all owner-occupied dwelling units within the geographic boundaries of the Immokalee Enterprise Zone, which is United States Census Tracts numbers 112.04, 112.05, 113 and 114 (the Immokalee Census Tract). Such provisions will automatically sunset three years from the effective date of the amendment establishing these provisions unless otherwise officially extended by the Collier County Board of County Commissioners.
(2)
This deferral program will be funded by budgeted and appropriated funds from general revenue, subject to the availability of funding, and from a portion of the tax increment revenue generated by ad valorem property taxes associated to the qualifying development. All re-payments to satisfy liens, as well as any applicable interest accrued due to default from the program, shall be paid back to general revenue and the community redevelopment area trust fund, as applicable to each qualifying development.
(3)
As used in this subsection, (g) of section 74-201, "qualifying development," means an owner-occupied dwelling unit and its associated lot or land. "Sale" includes each and every voluntary and/or involuntary sale of any part of the fee title to any part of the real property that is subject to the respective deferred impact fees (as described in the agreement). "Transfer" includes each and every transfer, voluntary or involuntary (including transfer by court order or order of any administrative agency or administrative body, and including whether the transferee is a government or agency of a government, excepting only the following: Transfer of fee title of the property from one original tenant by the entireties to the other original tenant by the entireties; transfer of any part of the fee title between (or among) the original joint tenants, or between or among the original tenants in common. "Refinancing" includes any extension of the payment term or any increase in the amount financed, of any original mortgage(s) or other financing document that has as security for the payment obligation any fee title to the real property that is subject to the deferred impact fees. "Original" refers to the parties to the relevant document on the effective date of the applicable impact fee deferral agreement. Notwithstanding anything in this subsection (g) of section 74-201, the county manager may waive the triggering of the obligation to pay deferred impact fees due to a sale, a transfer or refinancing if, in the judgment of the county manager, the respective sale, transfer or refinancing is of such a nature as not to justify that the deferred impact fees should become due and payable because of the sale, transfer, or refinancing.
(4)
Any person seeking an impact fee deferral for a proposed owner—Occupied dwelling unit, wholly within the Immokalee Enterprise Zone, shall file an application for deferral with the county manager prior to receiving a certificate of occupancy (CO) for any such proposed Development. The application for deferral must contain the following:
a.
The name and address of the property owner; and
b.
A current and complete legal description of the site upon which the qualifying development is proposed to be located; and
c.
The qualifying development will be owner-occupied and the homestead of the applicant; and
d.
A notarized affidavit affirming that the maximum sale price of the proposed qualifying development will not exceed $254,250.00. Should the maximum home sales price exceed $254,250.00 for the qualifying new construction, the applicant may be subject to the collection provisions provided for in article V, section 74-501, including delinquency fees and interest dating back to the effective date of the deferral agreement; and
e.
Proof of qualifying income level, which is less than or equal to $100,000.00 annual household income from all sources; and
f.
Payment of a non-refundable application filing fee in the amount of $300.00.
(5)
If the proposed qualifying development meets the requirements for a deferral, as listed above, the county manager may enter into an impact fee deferral agreement with the owner.
(6)
The impact fee deferral agreement shall stand in lieu of payment of impact fees pursuant to section 74-202 of this article, which impact fees would otherwise be due and payable as a prerequisite to the issuance of the building permit(s) for that development but for the deferral agreement. The deferral agreement must contain the following provisions:
a.
The name and address of the property owner; and
b.
The correct legal description of the affected property, which is the property that will be subject to lien and be subject to foreclosure; and
c.
That such payment shall be without interest only if the agreement has not been breached by the non-county party thereto at any time in the deferral period, but shall be subject to interest retroactively to the effective date of the agreement if the agreement is breached by the non-county party thereto; and
d.
That the deferred impact fees shall be due and payable, and shall be paid to the county upon the first occurrence of any of the following: when any part of the affected real property is sold, or is transferred, or is refinanced, and in any such event the deferred impact fees shall be paid in full to the county not later then the closing of the sale, or not later then the effective date of the transfer, or before the refinancing becomes final; and
e.
That such impact fees shall automatically become a lien on the affected property (the property described in the legal description noted above), and shall be due and payable (and may be foreclosed upon by the county) if and when there is any breach of the agreement by the non-county party thereto; and
f.
That the qualifying development must remain owner-occupied and homesteaded and any change in the status of the occupation or loss of homestead will constitute a breach in the agreement and impact fees will be considered to be in default and immediately due and payable, including any applicable interest, in accordance with this section and the collection provisions set forth by section 74-501 of this chapter; and
g.
That the recorded agreement shall serve as an obligation to pay the deferred impact fees that runs with the affected property and that such obligation shall terminate upon the county recording in the public records of Collier County a release or full satisfaction of the lien, and that release or satisfaction will be recorded by the county upon payment to the county in full of all of the deferred impact fees; and
h.
That neither the deferred impact fees nor the agreement providing for the deferral of impact fees shall be transferred, assigned, credited, encumbered, or conveyed from the property, and that the deferral of impact fees and the agreement shall run with the land; and
i.
That upon satisfactory completion of all requirements of the agreement by the noncounty party thereto, the county shall record all necessary documentation evidencing satisfactory completion of the agreement, and any such lien shall terminate upon the recording of a release or full satisfaction of lien in the public records of Collier County. Such release shall be recorded upon payment in full of the impact fees; and
j.
The agreement shall be binding upon the property owner's, its successors and assigns; and
k.
That the agreement shall be recorded in the official records of Collier County and the agreement shall not be effective until it is so recorded.
l.
That if the noncounty party is in a non-curable default under the agreement, or if the default is curable and the curable default is not cured in full within 30 days after written notice to do so provided to the owner by the county, the board may bring a civil action to enforce the deferral agreement and that the board shall be entitled to recover all fees and costs, including attorney's fees and expenses incurred by the county in enforcing the agreement, plus interest, at the then maximum statutory rate for final judgments, calculated on a calendar day basis until paid in full. In the event that interest should begin to accrue because the noncounty party breaches the agreement, such interest shall accrue retroactively back to the commencement date of the respective impact fee deferral agreement.
(7)
Prior to the issuance of a certificate of occupancy for a qualifying dwelling unit the applicant must also provide a copy of the executed sales contract to the county manager demonstrating a qualifying sales price. A copy of the closing statement demonstrating a qualifying sales price will be provided to the county manager within ten days of the closing of the sale of each qualifying dwelling unit.
(8)
Applicants entering into any other impact fee deferral programs will not be eligible for deferral of impact fees through the provisions set forth by subsection (g).
(9)
The county's interest in the impact fees will automatically be subordinated to the owner's first mortgage and/or any government funded affordable housing loan such as a SAIL or HOME loan.
(Ord. No. 01-13, § 1, 3-13-01; Ord. No. 01-54, § 3, 10-9-01; Ord. No. 02-34, § 1, 6-25-02; Ord. No. 03-25, § 1, 5-27-03; Ord. No. 03-32, § 2, 6-24-03; Ord. No. 2003-63, § 1, 11-8-03; Ord. No. 04-16, § 7; Ord. No. 2005-08, § 1; Ord. No. 2005-28, § 6; Ord. No. 2005-38, § 1; Ord. No. 2005-40, §§ 1, 2; Ord. No. 2006-09, § 2; Ord. No. 2006-26, § 3; Ord. No. 2009-09, § 3; Ord. No. 2009-14, § 1; Ord. No. 2010-22, § 1)
(a)
Unless deferred or waived by a written agreement with the county as a party thereto, or unless exempted, the impact fee shall be paid in full as a prerequisite to the issuance of a building permit for the development, and no building permit or any other authorization to use the land included in the development shall be issued until each applicable impact fee has been paid in full. Notwithstanding any other provision of this section, staff shall not accept prepayment (early payment) of impact fees prior to submittal of the related and complete building permit application for the respective development in all cases where issuance of a conventional building permit renders the respective impact fees due and payable. In instances where a conventional building permit is not required (e.g., golf course, park, change of use, etc.), staff shall not accept prepayment (early payment) of impact fees prior to the (whichever occurs first) event that renders such impact fees due and payable. Payment of estimated impact fees prerequisite to issuance of a certificate of public facility adequacy (COA) is not prohibited pre-payment, and prepayment of estimated impact fees shall not grandfather such estimated impact fees against impact fee increases, if any, that occur subsequent to such pre-payment but before the respective estimated impact fees are quantified and become finally due and payable.
(b)
If the issuance of a conventional building permit for the development is not required (e.g., golf course, park, change of use, etc.), then an applicant shall pay the Impact fee prior to the occurrence of any one of the following events, whichever occurs first:
(1)
The date when the first building permit has been issued for any building or structure accessory to the principle use or structure of the development; or
(2)
The date when the first building permit is issued for the first nonaccessory building or nonaccessory structure to be used by any part of the development; or
(3)
The date when a final development order, final development permit or other final authorization is issued authorizing construction of a parking facility for any portion of the development; or
(4)
The date when a final development order, final development permit or other final approval is issued for any part of the development in instances where no further building permit is required for that part of the development; or
(5)
The date when any part of the development opens for business or goes into use.
(c)
Owners of all golf courses must submit to the county a certified legal description and a certified surveyors sketch (to scale) of the course prepared by a professional engineer before the date the construction of the golf course commences.
(d)
If the development is located within the unincorporated area of the county, the impact fee shall be paid directly to the county.
(e)
If the development is located within a municipality, the impact fee shall be paid as follows:
(1)
If the municipality has entered into a Florida Interlocal Cooperation Act, F.S. § 163.01 agreement with the county that provides for the collection of the impact fee, such impact fees shall be paid and collected in accordance with the provisions of the agreement.
(2)
If the municipality has not entered into a Florida Local Government Development Agreement with the county providing for the collection of the impact fee, such impact fees shall be paid directly to the county. The time that such impact fees become due and payable shall be the same as if the development were in unincorporated Collier County.
(f)
If the development is located within a municipality and the governing body of the municipality has not agreed to require proof of payment of the impact fee to the county prior to the issuance of a building permit by the municipality or to require additionally the payment of the impact fee as a condition of the issuance of a building permit by the municipality, the impact fees shall be collected as provided in subsections 74-202(a) and (b), or, in the event of delinquency in payment, pursuant to section 74-501
(g)
The obligation for payment of the impact fees and impact fees paid shall run with the land. Assignment of impact fee credits from one parcel to another parcel of land shall not be permitted except in accordance with the requirements of section 74-205
(h)
In the event a building permit issued for a development: (i) expires prior to commencement of any part of the development for which the building permit was issued, (ii) is officially cancelled, (iii) is revised after payment of impact fees and the permit's revision results in a reduction in the impact fees applicable for the development, or (iv) results in the impact fees being overpaid due to an incorrect application of the rate schedule, calculation error(s), or prior payment within the same subject property, the then current owner/applicant may, within four years of payment, apply for a reimbursement of a portion of or the entire impact fee, depending on the basis for the request for reimbursement. All such requests for reimbursement shall be calculated by applying the impact fee rate schedule that was in effect on the date of the respective building permit application. Failure to make timely application for a reimbursement of the impact fee shall waive any right to a reimbursement.
(1)
The application for reimbursement shall be filed with the county manager and shall contain the following:
a.
The name and address of the applicant;
b.
The location of the property upon which the respective development was authorized by the respective building permit;
c.
The date the impact fee was paid;
d.
A copy of the receipt of payment for the impact fee; and
e.
The date the building permit was issued and the date of expiration, cancellation or approval of the revision, as applicable;
f.
Payment of a non-refundable "impact fee reimbursement processing fee" equal to two percent of the total impact fees requested to be reimbursed, except that the minimum processing fee shall be $25.00 and the maximum processing fee will not exceed $500.00. Reimbursement requests which are determined to arise from either an incorrect application of the rate schedule or a calculation error by county staff will not be required to pay the "impact fee reimbursement processing fee".
g.
If the request is due to a revision to the building permit, a copy of the approved revision including original and revised square footage, number of units, date of approval of the revision, and an explanation of the nature of the revision (change of size, use, etc.).
h.
If the request is due to an overpayment, receipts from previous payments, corresponding building permit numbers, and evidence of the current square footage (area) and uses of existing structures must be included in the application.
(2)
After verifying that the building permit has expired or was cancelled before the development had commenced or was revised and thereby required a reduction in the impact fee assessed for the development, the county manager shall forward the request for reimbursement of the impact fee to the appropriate division staff for further processing as set forth below.
(3)
If a building permit is subsequently issued for a development on the same property, which was previously approved for a reimbursement, then the impact fee in effect at that time must be paid.
(4)
After verifying all information relating to the request for reimbursement, staff shall forward the request to the applicable division administrator for approval. The division administrator shall approve or deny the request and forward all approved requests to the clerk of the circuit court's finance department for processing.
(5)
All reimbursement requests totaling $25,000.00 or more, cannot be approved administratively and must be submitted to board of county commissioners.
(i)
In the event the county or a municipality issues separate building permits for a building or part of a building within a development which by design contemplates phased (delayed) occupancy, the board and the applicant may enter into an agreement for the phased (installment) payment of the impact fee applicable to that portion of the development represented by such unoccupied units or space; provided, however, that all impact fees due shall be paid in full prior to issuance of a certificate of occupancy for occupancy of any delayed occupancy portion of the building. In the event no agreement is executed for such phased (delayed) occupancy, the impact fees applicable to that portion of the development represented by such building shall be paid prior to the issuance of a building permit.
(j)
The impact fee shall be paid in addition to all other fees, charges and assessments due for the issuance of a building permit.
(k)
In the event a development is a mixed use development, the county manager shall calculate each impact fee based upon each separate impact fee land use category included in the proposed mixed use development as set forth in the applicable rate schedule.
(l)
In the event a development involves a land use not contemplated under the impact fee land use categories set forth in the rate schedules in appendix A, the county manager shall calculate the appropriate impact fees utilizing the methodologies contained in the impact fees adopted by section 74-106. The county manager shall utilize as standards in his determination the impact fee rate calculation variables applicable to the most similar land use categories in the applicable impact fee rate schedules.
(m)
All refunds not specifically addressed herein or in other sections shall follow the procedure[s] set forth in the Collier County Administrative Procedures Manual for Road Impact Fees.
(Ord. No. 01-13, § 1, 3-13-01; Ord. No. 01-54, § 5, 10-9-01; Ord. No. 02-44, § 1, 7-31-02; Ord. No. 03-32, § 1, 6-24-03; Ord. No. 2006-43, § 1; Ord. No. 2007-29, § 1; Ord. No. 2009-09, § 4)
(a)
The board hereby establishes or reaffirms the establishment of separate impact fee trust funds for each of the public facilities, designated as follows:
(1)
Road: "Road Impact Fee Trust Fund";
(2)
Water and sewer: "Water Impact Fee and/or Sewer Impact Fee Trust Funds": The county hereby establishes or reaffirms the establishment of two separate trust funds, one entitled "Water Impact Fee Trust Fund" for water and a second entitled "Sewer Impact Fee Trust Fund" for sewer;
(3)
Parks and recreational: The county hereby establishes or reaffirms the establishment of two separate trust funds, one entitled "Regional Park Impact Fee Trust Fund" (into which the portion of the impact fee allocated to parks and recreational services paid by development located in municipalities within the county will be deposited), and a second entitled "Unincorporated Park Impact Fee Trust Fund" (into which the portion of the impact fee allocated to parks and recreational services paid by development located in the unincorporated areas of the county will be deposited);
(4)
Library: "Library Impact Fee Trust Fund";
(5)
Emergency medical: "Emergency Medical Services Impact Fee Trust Fund";
(6)
Correctional: "Correctional Impact Fee Trust Fund";
(7)
Fire: "Fire Impact Fee Trust Fund";
(8)
General government: "General Government Impact Fee Trust Fund";
(9)
Law Enforcement: "Law Enforcement Impact Fee Trust Fund".
Each of these impact fee trust funds shall be maintained separate and apart from each other and from all other funds of the county. Each fund shall account for all collections, revenues and expenditures, and shall be regularly reported to the board of county commissioners. The portion of the impact fee allocated to each public facility under sections 74-302 through 74-311, inclusive, shall be deposited into the corresponding impact fee trust fund immediately upon receipt. Each of the foregoing impact fee trust funds shall be further separated or divided based upon benefit districts established pursuant to the respective sections 74-302 through 74-311. No impact fee in any trust account shall be loaned to any other impact fee trust account, but may be utilized in adjacent districts as set forth herein.
(b)
The funds deposited into each impact fee trust fund shall be used solely for the purpose of providing growth necessitated improvements and additions to the specific public facility or in that road impact fee district or any one or more adjacent road impact fee district for which the impact fee was assessed including, but not limited to the following:
(1)
Design and construction plan preparation;
(2)
Permitting and fees;
(3)
Construction and design of public facilities;
(4)
Land and materials acquisition, including costs of acquisition and condemnation;
(5)
Right-of-way acquisition, including costs of acquisition and condemnation;
(6)
For the road impact fee only, construction of new through lanes, new turn lanes, new bridges, bike lanes, sidewalks, street lights, and new traffic signalization. However, impact fee funds shall not be used to fund bike lanes or sidewalks unless they are constructed concurrently as part of a road project that increases capacity. Other capital cost items, including the relocation, but not the upsizing of, water and/or sewer utility facilities, may be included subject to such cost being contemplated in the then-applicable road impact fee study.
(7)
Design and construction of new drainage facilities required by the construction of public facilities;
(8)
For water and/or sewer impact fees, relocating the respective utility facilities required by the county and additions to county utility facilities;
(9)
Landscaping;
(10)
Construction management and inspection;
(11)
Surveying, soils and material testing;
(12)
For the water impact fee only, development of raw water sources and supplies;
(13)
Acquisition of capital equipment for public facilities;
(14)
Acquisition of apparatus, equipment or furniture necessary to expand the public facilities;
(15)
Repayment of monies transferred or borrowed from any budgetary fund of the county, or the school board in the case of educational facilities impact fee, subsequent to the adoption of this chapter, which were used to fund construction, acquisition and/or improvements to public facilities;
(16)
Payment of principal and interest, necessary reserves and costs of issuance under any bonds or other indebtedness (including certificates of participation in accordance with F.S. §§ 230.23 and 235.056, for educational facilities impact fees) issued by the county, or the school board in the case of educational facilities impact fee, to fund growth impacted public facilities subsequent to the adoption of this chapter;
(17)
Reimbursement of excess impact fees due pursuant to section 74-202 or section 74-205
(18)
Design and construction of public facilities necessitated by the construction of the specific public facility for which the impact fee was assessed;
(19)
To the extent provided by law, reimbursement or refund of costs incurred by the county, or the school board in the case of educational facilities impact fee, in the preparation of this chapter, of any update to the impact fee studies adopted pursuant to section 74-106, and any amendments or supplements adopted pursuant to section 74-502 and any other actual administrative costs incurred by the county;
(20)
Administration for the specific public facility for which the funds were collected directly relating to this chapter; and
(21)
Any other expenditures of the respective impact fees as then allowed by law.
(c)
Impact fee trust funds shall not be used for any expenditure that would be classified as a maintenance or repair expense.
(d)
The monies deposited into the impact fee trust fund shall be used solely to finance public facilities required by growth as projected in the impact fee studies, the comprehensive plan, or in the county's then current water or sewer master plan provided the project in the respective master plan is consistent with the comprehensive plan.
(e)
All funds on deposit which are not then immediately necessary for expenditures shall be invested by the county in compound-interest bearing trust fund(s).
(f)
The impact fee collected pursuant to this chapter (including all predecessor ordinances that are hereby being consolidated into this chapter) shall be returned to the then current owner of the property for which such fee was paid if which fees have not been expended or encumbered prior to the end of the fiscal year immediately following the sixth anniversary of the date when the respective impact fee was paid. Refunds shall be made only in accordance with the following procedure:
(1)
The then current owner shall petition the board for the refund prior to the end of the fiscal year immediately following the tenth anniversary of the date of the payment of the respective impact fee.
(2)
The petition for refund shall be submitted to the county manager, and shall contain:
a.
A notarized sworn statement that the petitioner is the then current owner of the property for which the impact fee was paid;
b.
A copy of the dated receipt issued for payment of such fee or such other record as would clearly indicate payment of such fee;
c.
A certified copy of the latest recorded deed; and
d.
A copy of the most recent ad valorem tax bill.
(3)
Within 90 days from the date of receipt of a complete petition for refund, the county manager will advise the owner of the status of the impact fee requested for refund, and if such impact fee has not been expended or encumbered within its applicable time period, then it shall be returned to the then current owner. For the purposes of this section, fees collected shall be deemed to be spent or encumbered on the basis of the first fee in shall be the first fee out. Such funds may be encumbered by contract, bond, resolution, ordinance, or otherwise.
(4)
Impact fee monies refunded by the board in accordance with this subsection (f) shall be paid with interest accrued to the principal being refunded but not to exceed the rate of five percent simple interest. Except as provided for in this subsection (f), no interest shall be paid upon the return or refund of impact fees.
(g)
Failure to file a timely petition for a refund upon becoming eligible to do so shall be deemed to have waived any claim for a refund, and the county shall be entitled to retain and apply the impact fee for growth necessitated capital improvements and additions to the respective public facilities. All refunds not specifically addressed herein or in other sections shall follow the procedure(s) set forth in the Collier County Administrative Procedures Manual for Road Impact Fees.
(h)
Notwithstanding any other provisions in this section or in any other county ordinance, the provisions in subsection (D) of section 19, Chapter 88-499, Laws of Florida, a Florida Special Act applicable to the county's water-sewer district, specify the requirements for eligibility for refunds of water and sewer impact fees when the structure on the property is not authorized to connect into the county's respective utility system within ten years of the date of payment of the related impact fees. The administrator of the public utilities division is authorized to grant such refunds without further approval from the board subject to the refund applicant complying with all then applicable refund requirements.
(i)
Impact fee deferrals available to charitable organizations and charitable trusts. These impact fees deferrals are available only to eligible not-for-profit, charitable entities as specified herein. The cumulative total of all not-for-profit deferrals in each of the county's fiscal years shall not exceed $200,000.00. Impact fees collected by the county for water, wastewater, educational facilities and fire impact fees shall not be deferred under these provisions.
(1)
Entities eligible for deferrals. These deferrals are available only to charitable, not-for-profit entities that provide services of substantial benefit to low-income or very low-income residents of the county at no charge or at reasonable, reduced rates, and no part of the net earnings of the entity shall inure to the benefit of any private shareholder or individual, with proof of the entity's not-for-profit status and eligibility established to the county's sole satisfaction. Deferrals are available only to entities that solely provide services to citizens of the United States, or legal aliens that permanently reside in the United States. Proof of such must be established to the county's sole satisfaction.
(2)
Amount of deferrals available to applicants. Subject to not exceeding the amount of impact fees paid (or to be paid) by the applicant to the county, the applicant may request deferrals of all impact fees that are eligible for deferral under these provisions, but no applicant shall be granted more than $100,000.00 of not-for-profit deferrals.
(3)
No construction that has obtained an affordable housing deferral under this article shall be eligible for any deferral under these provisions. No construction that has been granted a deferral under these provisions shall be eligible for any county affordable housing deferrals.
(4)
Requests for deferrals pursuant to this section 74-203
a.
Except as specified in this subparagraph a., the applicant must file a written request for deferral to the county manager not later than concurrently with payment of the respective impact fees. The county shall not accept any such requests after the respective impact fees have been paid to the county except in those instances when the Collier County building permit that authorized the respective eligible development was issued after September 7, 2001 and before October 13, 2001 and the development paid the applicable impact fees in full. The applicant can avoid payment of impact fees (up to the maximum amount of impact fees that may possibly be deferred for that applicant) only when it is possible that the board may grant the requested deferral before the respective impact fees become due and payable to the county. The written request must prove all of the applicable above-specified elements that render the entity eligible for the requested deferrals, including the required tax exemption(s). The county manager may request additional information deemed appropriate to ascertain the applicant's eligibility for the requested deferrals, including criteria noted in F.S. §§ 196.195 and/or 196.196.
b.
The county manager shall review each written request to determine eligibility for the requested deferrals. Within 30 days after receipt of the request, the county manager shall inform the applicant in writing whether the request is complete. If the request is incomplete, the applicant, shall be notified in writing why the written request fails to prove that the entity is eligible for the requested deferrals. After receipt of such notice, the applicant shall have an additional 30 days to re-submit an amended request. Failure to meet this deadline shall void the applicant's eligibility for the requested deferrals unless an extension is granted for good cause at the county manager's discretion.
c.
After a written request is determined by the county manager to meet the above-specified minimum filing requirements, the county manager shall promptly place the request on the county's manager portion of the board's agenda. The fiscal year in which the deferral is granted or denied by the board shall be the fiscal year that applies to the request. The executive summary shall specify the criteria deemed by the county manager to render the applicant eligible (or ineligible) for the requested deferrals, and shall include the county manager's recommendations whether the board should grant the request in whole or in part, or should deny the request, along with a proposed agreement that may be executed by the board. No agreement shall apply to more than one applicant. The agreement shall be prepared by the county attorney's office consistent with this chapter.
(5)
Not-for-profit deferrals are discretionary and the board's decisions are final. Impact fee deferrals granted under this program will be secured as a lien on the subject property for the term of the deferral. The term of the deferral shall in all events be due and payable not later than ten years after the execution of the impact fee deferral agreement by the county, unless otherwise extended by the board of county commissioners. Such fees shall be accelerated and automatically be due and payable prior to that time period if there is any breach of the subject impact fee deferral agreement by the noncounty party. In the event that an entity that is the recipient of an impact fee deferral during the term of the deferral is required, due to a new state or federal mandate, to provide services to persons that are not legally residing in the United States, the entity will notify the county manager in writing of the new requirement within 30 days of the effective date of such change, however, having to provide such services pursuant to a new state or federal mandate shall not be deemed a violation of this section or breach of any lien agreement with the county. At the conclusion of the deferral period the subject impact fees for the then-current use are due and payable and upon payment in full of the impact fees the lien will then be satisfied.
(6)
The county manager may adopt additional generally applicable procedural rules with regard to requests provided those rules apply to all similarly situated applicants and do not impose additional mandatory eligibility requirements upon any applicant.
(7)
No construction that has applied for or obtained fee payment assistance funding under chapter 49 of the Collier County Code of Laws and Ordinances shall be eligible for any deferral under these provisions. No construction that has been granted a deferral under these provisions shall be eligible for any county fee payment assistance funding.
(Ord. No. 01-13, § 1; Ord. No. 01-54, §§ 4, 6—8; Ord. No. 01-63, § 2; Ord. No. 02-06, § 1; Ord. No. 04-16, § 8; Ord. No. 2005-28, § 7; Ord. No. 2005-31, § 1; Ord. No. 2005-40, § 3; Ord. No. 2006-26, § 4; Ord. No. 2006-40, § 2; Ord. No. 2007-29, § 1; Ord. No. 07-57, § 2; Ord. No. 08-23, § 1; Ord. No. 08-31, § 1; Ord. No. 2009-09, § 5; Ord. No. 2010-22, § 2)
Sec. 74-204. - Alternative fee calculation.
(a)
The impact fee may be determined by an alternative fee calculation of the fiscal impact of the development on the public facilities if:
(1)
Any person commencing a development which increases demand on any public facility chooses to have the impact fee for that public facility determined by the alternative fee calculation and pays to the county in full the impact fee calculated pursuant to the applicable impact fee rate schedule and a non-refundable alternative fee calculation review fee of $2,500.00 or any other review fee amount then established by the board by ordinance or resolution; and
(2)
The applicant believes that the nature, timing or location of the proposed development makes it likely to generate impacts costing less than the amount of the impact fee generated by application of section 74-201 and the impact fee rate calculations in sections 74-302 through 74-309, as applicable for the public facilities at issue; and
(3)
The applicant commences the alternative fee calculation process by requesting in writing to the county manager, and attends with the county manager, the preapplication meeting described in subsection 74-204(b) within 90 days of the issuance of the building permit for the development; and
(4)
The applicant submits to the county manager a completed alternative fee calculation study as described in this section within 12 months of the issuance of the building permit for the development. Prior to expiration of the foregoing 12-month period, the applicant may request in writing to the county manager up to a six-month extension of time to submit the completed alternative fee calculation study. Such extension request may be granted by the county manager for good cause shown for extending the time period in which the study is to be completed. Other extensions of time timely requested by the applicant in writing may be granted.
(b)
Prior to commencing the alternative fee calculation, the applicant 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 normally cover the following topics: (1) proposed previous studies; (2) credits; (3) proposed study sites; (4) study data elements; (5) proposed data collection methodology; and (6) report format.
(c)
Subsequent to the pre-application meeting, the applicant shall submit three copies of the proposed approach to the alternative 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, the applicant will be notified 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 the applicant to incorporate and address in its resubmittal to the county. The applicant shall be required to receive approval from the county manager prior to proceeding with the alternative fee calculation. If the county manager has not approved the applicant's proposed approach after one resubmittal, the applicant may request a decision from the county manager whereupon the county manager shall either approve, approve with conditions, or deny the proposed approach.
(d)
The alternative fee calculation shall be undertaken through the submission of an impact analysis for the public facilities at issue, which shall be based on data, information, methodology and assumptions contained in this chapter 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 years, 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 public 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 public facilities at issue. Technical details of approach, methodology, procedures and other matters relating to the alternative fee calculation may be addressed in an administrative procedures manual developed by the county manager and approved by resolution of the board.
(e)
The alternative fee calculation shall be submitted by the applicant for the proposed development 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.
(f)
Within 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 county manager will not be required to take any further action on the alternative fee calculation until all specified deficiencies have been corrected.
(g)
After the county manager determines that the alternative fee calculation is complete, he shall notify the applicant of its completion within ten days, and he shall, within 30 county 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 the applicant, the item will be scheduled for the next available board meeting.
(h)
If the county manager determines that in the alternative fee calculation the county's cost to accommodate the proposed development is statistically significantly different than the impact fee established pursuant to section 74-201 and the applicable sections 74-302 through 74-309, the amount of the impact fee shall be reduced to a dollar amount consistent with the amount determined by the alternative fee calculation, subject to the board's approval.
(i)
In the event the applicant disagrees with a decision of the county manager that effectively results in a denial of the alternative fee calculation, the applicant may file a written appeal petition with the board not later than 30 days after receipt of notice of such a decision by the county manager. In reviewing the decision, the board shall use the standards established herein. The appeal petition must advise the board of all issues and shall explain the precise basis the applicant asserts that the decision(s) of the county manager is/are alleged to be incorrect.
(Ord. No. 01-13, § 1, 3-13-01)
Sec. 74-205. - Developer contribution credit.
(a)
A person may apply for a credit against any impact fee owed pursuant to section 74-201 for a specific type of public facility for any contribution, construction or land dedication conveyed to, accepted and received by the county for that same type of public facility. The county may grant a credit against the impact fee imposed against a development pursuant to section 74-201, for the construction, installation or contribution of any public facilities, or improvements and additions thereto, or land dedication related thereto, required pursuant to a development order for the development, or not required by such development order. Such construction, contribution or land dedication shall be subject to the approval of the county manager and the board as described herein and shall be an integral part of, and a necessary accommodation to, existing or contemplated public facilities. Anything to the contrary notwithstanding, a contribution or dedication related to a specific type of public facility shall be available as a credit only against the impact fee for the same type of public facility and there shall be no intermingling or cross-over of credits from one type of public facility to another type of public facility.
(b)
A credit granted against the applicable impact fee for certain dedications of land or for the contributions of off-site improvements to the transportation network, contributions of construction or installation of regional water and/or regional sewer systems, buildings, facilities and/or improvements and/or additions thereto, made to the regional water and sewer systems, or for other authorized contributions or dedications for other public facilities authorized in this chapter, whether required to be made pursuant to a development order by the county or not, shall be subject to the following standards:
(1)
The dedicated land shall be an integral part of, and a necessary accommodation to, contemplated off-site improvements to the adopted needs plan transportation network, or the county's regional water and regional sewer systems needs, whether on-site or off-site, or the county's other public facility needs, as determined by the county;
(2)
The road off-site improvements to be contributed shall be an integral part of, and a necessary accommodation to, the adopted cost feasible plan for the transportation network;
(3)
Except as provided in sections 74-205(b)(1) and (b)(2), no other dedications of land, contributions of off-site improvements, contributions of construction or installation of improvements shall be entitled to developer contribution credit from the impact fee;
(4)
All dedicated land for road right-of-way shall be conveyed in fee to the county by statutory warranty deed. Other conveyances to the county, including right-of-way or easements required by the county shall be conveyed to the county pursuant to ordinances, resolutions, guidelines or regulations then in effect and in form of conveyance acceptable to the county attorney.
(5)
The credit for a dedication of land shall not exceed the fair market value of the land dedication as based upon a written appraisal by a qualified and professional appraiser acceptable to the county, based upon comparable sales of similar property between unrelated parties in a bargaining transaction as of the date of the contribution; the date of the commencement of the construction; the date of the land dedication; or for dedications, the day before the date of the issuance of the development order approval (zoning amendment, site plan approval, PUD approval, or other development order approval) wherein the contribution, construction or land dedication was proffered or required; whichever occurs first.
(6)
In the case of contributions of construction or installation of improvements, the value of the proposed contribution shall be adjusted upon completion of the construction to reflect the actual costs of construction or installation of improvements contributed by the developer. The actual cost of construction for the contribution shall be based upon costs certified by a professional engineer or architect, as appropriate. However, in no event shall any upward adjustment in the credit amount as set forth in the developer contribution agreement between the owner and the county exceed 15 percent above the initial certified estimate of costs for contributions as provided by the professional engineer or architect, as appropriate. Upon adjustment of the value of the developer's contribution, the contribution credit shall be adjusted accordingly.
(7)
Until the contribution credit is finally adjusted upon completion of construction, no more than 75 percent of the initial estimate of costs for contributions to the regional water and/or sewer systems identified in the contribution agreement shall be actually applied or used in the calculations of available credit against water and/or sewer systems impact fees.
(8)
No credit whatsoever for lands, easements, construction or infrastructure otherwise required to be built or transferred to the county by law, ordinance or any other rule or regulation shall be considered or included in the determination of any value of any developer's contribution.
(9)
All construction cost estimates shall be based upon, and all construction plans, specifications and conveyances shall be in conformity with, the construction standards and procedures of the county as then adopted by ordinance. All plans and specifications must be approved by the county manager, transportation administrator, public utilities administrator or appropriate division or department administrator, and other appropriate governmental entity prior to commencement of construction. A determination of the amount of credit or reimbursement shall be made prior to consideration by the board.
(10)
No credit for a particular type of public facility shall exceed the impact fee for that type of public facility for the proposed development imposed by this chapter, unless a credit (developer's) agreement has been completed pursuant to the requirements of this section.
(c)
An applicant who desires to make a dedication of land or contribution for impact fee credits shall, prior to issuance of a building permit, submit to the county a proposed plan for the dedication of land or for the contribution. The proposed plan of construction or dedication shall include:
(1)
A designation and legal description of the development for which the plan is being submitted;
(2)
A list of the contemplated improvements;
(3)
A legal description of any land or interest in land proposed to be dedicated and a written appraisal prepared in conformity with the requirements of this section;
(4)
An estimate of proposed construction costs certified by a professional engineer or architect, as appropriate; and
(5)
A proposed time schedule for completion of the proposed plan of construction or dedication prepared by a professional engineer or architect, as appropriate;
(d)
Upon submission of a complete plan, the transportation administrator or the public utilities administrator, or appropriate division or department administrator, shall present to the board at a regularly scheduled meeting or a special meeting called for the purpose of reviewing the proposed plan and shall provide the applicant or owner written notice of the time and place of the presentation. The board shall authorize the county attorney to prepare a contribution agreement with the owner only if:
(1)
There is a finding that the dedications or contributions contemplated by the agreement are consistent with the comprehensive plan and the requirements of this section;
(2)
Such proposed plan is in conformity with contemplated improvements and additions to the transportation network in compliance with the requirements of sections 74-205(b)(1) and (b)(2) or contemplated improvements and additions to the regional water and/or sewer systems, or otherwise in compliance with sections 74-205(b)(1) and (b)(2) for other public facilities;
(3)
There is sufficient funding remaining in the adopted road impact fee annual credit threshold budget, or any threshold that may be established for other public facilities, to cover the request for such credits; and
(4)
Such proposed plan, viewed in conjunction with other existing or proposed plans, will not create a detrimental imbalance between the treatment and transmission capabilities of the regional water and/or sewer systems; and
(5)
The transportation administrator or public utility administrator or county manager has determined that the proposal furthers the development of the applicable component of the public facilities and the proposed plan is, in the opinion of the board of county commissioners, consistent with the public interest.
(6)
Such proposed plan, viewed in conjunction with other existing or proposed plans, will not adversely impact the cash flow or liquidity of the applicable public facility impact fee trust account in such a way as to frustrate or interfere with other planned or ongoing growth necessitated capital improvements and additions to such public facility systems; and
(7)
The proposed time schedule for completion of the plan is consistent with the then most recently adopted five-year capital improvement program for the applicable public facility.
(e)
Upon approval of a proposed plan of dedication or contribution, the transportation administrator or public utilities administrator or county manager shall determine the amount of developer credit and shall approve the timetable for completion of construction. The amount of developer credit to be applied against the applicable public facility impact fee shall be determined according to the standards of valuation described in section 74-205(b).
(f)
Upon approval of a plan for the dedication or contribution, a developer contribution agreement shall be entered into between the county and the owner. A nonrefundable processing, review and audit fee of $2,500.00 shall be due once the voluntary plan has been approved and prior to the preparation of a contribution agreement by the county attorney. The processing, review and audit fee shall be returned to the applicant if either the county manager, the authorized division or department administrator, or the board determines the proposed plan is not acceptable. The processing, review and audit fee shall become non-refundable when the board authorizes the county attorney to prepare a contribution agreement. The contribution agreement shall, at a minimum, provide for and include, but not be limited to:
(1)
Identification of the parties including a representation from the owner or owners disclosing who are the record owners of the real property described in the contribution agreement. If requested by the county attorney, the applicant or owner shall provide to the county attorney, at no cost to the county, an attorney's opinion identifying the record owner, his authority to enter into the contribution agreement and identify any lien holders having a lien or encumbrance on the real property that is the subject of the agreement. Said opinion shall specifically describe each of the recorded instruments under which the record owner holds title, each lien or encumbrance, and cite appropriate recording information and incorporate by reference a copy of all such referenced instruments.
(2)
A finding that the contributions and dedications contemplated by the agreement are consistent with the comprehensive plan.
(3)
A legal description of all lands included in the development subject to the agreement.
(4)
Impact fee credits shall run with the land in perpetuity, interest free, until used or assigned.
(5)
A graphic drawing or rendering and a legal description of the dedication or contribution to be made pursuant to the agreement.
(6)
An acknowledgement that the dedications or contributions contemplated under the agreement shall be construed and characterized as work done and property rights acquired by a highway or road agency for the improvement of a road within the boundaries of a right-of-way, or by the county, a utility, or other persons or entities engaged in the distribution and transmission of water and/or collection or transmission of sewerage for the purpose of constructing or installing on established rights-of-way, mains, pipes, cables, utility infrastructure or the like.
(7)
An acknowledgement that the contribution agreement shall not be construed and characterized as a development agreement under the Florida Local Government Development Agreement Act, as then amended, or otherwise.
(8)
Adoption of the approved time schedule for completion of the plan.
(9)
Determination of the dollar value amount of credit based upon the standard of valuation as set forth in section 74-205(b)(1) and (2).
(10)
A written appraisal for any land dedication.
(11)
The initial professional opinion of probable construction costs, if any, provided by a professional engineer or professional architect, as appropriate.
(12)
A requirement that the owner keeps or provides for retention of adequate records and supporting documentation that concern or reflect total project cost of the improvements to be contributed. This information shall be available to the county, or its duty authorized agent or representative, for audit, inspection or copying, for a minimum of five years after the termination of the contribution agreement.
(13)
A requirement that the credit for impact fees for the specific public facility identified in the contribution agreement shall run with the land of the subject development and shall be reduced by the entire amount of the impact fee for that public facility due for each building permit issued thereon until the development project is either completed or the credits are exhausted or are no longer available, or have been assigned by operation of or pursuant to an assignment agreement with the county. The foregoing reduction in the impact fee credit shall be calculated based on the amount of the impact fees for that public facility in effect at the time the building permit is issued. The credit shall specify the specific type of public facility impact fee to which it shall apply (e.g., roads, sewer, water, etc.) and shall not apply to any other type of public facility impact fee.
(14)
That the burdens of the contribution agreement shall be binding upon, and the benefits of the agreement shall inure to, all successors in interest to the parties to the contribution agreement.
(15)
An acknowledgment that the failure of the contribution agreement to address any permit, condition, term, or restriction shall not relieve either the applicant or owner, or their successors, of the necessity of complying with any law, ordinances, rule or regulation governing said permitting requirements, conditions, terms or restrictions.
(16)
Compliance with the then applicable risk management guidelines which may be established by the county's risk management department from time to time, including but not limited to insurance and indemnification language acceptable to the county for any contribution or dedication.
(17)
Annual examination and audit of compliance performed by an independent auditor to determine compliance with, and performance under, the contribution agreement, including whether or not there has been demonstrated good faith compliance with the terms of the contribution agreement and to report the credit applied toward payment of impact fees and the balance of available and unused credit. If the board finds, on the basis of substantial competent evidence, that there has been a failure to comply with the terms of the contribution agreement, the agreement may be revoked or modified by the county.
(18)
A provision that mandates modification or revocation of the contribution agreement as may thereafter be necessary to comply with then-applicable and relevant state and federal laws, if state or federal laws are enacted after the execution of the contribution agreement which are applicable to and which preclude the parties' compliance with the terms of the contribution agreement.
(19)
Amendment or cancellation by mutual consent of the parties to the contribution agreement or by their successors in interest.
(20)
Recording of the contribution agreement in the official records within 14 days after the county enters into the contribution agreement. All costs of recording and conveyance shall be paid by the applicant or owner.
(21)
The ability to file an action for injunctive relief in the circuit court of the county to enforce the terms of the contribution agreement, said remedy being cumulative with any and all other remedies available to the parties for enforcement of the agreement.
(22)
An acknowledgment that the contribution agreement shall not be construed or characterized as a development agreement under the Florida Local Government Development Agreement Act.
(g)
Any developer contribution credit granted from the specific type of public facility impact fee shall only be for those dedications or contributions made to accommodate growth, within the respective impact fee district where the development is located, and for the same type of public facility impact fee for which the dedications or contribution has been made.
(h)
All road impact fee credits shall be awarded on an annual basis from an allocation established each fiscal year of the county based upon the recommended annual budget threshold amount as established in the budget of the transportation services division. No road impact fee credits greater than this annual allocated sum shall be allowed in any fiscal year. The balance of any annual unexpended road impact fee credits may be carried over from one fiscal year to the next fiscal year, subject to the allocation limit each fiscal year, until expended, provided such agreement for reimbursement shall not be for a period in excess of seven years from the date of recording the contribution agreement in the official records of the county, and shall provide for a forfeiture of any remaining reimbursement balance at the end of such time period.
(i)
All right-of-way dedications must be consistent with the county's adopted needs plan in order to be eligible for road impact fee credits at the time of the request.
(j)
Any dedication or contribution for which a road impact fee credit is requested must be in the county's cost feasible plan of the transportation network at the time of the request.
(k)
If road impact fee credits are not available at the time of request, the county shall otherwise compensate and may award a cash reimbursement subject to conformity to all other requirements for credit eligibility and subject to the following additional conditions:
(1)
If a phase or phases of the contribution and dedication, or either, are included in the five-year CIE, the county shall compensate and may agree to reimburse for that phase or phases of off-site improvements at the time the funds are scheduled to become available in the five-year CIE; and
(2)
If the county has a budget for advanced right-of-way acquisition, the county may reimburse for the value of the right-of-way, up to the level of the remaining budget for such land acquisition.
(l)
The county shall not reimburse for contributions that are not included in the five-year CIE or that exceed the amount of credits established in the threshold level budgeted.
(m)
In order to maintain the pro-rata or proportionate share purpose of this chapter, it is necessary that a uniform method be used countywide in determining credit against the impact fee. Therefore, the county, when considering compensation or credit, shall apply the then-applicable standards it has established in the unincorporated areas throughout the entire incorporated and unincorporated county, i.e., with regard to roads, the dedication of the minimum local road widths is non-compensable, thus putting the unincorporated areas and the incorporated areas in the same posture and thereby maintaining the integrity of the pro-rata or proportionate share concept.
(n)
Impact fee credits shall not be assigned or otherwise transferred from one development to another development except by written agreement executed by the county, and then, shall only be transferable from one development to another development within the same or adjacent impact fee district for the same type of public facility impact fee. This assignment or transfer may be to commercial and/or residential developments. Impact fee credits will be accomplished only through the operation of a credit agreement. Should an assignment of credit be approved by the county through execution of such an agreement, the assignee shall take the agreement as is and shall be bound by all of the terms and conditions of the agreement as originally executed by the assignor and other parties. No assignee (or transferee) of any such agreement shall have the right to any review procedure under this chapter except to the extent expressly granted in the agreement. The provisions of this paragraph shall apply to subsequent purchasers or successors in title to the owner.
(o)
Any applicant who submits a proposed credit agreement pursuant to this chapter and desires the immediate issuance of a building permit shall pay the impact fee prior to or at the time of the application for the building permit. Said payment shall be deemed paid "under protest" and shall not be construed as a waiver of any review rights. Any difference between the amount paid and the amount due, as determined by the county manager, shall be refunded to the applicant or owner.
(p)
In the event the amount of impact fee credit for a specific type of public facility, pursuant to an approved contribution or dedication, exceeds the total amount of impact fee for that same type of public facility imposed upon the development, the contribution agreement may provide for the future reimbursement to the owner of the excess of such contribution credit from future receipts by the county of impact fees. However, no reimbursement shall be paid until such time as all development at the location which was subject to the credit has been completed. Such reimbursement shall be made over a period of five years from the date of completion of the development as determined by the county.
(Ord. No. 01-13, § 1, 3-13-01; Ord. No. 2010-22, § 3; Ord. No. 2011-19, § 3)