Sec. 75-201. - General requirements.

Provided that a proposed development is otherwise fully consistent with the comprehensive plan and all applicable land development regulations, a developer may choose to satisfy all transportation concurrency requirements by contributing or paying proportionate fair-share mitigation if transportation facilities or facility segments identified as mitigation for traffic impacts are specifically identified for funding in the five-year schedule of capital improvements in the capital improvements element of the Comprehensive Plan or the long-term concurrency management system or if such contributions or payments to such facilities or segments are reflected in the five-year schedule of capital improvements in the next regularly scheduled update of the capital improvements element. The proposed project must be fully funded and financially feasible to qualify for the proportionate fair-share program.

(Ord. No. 06-51, § 1)

Sec. 75-202. - Application process.

(a)

Upon notification of a lack of capacity to satisfy transportation concurrency, the applicant shall also be notified in writing of the opportunity to satisfy transportation concurrency through the proportionate fair-share program.

(b)

Prior to submitting an application for a proportionate fair-share agreement ("agreement"), a pre-application meeting shall be held to discuss eligibility, application submittal requirements, potential mitigation options, and related issues. If the impacted facility is on the SIS, then FDOT will be notified and invited to participate in the pre-application meeting.

(c)

Eligible applicants shall submit an application to the county that includes the requisite application fee and the following:

(1)

Name, address and phone number of owner(s), developer and agent;

(2)

Property location, including parcel identification numbers;

(3)

Legal description and certified survey of property;

(4)

Project description, including type, intensity, density and amount of development;

(5)

Traffic impact study performed in accordance to the county's adopted TIS procedures;

(6)

Phasing schedule, if applicable;

(7)

Roadway safety audit of significantly impacted roadway segments and intersections as outlined in the Collier County TIS guidelines and procedures;

(8)

Approved abutters list and impacted stakeholders list;

(9)

List of all "vested developments" that impacts the segment that the proportionate share is being applied for;

(10)

Analysis showing that all "vested traffic" is included in the remaining roadway capacity calculation when the additional capacity is considered from the capital project being considered for proportionate share;

(11)

Description of requested proportionate fair-share mitigation method(s);

(12)

Copy of concurrency application; and

(13)

Such other information and data that the county deems necessary.

(d)

The county shall review the application and determine whether the application is sufficient and complete within 15 business days from submittal. If an application is determined to be insufficient, incomplete or inconsistent with the general requirements of the proportionate fair-share program as set forth herein, then the applicant will be notified in writing of the reasons for such deficiencies within 20 business days of submittal of the application. If such deficiencies are not remedied by the applicant within 60 business days of receipt of the written notification, then the application will be deemed abandoned. The county may, in its discretion, grant an extension of time not to exceed 60 business days to cure such deficiencies, provided that the applicant has shown good cause for the extension and has taken reasonable steps to effect a cure.

(e)

Pursuant to F.S. § 163.3180(16)(e), proposed proportionate fair-share mitigation for development impacts to facilities on the SIS requires the concurrence of FDOT. The applicant shall submit evidence of an agreement between the applicant and FDOT for inclusion in the proportionate fair-share agreement.

(f)

When an application is deemed complete and sufficient for analysis, the applicant shall be advised in writing of eligibility for the program. If eligible, a proposed proportionate fair-share agreement will be prepared by the county attorney, which agreement will be delivered to the appropriate parties for review, including a copy to FDOT for any proposed proportionate fair-share mitigation on a SIS facility.

(g)

Approval of a proportionate fair-share agreement shall require the completion of a public involvement and notification process that shall include notification of potentially impacted parties to participate in a public workshop which must be conducted in the same manner as a neighborhood information meeting. The public workshop will review the project impacts, the roadway safety audit, and identify improvements that may be needed to address any health, safety and welfare operational improvements that need to be completed prior to commencement of development. The applicant shall be responsible for all costs associated with the public involvement and notification process, including county professional staff time, legal advertisements, and rental of facilities.

(h)

Once finalized by the parties, the agreement will be brought before the Collier County Planning Commission for its review and recommendations. The agreement and recommendations of the planning commission will then be forwarded to the Board for final consideration during a regularly scheduled board meeting. No proportionate fair-share agreement will be effective until approved by the board.

(i)

Any documents, plans or other information provided to the county as part of an application or agreement for proportionate share, including, but not limited to, design plans, shall at no cost to the county become the property of the county, regardless of whether the application is approved or denied.

(Ord. No. 06-51, § 1)

Sec. 75-203. - Determining proportionate fair-share obligation.

(a)

As provided in F.S. § 163.3180(16)(c), "Proportionate fair-share mitigation for concurrency impacts includes, without limitation, separately or collectively, private funds, contributions of land, and construction and contribution of facilities." Such mitigation must relate to: (a) Transportation facilities or facility segments specifically identified for funding in the five-year schedule of capital improvements in the capital improvements element of the local plan; (b) transportation facilities or facility segments specifically identified for funding in the long-term concurrency management system, should the county elect, in the future, to adopt a long-term concurrency management system; or (c) those facilities or segments specifically reflected in the five-year schedule of capital improvements in the next regularly scheduled update of the capital improvements element.

(b)

As provided in F.S. § 163.3180(16)(c), a development shall not be required to pay more than its proportionate fair-share. The fair market value of the proportionate fair-share mitigation for the impacted facilities shall not differ regardless of the method of mitigation.

(c)

The methodology used to calculate an applicant's proportionate fair-share obligation shall be as provided for in F.S. § 163.3180(12), which states as follows:

"The cumulative number of trips from the proposed development expected to reach roadways during the peak hour from the complete build out of a stage or phase being approved, divided by the change in the peak hour maximum service volume of roadways resulting from construction of an improvement necessary to maintain the adopted level of service, multiplied by the construction cost, at the time of developer payment, of the improvement necessary to maintain the adopted level of service." "Construction cost" includes all associated costs of the improvement.

More specifically:

Proportionate Fair-Share = Σ [(Development Trips;sub\sub;)/(SV Increase;sub\sub;) × Cost;sub\sub;]

Where:

Development Trips;sub\sub; = Those total project trips from the stage or phase of Development under review that are assigned to roadway segment "i". Note: Total project trips from the cumulative impacts of all phases of Development shall be used to determine impacted roadway segments, however mitigation will only be required from those trips which have not previously obtained concurrency.

The total development trips on a segment may exclude project trips for previous phases of a project if:

(1)

A final certificate of concurrency was issued for that phase of development prior to the effective date of the proportionate fair-share program; and

(2)

The project trips for the previously approved phase(s) significantly impacted the segment and were reserved in the concurrency management system on the roadway segment.

SV Increase;sub\sub; = Service volume increase provided by the eligible improvement to roadway segment "i";

Cost;sub\sub; = Adjusted cost of the improvement to segment "i". Cost shall include all improvements and associated costs, such as design, right-of-way acquisition, planning, engineering, inspection, utilities, mitigation, project financing and physical development costs directly associated with construction at the anticipated cost in the year it will be incurred, including a 25 percent contingency. As set forth below, costs will be adjusted to reflect the actual cost at time of permitting.

(d)

For the purposes of determining proportionate fair-share obligations, the county will accept improvement costs based upon one of the following methods:

(1)

Improvement costs based upon a certified and sealed engineer's cost estimate based on the county's approved 60 percent plans. Such cost estimate will be consistent with the unit bid costs of recent similar unit bid items for public projects, within Collier County, and within the last 12 months. In the absence of a comparable Collier County project within the last 12 months, the county may elect to accept bid costs from an adjacent county or FDOT project. An inflation factor consistent with the average localized increases reported within the last three years will be added to the base costs carried forward to the anticipated construction year. This cost estimate will be reviewed for reasonableness and approved/disapproved by the county. If disapproved, the grounds for the disapproval will be indicated to the applicant so that a revised cost estimate may be resubmitted.

(2)

Improvement costs based upon a certified and sealed engineer's cost estimate similar to the development of "60 percent plans" for a project defined in a proportionate fair-share agreement. The development of the estimate will follow the same procedures the county would follow in the process of obtaining 60 percent plans including but not limited to planning, design, right-of-way determination, mitigation, environmental permitting review and public involvement. Such cost estimate will be consistent with unit bid costs of recent similar unit bid items for public projects, within Collier County, and within the last 12 months. In the absence of a comparable Collier County project within the last 12 months, the county may elect to accept bid costs from an adjacent county or FDOT project. An inflation factor consistent with the average localized increases reported within the last three years will be added to the base costs carried forward to the anticipated construction year. This cost estimate will be reviewed for reasonableness and approved/disapproved by the county. If disapproved, the grounds for the disapproval will be indicated to the applicant so that a revised cost estimate may be resubmitted.

(e)

If the county has accepted right-of-way dedication for all or part of the proportionate fair-share payment, credit for the dedication shall be valued at the appraised fair market value as of the date of the application. Right-of-way that has been dedicated as part of the mitigation for site access operational impacts shall not be credited for fair-share calculations. The developer shall reimburse the county its full expense in acquiring the requisite independent appraisals, together with all expenses associated with the dedication, including but not limited to surveying, legal, title and recording expenses.

(f)

If the proposed development applying for proportionate fair-share significantly impacts one or more deficient segments in a Transportation Concurrency Management Area (TCMA), and the TCMA does not meet the adopted level of service standard, the method to calculate the proportionate fair-share shall be consistent with this section.

(Ord. No. 06-51, § 1)

Sec. 75-204. - Impact fee credit for proportionate fair-share mitigation.

(a)

Proportionate fair-share contributions shall be applied as a credit against impact fees to the extent that all or a portion of the proportionate fair-share mitigation is used to address the same capital infrastructure improvements contemplated by the county's impact fee ordinance.

(b)

Impact fee credits for the proportionate fair-share contribution will be determined when the transportation impact fee obligation is calculated for the proposed development. Impact fees owed by the applicant will be reduced per the proportionate fair-share agreement as they become due per the county impact fee ordinance. If the applicant's proportionate fair-share obligation is less than the development's anticipated road impact fee for the specific stage or phase of development under review, then the applicant or its successor must pay the remaining impact fee amount to the county pursuant to the requirements of the county impact fee ordinance.

(c)

The proportionate fair-share obligation is intended to mitigate the transportation impacts of a proposed development at a specific location. As a result, any road impact fee credit based upon proportionate fair-share contributions for a proposed development cannot be transferred to any other location unless provided for within the impact fee ordinance.

(d)

If the actual costs associated with the improvement identified in the proportionate fair-share agreement are less than that paid by the developer, developer shall be given a corresponding impact fee credit. If the number of units set forth in the county certificate of concurrency approval issued pursuant to the proportionate fair-share agreement for the development are substantially completed, such that giving additional impact fee credits would be insufficient, the county will refund this difference to the developer. If the actual costs associated with the improvement identified in the proportionate fair-share agreement are greater than that paid by the developer, then that difference will be deducted against any impact fee credits previously granted for the development. If the actual costs exceed the impact fee credits previously granted for the development, or if impact fee credits have been utilized such that the remaining credits are insufficient to meet the increased actual costs, then developer shall have 90 calendar days from written demand by the county to pay the difference to the county, failing which the county may withhold further development orders, including permits and certificates of occupancy, for the development. This obligation shall run with the land.

(Ord. No. 06-51, § 1)

Sec. 75-205. - Proportionate fair-share agreements.

(a)

Upon execution of a proportionate fair-share agreement and receipt of payment, the applicant shall receive a county certificate of concurrency approval.

(b)

Unless expressly set forth otherwise in the agreement, payment of the proportionate fair-share contribution is due in full within 90 calendar days from the county's approval of the agreement, failing which on county's written notice to developer, the agreement shall be deemed terminated in all respects. Developer has no right to cure this breach.

(c)

The agreement shall require the payment of the actual costs of improvements. Should construction associated with the proportionate fair-share agreement not occur within one year of the adoption of the agreement, the applicant on request shall provide sufficient surety in the form of a bond or letter of credit that shall be held until all actual costs have been determined and the facility is substantially completed.

(d)

All developer site related and off-site related improvements authorized under this chapter must be completed prior to commencing development.

(e)

Dedication of necessary right-of-way for facility improvements pursuant to an agreement must be completed prior to issuance of the final development order or recording of the final plat.

(f)

Any requested change to a development project subsequent to a development order may be subject to additional proportionate fair-share contributions to the extent the change would generate additional traffic that would require mitigation.

(g)

Applicants may submit a letter to withdraw from the agreement at any time prior to the execution of the agreement. The application fee and any associated costs to the county, including advertising, will be nonrefundable.

(Ord. No. 06-51, § 1)

Sec. 75-206. - Appropriation of fair-share revenues.

(a)

Proportionate fair-share revenues shall be placed in the appropriate project account for funding of scheduled improvements in the county CIE, or as otherwise established in the terms of the agreement. At the discretion of the county, proportionate fair-share revenues may be used for operational improvements prior to construction of the capacity project from which the proportionate fair-share revenues were derived. Proportionate fair-share revenues may also be used as the 50 percent local match for funding under the FDOT Transportation Regional Incentive Program (TRIP).

(b)

In the event a scheduled facility improvement is removed from the CIE, then the revenues collected for its construction may be applied toward the construction of another improvement within that same corridor or sector that would mitigate the impacts of development.

(Ord. No. 06-51, § 1)

Sec. 75-207. - Intergovernmental coordination.

Pursuant to policies in the Intergovernmental Coordination Element of the County Comprehensive Plan and applicable policies in Southwest Florida Regional Planning Council, the county shall coordinate with affected jurisdictions, including FDOT, regarding mitigation to impacted facilities not under the jurisdiction of the local government receiving the application for proportionate fair-share mitigation. An interlocal agreement may be established with other affected jurisdictions for this purpose.

(Ord. No. 06-51, § 1)

Sec. 75-208. - Alternative agreements.

(a)

A developer who otherwise qualifies for the proportionate fair-share program may, in lieu of entering into a proportionate fair-share agreement, offer in writing that the county instead consider entering into: (a) A development agreement pursuant to the Florida Local Government Development Act; (b) a Developer Contribution Agreement as set forth in section 74-205 of the Collier County Code of Laws and Ordinances; or (c) a developer agreement pursuant to the County's Home Rule authority. The county shall have ten business days from receipt of this offer to respond. Nothing set forth herein shall preclude developer from initiating a proportionate fair-share program application should the parties for any reason fail to enter into one of these alternative agreements.

(b)

Should the parties agree to enter into a development agreement pursuant to the Florida Local Government Development Act, they shall follow the process and procedure set forth in Article IV of Chapter 106 of the Collier County Code of Laws and Ordinances, with the exception that the development agreement pursuant to this chapter may encompass all matters authorized by F.S. §§ 163.3220—163.3243, known as the Florida Local Government Development Agreement Act.

(Ord. No. 06-51, § 1)