§ 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 subsections 74-205(b)(l) 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 certificate of occupancy or certificate of completion, 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 subsections 74-205(b)(l) and (b)(2) or contemplated improvements and additions to the regional water and/or sewer systems, or otherwise in compliance with subsections 74-205(b)(l) 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;

(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;

(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 subsection 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 non-refundable 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 subsections 74-205(b)(l) 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 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 of the building permit application. 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, or an adjacent district (for the purposes of road impact fees), 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. Should Developer be unable to commence Development as originally contemplated in the contribution agreement, the parties may enter into a reimbursement agreement, subject to annual appropriation, 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 certificate of occupancy or certificate of completion for a building permit shall pay the impact fee. 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; Ord. No. 2013-63, § 5; Ord. No. 2014-04, § 4)