§ 10-323. Developer contributions/credits.

(a)

A credit shall be granted against the transportation impact fee imposed in section 10-322 pursuant to a written impact fee credit agreement that has been approved by the board for certain conveyance of right-of-way, including any required water retention areas, or for the contribution toward or construction of off-site road improvements to the major road network system required to be made pursuant to a development order by the county, a municipal development order that is the subject of a written impact fee credit agreement approved by the board for credit, or pursuant to an impact fee credit agreement made in connection with impact generating land development activity. Such conveyances or improvements shall be subject to the following standards:

(1)

The conveyance of right-of-way shall be an integral part of the major road network system; which are scheduled for right of way acquisition in the five (5) year county transportation improvement plan (TIP) or any municipal five (5) year CIP. The board may, by super majority vote, allow impact fee credits for conveyance of right-of-way for projects anticipated for acquisition beyond the five (5) year county TIP or beyond the first five (5) years of any municipal CIP.

(2)

The off-site road improvements to be constructed shall be an integral part of the major road network system which are scheduled for construction in the five (5) year county TIP or any municipal CIP, and shall exclude site-related road improvements. The board may, by super majority vote, allow for impact fee credits for construction of off-site road improvements for projects anticipated for construction beyond the five (5) year county TIP or beyond the first five (5) years of any municipal CIP.

(3)

Conveyance of right-of-way and off-site road improvements on principal and minor arterial or major or minor collector roads identified in the TPO long range transportation plan may be approved for a credit agreement by a supermajority vote of the board.

(4)

All conveyance of right-of-way or off-site road improvements, together with appurtenant right-of-way or easements required by the county, shall be conveyed to the county pursuant to ordinances, resolutions or regulations then in effect and in a form acceptable to the county attorney provided however, this requirement may be waived by the board where conveyance is to any municipality or the state.

(5)

If the development order requires the developer to contribute land or a public facility or construct, expand, or pay for land acquisition or construction or expansion of a public facility, or portion thereof, which complies with the requirements of subsections 10-323(a)(1) through (3), and the developer is also subject to impact fees or exactions to meet the same needs, the developer may enter into an impact fee credit agreement with the county that credits a development order exaction or fee toward an impact fee or exaction for the same need. For purposes of this section, the contribution or construction will meet the same needs if the improvement complies with the requirements of subsection 10-323(3). The nongovernmental developer need not be required, by virtue of this credit, to competitively bid or negotiate any part of the construction or design of the facility, unless otherwise required by the county, or unless the estimated cost of construction exceeds two million dollars ($2,000,000.00), in which case the project shall be competitively bid unless waived by the board.

(6)

Any credit granted for conveyance of right-of-way, or contribution, or construction shall be valued in accordance with subsection 10-323(c).

(7)

Any developer seeking a credit against impact fees for development within any municipality shall contact the county impact fee coordinator immediately and the county shall review all traffic studies and participate with the city during negotiation of the development order to be submitted to the board for approval.

(b)

A feepayer who desires to contribute land or construct an off-site road improvement in lieu of payment, or in partial payment, of the impact fee shall, prior to issuance of a building permit, submit to the county administrator or his designee a proposed plan for the contribution of the land or for the construction of the off-site road improvement to the major road network system. The county administrator or his designee shall review the proposed plan to determine if it meets the requirements of section 10-323. If the proposed plan does not meet the requirements for credit, the county administrator or his designee shall notify the applicant in writing. Upon such notice, the applicant may amend the application to meet the requirements for credit and, if applicable, may request the board to add all or a portion of the proposed off-site road improvements to the county transportation improvement plan during its yearly update. If the amended proposed plan meets the requirements for credit, the county administrator or his designee shall resubmit the proposed plan to the board. In the case of a credit requiring a supermajority vote, the county administrator or his designee shall also submit the proposed plan to the board. The proposed plan of construction, dedication or contribution shall include:

(1)

A designation and legal description of the impact generating land development activity for which the plan is being submitted;

(2)

A list of the contemplated off-site road improvements;

(3)

A legal description and a written appraisal prepared in conformity with subsection 10-323(c)(1) of this section of any land proposed to be dedicated or conveyed.

(4)

An estimate of proposed construction costs certified by a registered professional engineer; and

(5)

A proposed time schedule for completion of the proposed plan of construction, dedication or conveyance.

(c)

Upon submission of a complete plan, the county administrator or his designee shall schedule a presentation before 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 and owner written notice of the time and place of the presentation. The board may authorize the county attorney to prepare an impact fee credit agreement with the feepayer only if:

(1)

Such proposed plan is in conformity with contemplated improvements and additions to the major road network system contained in the first five (5) years of the county transportation improvement plan or a municipal CIP or otherwise approved by supermajority vote of the board, and

(2)

Such proposed plan, viewed in conjunction with other existing or proposed plans, will not adversely impact the cash flow or liquidity of any transportation impact fee trust account in such a way as to frustrate or interfere with other planned or ongoing growth-necessitated transportation improvements and additions to the major road network system; and

(3)

Such proposed plan, viewed in conjunction with other existing or proposed plans, will not create a detrimental imbalance between the arterial and collector roadways; and

(4)

The proposed plan is consistent with the public interest. Upon approval of a proposed plan of construction or contribution, the county administrator or his designee shall determine the amount of developer credit based upon the standards of valuation described in subsection (d) below, and shall approve the timetable for completion of construction.

(d)

The amount of developer credit to be applied shall be determined according to the following standards of valuation:

(1)

The value of contributed land shall be based upon a written appraisal of fair market value by a qualified and professional appraiser acceptable to the county and based on an appraisal of the fair market value of the property to be contributed, as of the date of the contribution. However, the county may require submission of an additional appraisal by an appraiser selected by the county, at the expense of the applicant, if the appraisal submitted by the applicant is in excess of the value derived on the basis of the current county property appraiser's assessment multiplied by a factor of 1.50.

(2)

The actual cost of construction of off-site road improvements to the major road network system based upon costs certified by a professional engineer. However, in no event shall any credit be granted for the construction of off-site road improvements in excess of the estimated costs approved by the county unless the construction project is competitively bid, in which case the credit shall be the actual cost or one hundred twenty (120) percent of the bid amounts whichever is less.

(e)

All construction cost estimates shall be based upon, and all construction plans and specifications and applicable competitive bidding procedures shall be in conformity with the road construction standards and procedures of the state, county or city, as applicable. All plans and specification shall be approved by the appropriate governmental entity prior to commencement of construction.

(f)

Upon approval for the contribution of land or construction of off-site road improvements, an impact fee credit agreement shall be entered into between the county and the owner. A nonrefundable processing, review and audit fee of two thousand five hundred dollars ($2,500.00) shall be due once the plan has been approved and prior to the preparation of an impact fee credit agreement by the county attorney. The agreement shall include, but not be limited to:

(1)

Identification of the parties including a listing of all persons or entities who, collectively, own one hundred (100) percent of the fee simple interest in the real property described in the agreement. If requested by the county attorney, the applicant and 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 agreement and identify any lienholder having lien or encumbrance on the real property which 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 reference instruments.

(2)

A finding that the construction or contributions contemplated by the agreement are consistent with the comprehensive plan.

(3)

A legal description of the site of the impact generating land development activity subject to the agreement.

(4)

The duration of the agreement shall be for a period of five (5) years unless the applicant requests a longer period in which the board may approve a period of up to twenty (20) years. All credits available under an impact fee credit agreements shall be transferable within the applicable road construction district. In no event shall the duration exceed twenty (20) years, exclusive of any moratoria, from the date of recording in the official records.

(5)

A description of the construction or contributions to the major road network system to be made pursuant to the agreement.

(6)

An acknowledgment that the construction or contributions contemplated under the agreement shall be construed and characterized as work done and property rights acquired by the county for the improvement of a road within the boundaries of a right-of-way and that the county has exclusive control of the construction or contributions, including whether or not they are subsequently transferred to another governmental agency.

(7)

Adoption of the approved time schedule for completion of the plan.

(8)

Determination of the amount of credit to be granted.

(9)

A requirement that the owner keep or provide for retention of adequate records and supporting documentation which concern or reflect total project cost of the off-site road improvements to be contributed. This information shall be available to the county, or its duly authorized agent or representative, for audit, inspection or copying, for a minimum of five (5) years from the termination of the agreement.

(10)

A requirement that the credit for the road impact fees identified in the agreement shall run with the land for which the transportation impact fee is being assessed and shall be reduced by the entire amount of the transportation impact fee due for each building permit issued thereon until the development project is either completed or the credits are exhausted or no longer available.

(11)

That the burdens of the agreement shall be binding upon, and the benefits of the agreement shall inure to, all successors in interest to the parties to the agreement.

(12)

An acknowledgment that the failure of the agreement to address any permit, condition, term, or restriction shall not relieve either the applicant or the owner, or their successors, of the necessity of complying with any law, ordinance, rule or regulation governing said permitting requirements conditions, terms or restrictions.

(13)

Compliance with the 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.

(14)

Annual review and audit of performance under the agreement to determine whether or not there has been demonstrated good faith compliance with the terms of the agreement and to report the credit applied toward payment of transportation 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 agreement, the agreement may be revoked or modified by the county.

(15)

To allow for modification or revocation of the agreement as is necessary to comply with relevant state or federal laws, if state or federal laws are enacted after the execution of the agreement which are applicable to and preclude parties' compliance with the terms of the agreement.

(16)

To allow amendment or cancellation by mutual consent of the parties to the agreement or by their successors in interest.

(17)

Recording of the agreement in the official records within fourteen (14) days after the county enters into the agreement.

(18)

An acknowledgment that the county will establish the time frame when the credit becomes available on all future roadways contained on the major road network. Such timeframe shall be based on when traffic volumes are expected to reach a level consistent with the classification of the road as a county collector or arterial road.

(g)

A developer seeking an impact fee credit agreement pursuant to proposed improvements under a municipal development order may request board approval of a written impact fee credit agreement prior to the issuance of a municipal development order. Any developer that anticipates seeking a credit pursuant to a municipal development order shall contact the county impact fee coordinator immediately upon becoming aware of its possible eligibility for a credit. The county shall be entitled to review all traffic studies and participate with the municipality in negotiations with the developer. Prior to municipal approval of the development order, the developer shall prepare and submit a proposed impact fee credit agreement to the county administrator for review and comment. If the board approves the impact fee credit agreement and the municipality approves the development order, the developer will be entitled to credits as set forth in the impact fee credit agreement pursuant to the provisions of this section without further board approval. The board may grant partial credits for proposed improvements under a municipal development order.

(h)

Any road right-of-way or land required to be dedicated to the county as a condition of development approval shall be dedicated no later than the time at which impact fees are required to be paid under this section. The portion of the fee represented by a credit for construction shall be deemed paid when the construction is completed and accepted by the county for maintenance or when adequate security for the completion of the construction has been provided.

(i)

Any developer contribution credit granted from the transportation impact fee shall only be for construction or contributions made to the major road network system to accommodate growth within the respective road construction district where the impact generating land development activity is located. Credits granted under this section shall run with the land and may be assigned to other developments, regardless of ownership, within the same road construction district.

(Ord. No. 15-14, § 1, 9-1-2015)