§ 74-203. Use of funds.

(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.

(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; Ord. No. 2013-63, § 4)